A comprehensive clarification of the circumstances is of particular importance for the proper resolution of disputes about unilateral modification or termination of contracts.
When determining the essential nature of a breach of contract, the court may take into account the following circumstances::
- is the violation intentional or committed due to gross negligence;
- did the debtor foresee and could he reasonably have foreseen that the violation was significant for the other party;
- is strict compliance with the violated obligation essential?;
- whether the non-performing party will suffer disproportionate losses as a result of the preparation or execution if the contract is terminated.9
In addition, during the resolution of disputes on the modification or termination of contracts, it is also recommended to clarify the following issues: the actual amount of obligations fulfilled; the debtor's interest in maintaining contractual relations and the measures taken by him to eliminate deficiencies in performance; the degree of good faith of the parties to the contract; the fixability or impossibility of eliminating violations; the presence of guilt or violation of the creditor's obligations; duration, frequency violations of the agreement; failure by the creditor to take actions to refuse to accept improper performance within a reasonable time, as well as prolonged failure by the debtor to cancel the contract; providing the debtor with a reasonable time to eliminate deficiencies and other facts.10
Jurisdiction
The jurisdiction of disputes on the amendment and termination of contracts is determined by the norms of Chapter 3 of the CPC. Such disputes, as a general rule, are subject to the jurisdiction of the court at the location of the defendant (Article 29 of the CPC). In addition, the law provides for: jurisdiction over investment disputes (parts 1-2 of Article 27 of the CPC), jurisdiction at the choice of the plaintiff under contracts with an indication of the place of execution (part 6 of Article 30 of the CPC), exclusive jurisdiction over the right to immovable property (part 1 of Article 31 of the CPC), as well as contractual jurisdiction (Article 32 of the CPC).
The analysis of the studied civil cases showed that the courts of the republic generally comply with the requirements of legislation on issues of territorial jurisdiction. However, there are some violations regarding the jurisdiction of cases.
By the ruling of the judge of the Balkhash district Court of the Almaty region dated December 20, 2022, the claim of A.K. to LLP "B" for termination of the contract and recovery of a monetary amount was returned. According to the materials of the civil case, the parties have concluded an agreement on the manufacture and installation of windows and doors on the terms of advance payment. Referring to the long-term violation of contractual obligations, plaintiff A.K. appealed to the court at the location of the defendant. In this ruling, the judge of the Balkhash District Court of the Almaty region concluded that the dispute was beyond the jurisdiction of this court, indicating that the claim could be filed at the place of conclusion or execution of the contract in Almaty.
By the ruling of the Judicial Board for Civil Cases of the Almaty Regional Court dated February 14, 2023, the act of the court of first instance was canceled with the referral of the civil case to the same court for consideration on the merits. The appellate instance proceeded from the fact that earlier, on December 29, 2021, by the ruling of the District court No. 2 of the Auezovsky district of Almaty, a civil case was filed by A.K. The application to LLP "B" for termination of the contract was sent for review by the jurisdiction of the Balkhash District Court of the Almaty region in connection with the establishment of the actual location of the defendant in the territory of the specified area.
Thus, the conclusions of the court of first instance on the non-jurisdiction of the dispute to the Balkhash District Court of the Almaty region are not subject to recognition as complying with the requirements of the law. By virtue of the general provision provided for in Part 1 of Article 29 of the CPC, the claim is filed in court at the location of the defendant. In the above statement of claim (re-filed with the Balkhash District Court), the plaintiff provided information about the defendant's registration in the area. The judge's reference to the jurisdiction of the dispute to this district court due to the application of part 9 of Article 30 of the CPC is contrary to the law defining jurisdiction at the choice of the plaintiff. In case of alternative jurisdiction, the law grants the applicant the right to choose the place of consideration of a civil case.
State duty
Article 35 of the Constitution of the Republic of Kazakhstan provides for the general requirement that the payment of prescribed taxes, fees and other mandatory payments is the duty and obligation of everyone.
The rates of state duty in courts are determined by Article 610 of the Tax Code. By virtue of subparagraph 1) of paragraph 1 of Article 610 of the Tax Code, as a general rule, a state fee is charged in percentage terms on property claims, depending on the amount of the claim.
The provisions of Part 1 of Article 104 of the CPC establish the procedure for determining the price of a claim, which in claims for early termination of a property lease (lease) agreement, with the exception of rental housing, is determined by the totality of payments for the use of property for the remaining term of the agreement (contract), but not more than three years (subparagraph 10 of part 1 of this article).
At the same time, subparagraph 7) of Article 610 of the Tax Code provides for the payment of a state fee in the amount of 0.5 monthly calculation index (hereinafter — MCI) for claims for modification or termination of a tenancy agreement, as well as other claims of a non-property nature or not subject to assessment.
In general, judicial practice has developed an approach to recognizing claims for termination or amendment of a contract as non-proprietary or not subject to evaluation. At the same time, from the point of view of improving legal regulation, the question arises of bringing the CPC and the Tax Code to a unified approach on the requirements for termination of the lease agreement.
Claims for amendment and termination of the contract are often filed together with claims for the return of property and the recovery of monetary amounts. For such cases, paragraph 5 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 No. 9 "On the application by courts of the Republic of Kazakhstan of legislation on court costs in civil cases" establishes the rule that claims containing both property and non-property claims are paid simultaneously by the state fee, based on the amount, a requirement set for each type.
Part 2 of Article 104 of the CPC provides for the requirement for the plaintiff to indicate the price of the claim. In case of an obvious discrepancy between the indicated price and the actual value of the sought-after property, the price of the claim is determined by the judge.
When resolving a dispute about the modification or termination of a contract with the simultaneous claim of property (monetary amounts), the courts must properly verify that the plaintiff has fulfilled the condition for specifying the price of the claim, as well as the completeness of payment of the state fee for each claim.
Legislation
The main regulatory legal acts to be applied in the generalized category of civil cases are:
The Constitution of the Republic of Kazakhstan dated August 30, 1995 (hereinafter referred to as the Constitution);
The Civil Code of the Republic of Kazakhstan (General Part), adopted by the Supreme Council of the Republic of Kazakhstan on December 27, 1994; the Civil Code of the Republic of Kazakhstan (Special Part), adopted by the Parliament of the Republic of Kazakhstan on July 1, 1999 (hereinafter - the Civil Code);
The Civil Procedure Code of the Republic of Kazakhstan dated November 3, 2015 (hereinafter - CPC);
The Code of the Republic of Kazakhstan "On Subsoil and Subsoil Use" dated December 27, 2017;
The Land Code of the Republic of Kazakhstan dated June 20, 2003;
The Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" dated December 25, 2017 (hereinafter referred to as the Tax Code);
The Law of the Republic of Kazakhstan dated April 16, 1997 "On Housing Relations";
The Law of the Republic of Kazakhstan dated July 5, 2000 "On Financial Leasing";
The Law of the Republic of Kazakhstan dated May 4, 2010 "On Consumer Rights Protection";
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 No. 9 "On the application by Courts of the Republic of Kazakhstan of legislation on court costs in civil cases";
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 18, 1997 No. 9 "On judicial practice of applying Legislation on the privatization of residential premises by citizens from the State housing Stock";
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 25, 2016 No. 7 "On judicial practice of consideration of civil cases on disputes arising from bank loan Agreements".
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