of December 23, 2005 No. 9
About some questions of application by courts of the legislation connected with debt collection for heat and electrical energy
Due to the questions of application of regulations of the legislation on debt collection arising in court practice for the heat and electrical energy consumed in the household purposes, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:
1. According to Item 2 of Article 482 of the Civil Code of the Republic of Kazakhstan (further - group of companies) the agreement of power supply is public. Between the power supplying organization and the subscriber the individual agreement of power supply which conditions shall correspond to conditions of the public agreement can be signed.
2. In case of non-execution (improper execution) by the consumer of the obligation on timely payment of the used energy the power supplying organization has the right to require debt collection and legal penalty (Item 1 of Article 295 of group of companies).
3. Under encumbrance, according to the subitem 9) of article 1 of the Law of the Republic of Kazakhstan of July 26, 2007 No. 310-III "About state registration of the rights to real estate", it is necessary to understand any restriction of the right to the real estate which arose according to the procedure, provided by the laws of the Republic of Kazakhstan or the agreement of the parties, and expressed in restriction of competence of the owner for ownership, use and (or) the order with real estate.
The debt for the energy used by the seller of premises encumbrance is not therefore in case of transfer of property to other person on premises based on the transaction, the obligation on its payment is obligation of the seller if other is not provided by the agreement on alienation of the specified property.
4. According to the obligations arising from the agreement of power supply aggregate term of limitation period is established. Citizens under the agreement of power supply shall make payment of the consumed energy monthly therefore the current of term of limitation period according to obligations of the subscriber begins with the moment of the termination of completion date of the obligation on payment of the accepted energy.
The payment procedure is determined by subscribers for the consumed energy according to provisions of Item 3 of article 18 of the Law of the Republic of Kazakhstan of July 9, 2004 No. 588-II "About power industry".
5. If as one party in the agreement of power supply the citizen performing in accordance with the established procedure business activity without formation of legal entity to such legal relationship (Item 3 of Article 19 of group of companies) acts, rules which regulate activities of legal entities, being the commercial organizations are respectively applied if other does not follow from the legislation or being of legal relationship.
If follows from being of legal relationship that the individual entrepreneur uses the consumed energy not for the purpose of business activity, he shall bear responsibility for non-execution or improper execution of the obligation on its payment as for energy use for household consumption.
6. According to article 4 of the Constitution of the Republic of Kazakhstan, this normative resolution is included the law in force, and also is obligatory and becomes effective from the date of official publication.
Chairman of the Supreme Court of the Republic of Kazakhstan
Judge of the Supreme Court of the Republic of Kazakhstan, secretary of plenary meeting
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