Application for Review of Judicial Acts Due to Newly Discovered Circumstances
In accordance with subparagraph 2) of part two of Article 455 of the Civil Procedure Code (CPC), newly discovered circumstances shall be understood to include criminal actions of the parties to the case, their representatives, or judges, committed during the examination of the given civil case, which have been established by a court verdict that has entered into legal force (for example, corruption, bribery, or threats against a party, representative, or witnesses).
Convictions of the persons listed in subparagraph 2) of part two of Article 455 of the CPC for criminal offenses not committed during the examination of the civil case in question do not constitute newly discovered circumstances.
The circumstances listed in this paragraph and paragraph 5 of this regulatory ruling may be established not only by a verdict, but also by other rulings that have entered into legal force issued by courts or other state bodies and officials exercising functions of criminal prosecution — such as rulings on the termination of a criminal case due to the expiry of the statute of limitations, an act of amnesty, the death of the accused, or the accused not having reached the age of criminal responsibility.
Pursuant to subparagraph 3) of part two of Article 455 of the CPC, newly discovered circumstances also include the annulment of judicial acts or acts of other state bodies, in accordance with legal procedures, if such acts served as a basis for the issuance of a judicial act in a civil case.
An act of another state body refers to a ruling by an official of an authorized state body in an administrative offense case, a unilateral or collegial act of an executive authority, or acts issued by local representative or self-government bodies.
Annulment of such acts refers to a court finding them unlawful, or their annulment by a higher authority or official in accordance with legal procedures.
Civil Case No. 7199-23-00-2а/6264 dated November 28, 2023
The Judicial Panel on Civil Cases of the Court of Astana, Republic of Kazakhstan, composed of the presiding judge D.G.S., judges A.F.F., K.A.Z., with the participation of the plaintiff's representative G.N.K., third parties not asserting independent claims regarding the subject matter of the dispute D.M.P., B.S.M., B.D.O., the representative of the LLP "AUTO Lombard Zhana Kredit" B.D.S., and private judicial enforcement officer A.A.A. (via mobile video conference), considered in an open court session the electronic civil case based on the lawsuit of S.B.B. against K.A.A.-N. on invalidation of purchase and sale transactions, submitted following the plaintiff’s appellate complaint against the decision of the Almaty District Court of Astana dated March 28, 2023, and found:
S.B.B. filed a lawsuit against the defendant K.A.A. seeking invalidation of purchase and sale transactions involving vehicles executed between the parties on October 8, 2018.
The plaintiff’s claim was based on the assertion that he did not sign or approve the contested transactions, which were executed without his will and caused him damages in the amount of 47,000,000 KZT.
By the decision of the Interdistrict Civil Court of Astana dated March 28, 2023, the claim was denied in full.
In the appellate complaint, the plaintiff requested the court to annul the decision and terminate proceedings due to the lack of evidence of the facts established by the first-instance court, inconsistency of the conclusions drawn in the decision with the case circumstances, and violations of procedural law.
Other participants in the case, duly notified of the time and place of the appellate hearing, did not appear, which, under part 2 of Article 418 of the CPC, does not prevent the consideration of the case.
Having examined the case materials and appellate complaint, and heard the parties, the panel finds that the first-instance court’s decision is subject to annulment on the following grounds:
Grounds for annulment or amendment of a court decision in appellate proceedings are set out in Article 427 of the CPC.
Violations by the first-instance court in this case were established.
The case materials indicate that on October 8, 2018, a sale and purchase agreement in simple written form was executed between S.B.B. and K.A.A., under which the defendant acquired a 2017 "TOYOTA LAND CRUISER 200", registration number …..01.
On the same day, another sale and purchase agreement in simple written form was executed between the same parties, under which the defendant acquired a 2016 "TOYOTA LAND CRUISER PRADO 150", registration number …..01.
According to expert opinion No. 2547 dated December 12, 2019, the signatures of S.B.B. in the disputed transactions were not made by him, but by D.D.K.
On October 15 and 17, 2018, LLP "Zhana Kredit" (at the time of judgment, LLP "AUTO Lombard Zhana Kredit") and K.A.A. concluded loan agreements, under which the defendant received loans of 10,000,000 KZT and 6,300,000 KZT, respectively.
To secure these obligations, pledge agreements were executed on October 15 and 17, 2018, under which the vehicles "TOYOTA LAND CRUISER 200" and "TOYOTA LAND CRUISER PRADO 150" were pledged to LLP "Zhana Kredit".
Both pledges were registered with the traffic police authorities.
S.B.B. filed a complaint with the police requesting criminal prosecution of K.A.A. for the unlawful re-registration of the disputed vehicles. As a result, K.A.A.’s actions were qualified under paragraph 2 of part 4 of Article 190 of the Criminal Code of the Republic of Kazakhstan (fraud).
However, by the verdict of the District Court No. 2 of the Saryarka District of Nur-Sultan dated May 23, 2022, K.A.A. was acquitted for lack of corpus delicti.
The traffic police authorities annulled the registration of the liens without any procedural decision by the court.
Consequently, on October 27, 2022, S.B.B. sold the disputed vehicles, which were then resold multiple times.
As of the date of the court decision, ownership of the "TOYOTA LAND CRUISER 200" belonged to Nurov R.S., and the "TOYOTA LAND CRUISER PRADO 150" belonged to B.S.M.
When resolving the dispute and rejecting the claim, the first-instance court ruled that the plaintiff's claims were unlawful.
The appellate panel disagrees with this decision on the following grounds:
According to part 1 of Article 223 of the CPC, a court decision resolving the substance of the case shall be issued in the form of a judgment.
As shown by the case file, the initial claim was filed by S.B.B. on January 31, 2020.
By default judgment of the Almaty District Court of Nur-Sultan dated April 28, 2020, S.B.B.’s claims were granted and the purchase and sale transactions declared invalid.
Subsequently, by ruling of the Almaty District Court of Astana dated December 8, 2022, the application of LLP "AUTO Lombard Zhana Kredit" for review due to newly discovered and new circumstances was granted.
The default judgment dated April 28, 2020, was annulled.
Upon new consideration, by the decision of the Almaty District Court of Astana dated March 28, 2023, the claim was denied in full.
However, by ruling of the Judicial Panel on Civil Cases of the Supreme Court of the Republic of Kazakhstan dated June 27, 2023, the ruling of the Almaty District Court of Astana dated December 8, 2022, and the appellate ruling dated March 17, 2023, were annulled and a new decision rendered.
The application of LLP "AUTO Lombard Zhana Kredit" for review of the default judgment dated April 28, 2020, was denied.
Thus, in violation of the CPC, two conflicting judgments have been issued in this civil case — the default judgment of April 28, 2020, and the judgment of March 28, 2023 — which is inadmissible.
Under such circumstances, due to procedural violations by the first-instance court, the judicial act of March 28, 2023, is subject to annulment, as there is an earlier judgment that entered into legal force.
Considering these violations, the appellate panel does not address the arguments of the parties or the appellate complaint regarding the validity of the claim or the decision of March 28, 2023.
Therefore, guided by paragraph 3 of Article 424 of the CPC, the Judicial Panel Rules:
The decision of the Almaty District Court of Astana dated March 28, 2023, is annulled.
The plaintiff's appellate complaint is partially satisfied.
This ruling enters into legal force on the date of its pronouncement.
The ruling may be reviewed within six months from the date it enters into legal force by the Supreme Court of the Republic of Kazakhstan in cassation procedure in accordance with Articles 434–437 of the Civil Procedure Code of the Republic of Kazakhstan.
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