A private complaint against the ruling of a District Court judge
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To the court of appeal
Almaty City Court
from the applicant A.G.
IIN ...
Almaty, pr. C..., d. 1,
183 sq.m., tel. 8701....
Representative: lawyer Sabit Davletovich Nigmetov
IIN 820125350700
79 Abylai Khan ave., office 313, Almaty
phone: 87009785755, .
private complaint against the ruling of the judge of the District Court No. 2 of Almaly district of Almaty Kanapyanova A.D. dated 06/13/2023
On June 13, 2023, by the ruling of the judge of the District Court No. 2 of the Almaly district of Almaty, Kanapyanova A.D., the application for cancellation of the court order dated October 13, 2020 was denied. By a court order dated 10/13/2023, alimony payments were collected from Saurambaev Beibut Kazhimkanovich in favor of D.J.Muratovna for the maintenance of 2 minor children in the amount of 1/3 of all types of earnings and other income.
I do not agree with the judge's ruling, and I consider it illegal and unfounded on the following grounds.
According to part 1 of Article 142 of the Civil Procedure Code of the Republic of Kazakhstan, a judge cancels a court order if the debtor objects to the stated claim within the prescribed period or if another person, whose rights and obligations are affected by the court order, submits a statement about the inconsistency of the court order with the requirements of the law.
According to Article 8 of the Civil Code of the Republic of Kazakhstan:
"3. The exercise of civil rights must not violate the rights and legally protected interests of other subjects of law, and must not cause damage to the environment.
Citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation, the moral principles of society, and entrepreneurs, as well as the rules of business ethics.
This obligation cannot be excluded or limited by the contract. Good faith, reasonableness and fairness of the actions of participants in civil law relations are assumed.
Actions of citizens and legal entities aimed at harming another person, abuse of the right in other forms, as well as the exercise of the right in contradiction with its purpose are not allowed.
No one has the right to take advantage of their unscrupulous behavior.
In case of non-compliance with the requirements provided for in paragraphs 3 to 6 of this article, the court may refuse to protect the person's right."
The court order affected my rights as a guardian of minor children born in marriage to S.B.Kazhimkanovich. The judge did not find any violations of my rights, although he indicated in the ruling that 50% of S.B.K.'s salary was sent to D.J.M.'s accounts, according to his statement. However, this is essential for resolving the case on its merits.
I ask the appellate instance to assess the following circumstances: the court order for the recovery of alimony from S.B.K. in favor of D.J.M. was issued on 13.10.2020, although S.B.K.'s salary for the period from 07/01/2019 to 07/01/2022, as well as for the period from 07/01/2022 to 07/01/2025 is transferred to the accounts of D.J.Muratovna, in accordance with the notarial agreements of Saurambaev B.K. dated 09/18/2019 and 09/26/2022, the court's conclusion that the debtor has the right to dispose of his remaining salary amount does not correspond to the circumstances of the case. Since the court order is in favor of D.J.M. It was issued on 13.10.2020, and 50% of S.B.K.'s salary was transferred to D.J.M. from 01.07.2019, when S.B.K. was not yet in debt to D.J.M. In his application for a court order, D.J.M. indicates that S.B.K. does not voluntarily provide financial assistance.
D.J.M. could not have been unaware that S.B.K.'s salary of 50% was being transferred to her bank account, because it was impossible not to notice the receipt of the amounts that had been transferred on the account.
I ask the court of appeal to also pay attention to the fact that the CHSI B.G.S. has enforcement proceedings no.1465/21-75-70 dated 05/26/2021 on the recovery from S.B.K. in my favor of the amount of 36,706,241 tenge. However, S.B.K. did not pay a single tenge for this enforcement proceeding. And his salary in the amount of 50%, according to notarized consents, was transferred to the bank account of D.J.M. Although in the same way Saurambayev B.K. He could transfer part of his salary to my bank account to pay off debts on enforcement proceedings No.1465/21-75-70 dated 05/26/2021
In total, there are 4 enforcement proceedings against S.B.K., for which I am the recoverer. There are no other enforcement proceedings against S.B.K. according to the Automated Information System of the Enforcement Authorities of the Ministry of Justice of the Republic of Kazakhstan (AIS OIP). I believe that S.B.K. committed all the above actions together with D.J.M. out of personal hostility.
I believe that in such circumstances, there is a violation of the Law, namely, part 2 of Article 138 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family," according to which "If parents voluntarily do not provide funds for the maintenance of their minor children, as well as adult children studying in the system of general secondary, technical and vocational, post-secondary education, in the system of full-time higher education at the age of twenty-one, these funds are recovered from them in court." Since D.J.M. In October 2020, she indicated in a court order application that S.B.K. was not voluntarily providing financial assistance, knowing that S.B.K. had been transferring her wages to a bank account since July 2019.
The actions of S.B.K. and D.J.M. violated the norms of Article 8 of the Civil Code of the Republic of Kazakhstan, as their actions were aimed at reducing the amount of maintenance of minor children living with me, thereby D.J.M. abused the right and violated the moral principles of society.
Based on the above, please:
- to cancel the ruling of the judge of the District Court No. 2 of the Almaly district of Almaty, K.A.D., dated 06/13/2023, and to issue a new ruling on the cancellation of the court order dated October 13, 2023 in the civil case No. 7520-20-00-2/8763.
Appendices: a copy of S.B.K.'s consent to transfer wages to the bank account of D.J.M. dated 09/18/2019, a copy of S.B.K.'s consent to transfer wages to the bank account of D.J.M. dated 09/26/2022, a screenshot of the AIS IPO website, information on enforcement proceedings – 4 pcs., a copy of the power of attorney for the representative, a copy of the notice of representation, a copy of the lawyer's certificate.
06/26/2023 A.G.
representative Nigmetov S.D.
Attention!
The Law and Law Law Firm draws your attention to the fact that this document is basic and does not always meet the requirements of a specific situation. Our lawyers are ready to assist you with legal advice and drafting any legal document that suits your situation.
For more information, please contact a Lawyer/Lawyer by phone; +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
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