Appeal against a court decision in a civil case
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To the judicial Board for Civil Cases of Atyrau Regional Court
from the plaintiff – defendant in the counterclaim
IP "Zh№ G.D."
Atyrau, md. With no., A. K street No.,
house no.no./3, sq. 4
IIN: no. no.no.
Appeal against the decision of the Atyrau City Court dated May 03, 2023 in the civil case No. 2310-23-00-2/1323.
On 05/03/2023, the Atyrau City Court considered civil case No. 2310-23-00-2/1323 on the claim of IP "Zh no.G.D." to E no.I.K. for debt collection and on the counterclaim of E no.I.K. to IP "Zh no.G.D." for recognition of the service agreement No. 03-09-2022 dated September 03, 2022 invalid. The court's decision to satisfy the claim of IP "Zh no.g.D." and the counterclaim was denied.
I believe that the court's decision regarding the refusal to satisfy the claim of IP "Zh no.G.D." is illegal and unfounded, since the court: 1. incorrectly identified and clarified the range of circumstances relevant to the case; 2. the conclusions of the court set out in the decision do not correspond to the circumstances of the case; 3. the court was incorrect the norms of substantive and procedural law are applied
The norms of substantive law are considered violated or improperly applied if the court:
1) has not applied the applicable law;
2) applied a law that is not applicable;
3) misinterpreted the law.
At the hearing, it was established that the subject of agreement No. 03-09/2022 dated 09/03/2022 /hereinafter referred to as the Agreement/ between IP "Zh no.g.D." and E no.i.K. is to assist the plaintiff in obtaining insurance payments, both in court and out of court. The defendant undertook to pay for the service rendered, but did not fulfill his obligation, and therefore a debt was incurred.
At the hearing, the defendant, E no.i.K., confirmed that he had received the amount of the insurance payment.
In support of the decision, the court argues that on January 27, 2023, the power of attorney addressed to J.No. A.J. was canceled. However, according to Article 171 of the Civil Code of the Republic of Kazakhstan, the principal is obliged to notify the person to whom the power of attorney was issued, as well as third parties known to him, for whom the power of attorney was issued. The rights and obligations that arose as a result of the actions of the person to whom the power of attorney was issued before that person learned or should have learned about its termination remain valid for the person who issued the power of attorney and his legal successors in relation to third parties. In addition to the above, the court did not take into account the provisions of clause 4.2. of the Agreement, according to which disputes and disagreements between the parties are resolved through negotiations.
According to Article 273 of the Civil Code of the Republic of Kazakhstan, unilateral refusal to fulfill an obligation and unilateral modification of its terms are not allowed, except in cases stipulated by law or contract.
According to Article 402 of the Civil Code of the Republic of Kazakhstan:
An agreement on the amendment and termination of a contract is made in the same form as the contract, unless otherwise provided by law, contract or business practices.
A claim to amend or terminate an agreement may be filed by a party in court only after receiving a refusal from the other party to the proposal to amend or terminate the agreement or failure to receive a response within the time period specified in the proposal or established by law or the agreement, and in its absence – within thirty days.
According to Part 4 of Article 404 of the Civil Code of the Republic of Kazakhstan, in case of unilateral refusal to perform a contract, the party must notify the other party no later than one month in advance, unless otherwise provided by this Code, other legislative acts or an agreement of the parties.
However, the defendant, E.I.K., did not provide the court with evidence that he had notified the plaintiff of the revocation of the power of attorney, the termination of the Contract and the reasons for its termination, thus violating the provisions of the Civil Code of the Republic of Kazakhstan. The court did not take these circumstances into account and did not evaluate them.
The court also indicated in the decision that the insurance payment was paid on the basis of the defendant's statement E no.I.K. However, the court was not provided with documents confirming the fact that defendant E no.I.K. applied to the insurance company. The plaintiff also attached documents to the claim confirming that it was the plaintiff who applied to the insurance company for insurance benefits and performed other actions necessary to fulfill obligations under the Contract.
Another argument in support of the decision, the court pointed out that entrepreneurial activity is carried out personally by an individual, in accordance with art. 31 of the Entrepreneurial Code of the Republic of Kazakhstan, i.e. implies the personal participation of an entrepreneur in entrepreneurial activity. However, I consider this conclusion of the court to be incorrect, since the Entrepreneurial Code of the Republic of Kazakhstan distinguishes between personal and joint entrepreneurship in terms of ownership of property. For example, if a sole proprietor has a cafe for rent, this does not mean that the sole proprietor personally has to cook and serve the cafe's customers. For this, you can hire an administrator, kitchen staff, and waiters. Thus, the law does not prohibit sole proprietors in the form of personal entrepreneurship from having employees, the court also came to this conclusion in the decision, but interpreted it against the plaintiff! Consequently, IP "Zh.G.D." had the right to instruct Zhanbyrbai A.Zh. to fulfill the Contract, regardless of whether there was an employment relationship between them or not. Moreover, according to clause 2.2.6. of the Agreement, the defendant E.I.K. provides the Attorney with a power of attorney to obtain the necessary documents. The defendant, E.I.K., had no questions as to why he had issued the power of attorney in the name of J.A.Zh., and not IP "J.G.D.". The court also stated in the decision that "Order No. 1 dated September 05, 2021 "On appointment to the position of head of J.A.Zh." contradicts the norms of current legislation. Also, the plaintiff has not provided evidence confirming the employment or other relations between the plaintiff and J.A.J.". The court does not specify in the decision which specific norms of legislation the plaintiff violated. The order submitted to the court, according to its text, was issued on the basis of Articles 34, 36 of the Labor Code of the Republic of Kazakhstan, has not been challenged or canceled by anyone. But the court did not take this fact into account.
The court also indicated in the decision that the act of completed works had not been signed. However, the court did not specify on the basis of which clause of the Contract or the requirements of the legislation of the Republic of Kazakhstan, in order to make payments under the Contract, an act of completed work must be signed. The insurance payment was received, both sides did not dispute it.
Thus, the court violated the requirements of paragraph 11 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On judicial decision on civil cases" dated 11.07.2003 No. 5 /hereinafter – NP of the Supreme Court of the Republic of Kazakhstan/. "It is not allowed to unilaterally present in the decision the arguments and evidence of the party in whose favor the court made the decision. The court is obliged to indicate on what grounds it did not accept the arguments of the other party and did not apply those rules of substantive law to which this party referred. The decision cannot be based on assumptions about the circumstances of the case."
According to paragraph 15 of the NP of the Supreme Court of the Republic of Kazakhstan, "If the court, having assessed the evidence, individually and in their entirety, finds that some of the submitted materials, witness statements, and other factual data do not confirm the circumstances to which the parties referred as the grounds for their claims and objections, then it is obliged to motivate conclusions about this in the motivation part of the decision... In the reasoning part of the decision, it is necessary to indicate the substantive law applied by the court to these legal relations and the procedural rules that guided the court." However, the court ignored the specified requirement of the NP of the Supreme Court of the Republic of Kazakhstan, the court's conclusions are not motivated by anything, one can only guess why the court made such conclusions.
Based on the above, in accordance with Articles 402-404 of the Civil Procedure Code of the Republic of Kazakhstan, I request:
- to cancel the decision of the Atyrau City Court of May 03, 2023 in the civil case No. 2310-23-00-2/1323 regarding the refusal to satisfy the claim of IP "Zh.G.D." to E.I.K. for debt collection, to make a new decision to satisfy the claim of IP "Zh.G.D.";
- leave the rest of the decision unchanged.
Application: .
05/22/2023 IP "Zh.G.D."
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
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