Cases of limitation of a citizen's legal capacity

The procedure for consideration and resolution by the courts of cases on recognition of a citizen as having limited legal capacity is regulated by Chapter 35 of the CPC (Articles 323-327), applying the provisions of Article 27 of the Civil Code.

The ability of a citizen to acquire and exercise civil rights by his actions, to create and fulfill civil duties for himself (civil legal capacity) arises in full upon reaching the age of majority, that is, upon reaching the age of eighteen (paragraph 1 of Article 17 of the Civil Code).

Human and civil rights and freedoms may be restricted only by laws and only to the extent necessary to protect the constitutional order, public order, human rights and freedoms, public health and morals (paragraph 1 of Article 39 of the Constitution of the Republic of Kazakhstan). No one may be restricted in their legal capacity or legal capacity except in cases and in accordance with the procedure provided for by legislative acts (paragraph 1 of Article 18 of the Civil Code).

A citizen may be recognized as having limited legal capacity only by a court decision only if there are grounds provided for by the Civil Code and the CPC.

A citizen who, as a result of the abuse of alcoholic beverages or narcotic substances, puts his family in a difficult financial situation may be limited by a court in his legal capacity and guardianship is established over him. He has the right to independently make small household transactions. He can make other transactions, as well as receive earnings, pensions and other incomes and dispose of them only with the consent of the trustee (clause 1, Article 27 of the Civil Code).

As follows from Part 1 of Article 323 of the CPC, a citizen who abuses narcotic drugs, psychotropic substances or their analogues can also be recognized as having limited legal capacity.

Limitation of a citizen's legal capacity is one of the legal means of overcoming antisocial behavior of a citizen.

In accordance with Part 1 of Article 323 of the CPC, a case on recognizing a citizen as having limited legal capacity may be initiated at the request of his family members, close relatives, regardless of their joint residence with him, the prosecutor, the guardianship or guardianship authority. Only the specified circle of subjects is entitled to act as applicants. Applications submitted by other persons for the restriction of a citizen's legal capacity are not accepted for court proceedings.

A case on recognizing a citizen as having limited legal capacity is initiated in order to protect both the interests of a person with limited legal capacity by establishing (appointing) guardianship over him and members of his family (Part 4 of art. 323 of the CPC). The applicant is exempt from paying court costs.

The court, having established that the person who submitted the application acted in bad faith in order to knowingly unreasonably restrict or deprive the citizen of his legal capacity, collects from him all court costs related to the consideration of the case (part 2 of art. 326).

Cases of this category are considered in the order of special proceedings within up to one month from the date of completion of the preparation of the case for trial.

An application for recognition of a citizen as having limited legal capacity is filed with the court at the place of residence of this citizen, and if the person is placed in a psychiatric (neuropsychiatric) medical institution, then at the location of this institution (Part 5 of art. 323 of the CPC).

An application for recognition of a citizen as having limited legal capacity must comply with the requirements for statements of claim (Articles 148, 149 of the CPC) and the requirements for an application for recognition of a citizen as having limited legal capacity (Articles 324 of the CPC).

The application for recognition of a citizen as having limited legal capacity should set out the circumstances indicating that a person who abuses alcoholic beverages or narcotic drugs, psychotropic substances or their analogues puts his family in a difficult financial situation.

Article 303 of the CPC establishes a shortened period for preparing a case for trial within 10 working days from the date of acceptance of an application, including an application for recognition of a citizen with limited legal capacity, in court proceedings.

An extension of this period is not allowed. When preparing a case for trial, the judge is obliged to identify and involve in the process all adult family members of the citizen against whom a case of disability has been initiated.

They participate in the case as stakeholders.

According to Article 326 of the CPC, the court considers an application for recognition of a citizen as having limited legal capacity with the participation of the citizen himself, if possible due to his state of health, the applicant, the prosecutor and a representative of the body performing guardianship or trusteeship functions.

When considering a case on recognizing a citizen as having limited legal capacity, the court must examine evidence confirming excessive and systematic use of alcoholic beverages or the use of narcotic drugs, psychotropic substances or their analogues, which is contrary to the interests of his family.

In particular, evidence may include: acts of the police and judge's decisions on bringing a citizen to justice for hooliganism; certificates from medical detox centers; acts of the administration on the suspension of a citizen who appeared at work in a drunken state; copies of orders on dismissal for appearing at work drunk or in a state of narcotic and other intoxication; protocols, medical reports; witness statements, etc.

According to Article 327 of the CPC, the court decides to reject the application if it finds that there are no grounds for recognizing a citizen as having limited legal capacity.

A court decision by which a citizen is recognized as having limited legal capacity is the basis for the appointment by the guardianship or guardianship authority of a trustee with limited legal capacity.

The guardianship or trusteeship body is obliged to inform the court within ten days about the appointment of a trustee with limited legal capacity.

The observance of legality in the consideration of cases on the recognition of a citizen with limited legal capacity is an important guarantee of judicial protection of civil rights.

Therefore, in cases of this category, it is necessary to comprehensively, fully and objectively clarify the existence of the circumstances that served as the basis for making such claims, and ensure that they are considered in strict accordance with the provisions of Chapter 35 of the CPC.

It seems to be the correct practice of those courts in which rulings are issued on the preparation of a case for trial without clarifying the rights of the parties to resolve a dispute by an amicable settlement agreement, an agreement on the settlement of a dispute (conflict) through mediation or an agreement on the settlement of a dispute through a participatory procedure, or to apply for dispute resolution to arbitration. The parties to the claim proceedings are entitled to these rights. The case of recognizing a citizen as having limited legal capacity is considered in a special proceeding, in which, moreover, there is only the applicant and there is no other party with whom a settlement agreement, an agreement on the settlement of a dispute (conflict) through mediation, or an agreement on the settlement of a dispute through a participatory procedure, or an agreement on applying for dispute resolution in arbitration.

Within the meaning of the norms of Articles 325, 326 of the CPC, the appointment of an official representative - lawyer is required only when preparing a case on the recognition of a citizen as legally incompetent. On this issue, the commentary to the CPC states that persons whose legal capacity is limited can independently manage their procedural rights and obligations, as well as perform procedural actions with the help of representatives. It seems correct not to appoint an official representative - a lawyer in the case of recognizing a citizen as having limited legal capacity.

Article 82, Part 2 of Article 325 of the CPC provides for the appointment of a judicial examination by the court. By virtue of Part 9 of Article 82 of the CPC, the ruling on the appointment of an expert examination is not subject to appeal and protest. Articles 272, 273 of the CPC establish the court's right to suspend proceedings on the case.

According to Art. 275 of the CPC, a court ruling on the suspension of proceedings in cases provided for by this Code may be appealed or appealed to the court of appeal. Therefore, it seems correct for the court to issue a separate ruling on the appointment of a forensic examination, stating that it is not subject to appeal and appeal, and a separate ruling on the suspension of proceedings in the case, stating that it is subject to appeal and appeal.

In accordance with Article 274 of the CPC, if the court appoints an expert examination, the proceedings in the case are suspended until the expert opinion is submitted to the court, therefore, the ruling on the suspension of proceedings in connection with the appointment of an expert examination should specify the period for suspending proceedings in accordance with the law - until the expert opinion is submitted to the court.

The Ruling on the preparation of a case for trial should not contain an explanation of the rights to resolve a dispute by an amicable settlement, an agreement on the settlement of a dispute (conflict) through mediation, or an agreement on the settlement of a dispute through a participatory procedure, or to apply for dispute resolution through arbitration.

An official representative - lawyer in the case of recognition of a citizen with limited legal capacity is not appointed.

The legislation does not provide for the appointment of a judicial examination, suspension and resumption of proceedings by a judge's ruling. To be pronounced by a court (not a judge!) a separate ruling on the appointment of a forensic examination, stating that it is not subject to appeal and appeal, and a separate ruling on the suspension of proceedings, stating that it is subject to appeal and appeal. In the ruling on the suspension of proceedings in connection with the appointment of an expert examination, the time limit for suspending proceedings in accordance with the law should be indicated - until the expert opinion is submitted to the court. When considering cases on the recognition of a citizen as having limited legal capacity, it is necessary to comprehensively, fully and objectively clarify the existence of circumstances that served as the basis for submitting an application for recognition of a citizen as having limited legal capacity. In accordance with paragraph 1 of art. 27 of the Civil Code, two causally related conditions are necessary to limit a citizen's legal capacity: 1) abuse of alcoholic beverages, narcotic drugs or psychotropic substances or their analogues, 2) putting your family in a difficult financial situation. At the same time, the availability of earnings and other incomes from other family members cannot in itself be a reason for refusing to satisfy the stated requirements. The fact of a citizen's abuse of alcoholic beverages, narcotic drugs or psychotropic substances or their analogues must be confirmed in court by appropriate evidence, which includes: certificates of placement in a medical sobering-up center or medical care in connection with a condition related to the abuse of alcoholic beverages, narcotic drugs or psychotropic substances or their analogues, certificates of examination for the subject of establishing dependence on alcohol, narcotic drugs or psychotropic substances or their analogues, acts of forensic narcological or forensic psychiatric examination, documents of law enforcement agencies on violations of public order, the creation of conflict situations in the family, and other evidence confirming a person's dependence on alcohol, narcotic drugs or psychotropic substances or their analogues.

To be recognized as having limited legal capacity, it is not required that a citizen be a chronic alcoholic or drug addict.

When determining whether a family is in a difficult financial situation, the court should pay attention to the degree of participation of the person in respect of whom the issue of disability is being raised, in the maintenance of family members in need of assistance, in bearing the costs of providing appropriate living conditions, in paying for utilities, as well as the costs of household management, maintenance of the house (apartment) in proper sanitary condition, etc.

In addition, the court takes into account the costs of the family for the maintenance of alcohol abusers, narcotic drugs or psychotropic substances or their analogues.

If the court finds that a citizen does not participate in the costs of maintaining a family not because of the abuse of alcoholic beverages, narcotic drugs or psychotropic substances or their analogues, but due to the lack of permanent earnings or income for objective reasons (due to illness, inability to find employment, etc.), then he cannot be limited in legal capacity.

If it does not follow from the application that the person against whom the application is filed is abusing alcoholic beverages or narcotic drugs, psychotropic substances or their analogues, or it does not follow that this person is putting his family in a difficult financial situation, then he refuses to accept such an application (subparagraph 1) of Part 1 of Article 153 of the CPC) or The proceedings in the case adopted on such an application are terminated (subparagraph 1) of Article 247 of the CPC).

By virtue of Article 326 of the CPC, the case of recognizing a citizen as having limited legal capacity is considered with the participation of the citizen himself, if possible due to his state of health, the prosecutor and a representative of the guardianship authority.

In this case, the representative of the guardianship authority gives an opinion on the application under consideration.

It is necessary to comply with the requirements for the design and presentation of judicial acts, established by paragraph 9 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 11.07.2003 No. 5 "On judicial decision", Articles 226, 269 of the CPC, as well as Methodological Recommendations.

Regulatory legal framework.

Consideration of cases of the generalized category is regulated:

The Constitution of the Republic of Kazakhstan,

GK,

GPC,

The Code of the Republic of Kazakhstan "On the Health of the people and the Healthcare system",

The Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family",

By the Law of the Republic of Kazakhstan dated February 10, 2017 No. 44-VI "On Forensic expertise",

Resolution of the Government of the Republic of Kazakhstan dated March 30, 2012 No. 382 "On Approval of the Rules for the Exercise of State functions of guardianship and trusteeship",

By the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 13, 2001 No. 21 "On the preparation of civil cases for trial",

By the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 28, 2002 No. 13 "On judicial practice in cases of establishing facts of legal significance",

10. By the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 5 "On the judicial decision",

11. Methodological recommendations on the execution of judicial acts of the courts of the Republic of Kazakhstan, approved by the order of the Chairman of the Supreme Court of the Republic of Kazakhstan dated April 1, 2010 (Methodological recommendations).

 

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