Application of conciliation procedures (settlement and mediation agreements)
According to paragraph 9 of the regulatory decree on public procurement, the Law provides for the obligation of the customer, in case of detection of a violation by a potential supplier or supplier, to file a lawsuit with the court to recognize such a potential supplier or supplier as an unscrupulous participant in public procurement. The court does not have the right to accept a waiver of a claim and approve a settlement agreement in this category of cases. The generalization showed that in civil cases where a supplier was recognized as an unfair participant in public procurement by the courts, conciliation procedures were not applied. Conciliation procedures were applied by the court in the field of public procurement in terms of debt collection and penalties (penalties, fines) for claims to eliminate deficiencies in completed works and services, delivered goods, and warranty services. In total, for the period from 2018 to 9 months of 2020, 569 cases were considered by district courts using conciliation procedures, including: Nur-Sultan city - 120, Kostanay region - 76, West Kazakhstan region - 58, Karaganda region - 58, East Kazakhstan region - 49, Akmola region - 43, Mangystau region - 39, North Kazakhstan region - 37, Almaty city - 23, Zhambyl region - 13, Pavlodar region - 12, Almaty region - 9, Kyzylorda region - 9, Turkestan region - 9, Shymkent city - 8, Atyrau region - 6, Aktobe region - 0. On appeal, 20 rulings were overturned, which is 3.51%. The largest number of revoked rulings is in the West Kazakhstan region - 11, Mangystau region - 4, Pavlodar region - 3. One of the main reasons for the cancellation of rulings of the courts of first instance was the court's resolution of the issue of the rights and obligations of persons not involved in the case.
Application of conciliation procedures (settlement and mediation agreements)
Thus, by the ruling of the Judicial Board for Civil Cases of the Pavlodar Regional Court dated January 31, 2019, the IESEC ruling on approval of a mediation agreement in a civil case on the claim of JSC National Company Social Entrepreneurial Corporation P to the Agricultural Production Cooperative M for debt collection was canceled. In paragraph 5 of the mediation agreement approved by the court, the parties stipulated that the defendant undertakes to additionally pledge to the plaintiff a combine harvester KZS-10K-26, manufactured in 2017, no later than May 1, 2018, which at the time of the issuance of the contested court ruling was already pledged to the Partnership, which is confirmed by the certificate of state registration of the pledge Machines No. 53 dated December 6, 2017. The court of appeal, canceling the court's ruling, reasonably pointed out that, having considered the case without involving the Partnership in the case as a third party, the court of first instance unlawfully deprived the Partnership of the opportunity to protect its rights and legitimate interests as a pledgee. According to part 4 of Article 177 of the CPC, the court does not approve a settlement agreement if it contradicts the law or violates the rights and legitimate interests of others. In a similar case, the ruling of the Judicial Board for Civil Cases of the Pavlodar Regional Court of May 16, 2019, overturned the IESC ruling on approval of the mediation agreement in the civil case on the claim of DOGMA LLP against PV-System Block LLP for debt collection and penalties. In the case, it was established that at the time of the conclusion of the mediation agreement and its approval by the court, there was a legal dispute over the claim of I. V. to PV-System Block LLP on debt collection, under which court ruling measures were taken to secure the claim, an arrest and inventory of the defendant's property were made, including those specified in the mediation agreement. Thus, the mediation agreement affects the rights and legitimate interests of Ivanchenko V., as a recoverer in relation to the debtor of P LLP. Taking into account the above circumstances, the appellate judicial board lawfully canceled the court's ruling on the approval of the mediation agreement with the referral of the case for a new hearing.
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.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
