APPEAL to the Board of Appeal against the decision of the Talgar District Court
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The Board of Appeal for Civil and Administrative Cases of the Almaty Regional Court.
53A Nursultan Nazarbayev Ave., Taldykorgan
8 7282 558 756.
from: C.A.B.
IIN ..............
Almaty region, with..... street....... №27
+7 ………..
Representative by proxy:
Law Company Zakon i Pravo LLP
BIN 190240029071
79 Abylai Khan ave., Almaty,
office 304.
info@zakonpravo.kz / www.zakonpravo.kz
+ 7 727 971 78 58; +7 708 971 78 58.
Defendant: An association of legal entities in the form of the Cherry Orchard Association represented by Chairman Mamlyutova E.A.
Almaty region, Talgar district, Kendala village, Dachnaya St. 31
BIN 091240000332
THE APPEAL
on the decision of the Talgar District Court of the Almaty region dated February 7, 2023
On February 7, 2023, the Talgarsky District Court of the Almaty region, composed of the presiding judge Muhadiuli I., with the secretary of the court session, A. Egizbayeva, having considered in open court the civil case on the claim of Ch.A.B. to the Association of legal entities in the form of the association "Association "Cherry Orchard" for the recovery of moral damage, DECIDED: The claim of Ch.A.B. to refuse to collect moral damages from the Association of legal entities in the form of the association "Cherry Orchard Association".
We consider the decision of the court of first instance to be unjustified and subject to change on the following grounds:
According to paragraphs 1,4, paragraph 1 of Article 427 of the CPC RK, the grounds for revoking or changing a court decision on appeal are:
1) incorrect definition and clarification of the range of circumstances relevant to the case;
2) violation or incorrect application of the norms of substantive or procedural law.
I consider the decision of the court of first instance to be unlawful and unjustified on the following grounds:
When making the decision, the court incorrectly determined and clarified the range of circumstances relevant to the case.
In accordance with paragraph 1 of Article 917 of the Civil Code of the Republic of Kazakhstan, damage (property and (or) non-property) caused by unlawful actions (inaction) to property or non-property benefits and rights of citizens and legal entities is subject to compensation by the person who caused the damage in full.
In the reasoning part of the decision, the court refers to Article 951 of the Civil Code. moral harm is the violation, diminution or deprivation of personal non-property benefits and rights of individuals, including moral or physical suffering (humiliation, irritation, depression, anger, shame, despair, physical pain, inferiority, discomfort, etc.) experienced (suffered, experienced) by the victim as a result of the offense committed against him. Moral damage is compensated by the causer in the presence of the causer's fault.
The defendant's guilt is proved by evidence provided to the court, such as an act on power outage, title documents for real estate, documents certifying disability, the retirement age of the plaintiff's mother and other evidence.
In addition, earlier on 01/27/2022, by a decision of the judicial board for Civil Cases of the Almaty Regional Court, the actions of the Association of Legal Entities in the form of the association "Cherry Orchard" association to turn off electricity to the house of Ch.A.B. were declared illegal.
Thus, the plaintiff C.A.B. and his mother, a pensioner, a disabled person of the 2nd group C.L.A., were without electric power for more than a year, so they could not use household electrical appliances that are necessary in everyday life. Thus, the defendant deprived the plaintiff of a vital resource.
In addition, the defendant falsified evidence in a civil case, namely an explanatory note on behalf of U.G., which contradicts Part 1 of Article 416 of the Criminal Code of the Republic of Kazakhstan falsification of evidence in a civil case by those involved in the case. Earlier, we drew the court's attention to this fact, but the court ignored our demands.
In such difficult times, the defendant, abusing his position, arbitrarily turned off the electricity supply to the plaintiff's house, contrary to the current legislation.
According to Article 224 of the Civil Procedure Code of the Republic of Kazakhstan, the court's decision must be lawful and justified.
A decision is lawful when it is made in compliance with the norms of procedural law and in full compliance with the norms of substantive law applicable to this legal relationship, or is based on the application, if necessary, of a law governing a similar relationship, or proceeds from the general principles and meaning of civil legislation and the requirements of good faith, reasonableness and fairness.
A decision is considered justified if it reflects facts relevant to the case, confirmed by evidence examined by the court that meet the requirements of the law on their relevance, admissibility and reliability, or are well-known circumstances that do not need to be proven and are collectively sufficient to resolve the dispute.
The decision of the Talgar District Court of the Almaty region dated February 7, 2023 was issued in violation of the above requirements.
In accordance with Part 1 of Article 8 of the CPC RK, everyone has the right to apply to the court for protection of violated or disputed rights, freedoms or legitimate interests.
According to paragraph 3 of Article 424 of the CPC RK, the court of appeal has the right to reverse the decision of the court of first instance and make a new decision.
Based on the above and in accordance with Articles 917, 924 of the Civil Code of the Republic of Kazakhstan and Articles 424, 427 of the Civil Procedure Code of the Republic of Kazakhstan,
P R O W U :
The decision of the Talgar District Court of the Almaty region dated February 7, 2023, to cancel and make a new decision on the satisfaction of claims for compensation for moral damage in full.
With respect,
Representative by proxy
Nurlanov N.N.
"____"__________2023 the year.
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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