Civil cases on claims for the protection of honor dignity and business reputation  

Grounds for the protection of honor, dignity and business reputation.

According to article 19 of the Universal Declaration of Human Rights, adopted by resolution No. 217 A (III) of the United Nations General Assembly on December 10, 1948, everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without hindrance and freedom to seek, receive and impart information and ideas by any means. and regardless of state borders.

By virtue of paragraph 1 of article 14 of the International Covenant on Civil and Political Rights dated December 16, 1966, ratified by the Law of the Republic of Kazakhstan dated November 28, 2005 and entered into force on April 24, 2006, all persons are equal before the courts and everyone has the right, when determining his rights and obligations in any civil process, to a fair and public hearing by a competent, independent and impartial court established by law.

According to Part 3 of Article 2 of the CPC, international treaties ratified by the Republic of Kazakhstan have priority over the Code of Civil Procedure and are applied directly, except in cases where it follows from an international treaty that its application requires the issuance of a law. In accordance with the provisions of article 18 of the Constitution, everyone has the right to defend their honor and dignity.

According to article 4 of the Constitution, the generally recognized principles and norms of international law and international treaties of the Republic of Kazakhstan are an integral part of its legal system.

According to article 20 of the Constitution, everyone is guaranteed freedom of speech and creativity, as well as freedom of information in any way not prohibited by law.

The right of everyone to defend their honor and dignity provided for in Article 18 of the Constitution, as well as the right of everyone to judicial protection of their honor, dignity and business reputation from disseminated defamatory information that does not correspond to reality, is a necessary restriction on freedom of speech and the media in cases of abuse of these rights.

According to subparagraph 1 of Article 187 of the Civil Code, the limitation period does not apply to the requirement for the protection of intangible assets and personal non-property rights, except in cases provided for by legislative acts.

Personal non-property relations are the subject of a dispute on the protection of honor, dignity and business reputation. Citizens and legal entities who believe that untrue and defamatory information has been disseminated about them have the right to file lawsuits in cases of this category.

When distributing such information to minors or the legally incapacitated, their legal representatives may bring claims for the protection of their honor and dignity.

In accordance with paragraph 1 of Article 143 of the Civil Code, a citizen has the right to demand in court the refutation of information discrediting his honor, dignity or business reputation, and according to paragraph 2 of the same article, if information discrediting the honor, dignity or business reputation of a citizen or a legal entity is disseminated in the media, they must be refuted free of charge in those the same mass media. At the same time, a citizen or a legal entity in respect of whom information infringing on his rights and legitimate interests has been published by the media has the right to publish his response free of charge in the same media.

The legislation of the Republic of Kazakhstan, namely paragraph 4 of Article 143 of the Civil Code and Article 19 of the Law of the Republic of Kazakhstan "On Mass Media", obligatorily prescribe that the demand of a citizen or a legal entity to publish a rebuttal or response in a mass media outlet is considered by a court if the media body has refused such publication, or within has not made a publication for a month, as well as in the event of its liquidation.

According to paragraph 7 of the Normative Resolution of the Supreme Court No. 6 of December 18, 1992 "On the application in judicial practice of legislation on the protection of honor, dignity and business reputation of individuals and legal entities", if the claim contains a requirement to refute information disseminated in the press, other mass media (radio, television, etc.), the author and the relevant mass media body are involved as the defendant, to whom, in accordance with paragraph 2 of Article 143 of the Civil Code, the court has the right to impose the obligation to refute information discrediting the plaintiff., recognized as untrue.

The proper defendants in lawsuits for the protection of honor, dignity and business reputation are the authors of false defamatory information, as well as the persons who disseminated this information.

If the disputed information has been disseminated in the mass media with an indication of the person who is its source, then this person is also a proper defendant.

The procedure for refuting information discrediting the plaintiff is regulated by the norms of paragraph 12 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On the application in judicial practice of legislation on the protection of honor, dignity and business reputation of individuals and legal entities" No. 6 dated December 18, 1992 and is defined by parts 1 and 2 of paragraph 2 of Article 143 of the Civil Code.

The regulatory decree stipulates that in all other cases, the procedure for refutation is established by the court (paragraph 12). It should be noted that along with this, it is also necessary to comply with the norm of paragraph 17 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On Judicial Decision" No. 5 dated July 11, 2003, according to which the court is obliged to clearly and clearly state the operative part of the decision so that there are no ambiguities and disputes during the execution of the decision.

In addition, it seems that in the category of disputes on the protection of honor and dignity, the norms of Article 232 of the CPC apply, according to which, when making a decision obliging the defendant to perform certain actions not related to the transfer of property or money, the court specifies the actions and the time period for their commission, which the defendant is obliged to perform in order to restore violated rights, freedoms or legitimate interests. a citizen or a legal entity.

The operative part of the decision states that in the event of non-compliance with the court's decision, the plaintiff has the right to perform these actions independently with the recovery of the costs incurred from the defendant, except in cases where the actions can only be performed by the defendant.

In other words, the decision must be enforceable after its entry into force.

Since the special feature of disputes in this category (of a personal non-property nature) is the direct participation of the defendant himself, the second part of Article 232 of the CPC is inapplicable, since the execution of a judicial act presupposes the personal participation of the defendant.

Thus, the current legislation does not contain requirements for a more detailed procedure for refuting information discrediting the plaintiff, due to its inexpediency, since otherwise this circumstance may give rise to new disputes during the execution of the decision.

In each specific case, the court has the right to independently determine the procedure for refuting defamatory information.

In case of publication or other dissemination of defamatory information that does not correspond to reality, without naming the author, the appropriate defendant in the case is the editorial office of the relevant mass media, that is, an organization, an individual, or a group of individuals engaged in the production and release of this mass media.

At the same time, when distributing information that does not correspond to reality and discredits honor, dignity and business reputation on Internet resources by a person who does not actually reside at his place of registration, the courts resolve at the defendant's last known place of residence, which complies with the norms of the current Code of Civil Procedure (part 1 of Article 29 of the CPC, part 1 of Article 133 of the CPC).

Thus, by the decision of the Temirtau City Court of the Karaganda region dated September 22, 2016, in the case of Lidiya Abenovna Amanzholova's claim against Botanov Zhan Kasymkhanovich for recognizing information as discrediting honor, dignity and business reputation, obliging to delete information from the social network, and for compensation for moral damage, the claim was partially satisfied.: the court recognized the information as "A fraudster of the city of Temirtau – notary Amanzholova Lidiya Abenovna", published on May 6, 2014 on the Youtube website on the blog of Botanov Zhan Kasymkhanovich, "According to the law,"untrue, discrediting the honor, dignity and business reputation of Amanzholova L.A.The court ordered Botanov Zh.K. to remove information from the social network - "Fraudster of the city of Temirtau – notary Amanzholova Lidiya Abenovna". Recovered from Botanov Zh.K. in favor of Amanzholova L.A. 30,000 tenge and costs related to the payment of state duty in the amount of 2422 tenge were recovered from Amanzholova L.A. The court refused to satisfy the claim for compensation for moral damage in the rest of the case.

In the case, the court found that on May 6, 2014, a video clip with a search of the office was published on the Youtube website on Botanov Zhan's blog "According to the law" under the title "Fraudster of Temirtau – notary Amanzholova Lidiya Abenovna." At the time of the plaintiff's discovery of this information, the video had 1,672 views. In this regard, the court concluded that the fact of the dissemination of this information on the social network is proven.

The court found that the accuracy and validity of the information provided on this website had not been confirmed, since according to the information provided by the Committee on Legal Statistics and Special Accounts of the General Prosecutor's Office of the Republic of Kazakhstan regarding Amanzholova L.A., as of July 14, 2016, there was no information about the commission of criminal offenses; the plaintiff's arguments that the office in which A search is underway, it does not belong to her, and nothing has been refuted. In the period from April 3, 1999 to May 26, 2015, Amanzholova L.A. It was registered with private notaries.After examining the circumstances of the case, the court concluded that the information indicated by the defendant and reflected in the name "Fraudster of the city of Temirtau – notary Amanzholova Lidiya Abenovna" contain an indication of the plaintiff's involvement in the commission of crimes in the form of fraud, by their nature they are defamatory, detracting from the honor, dignity and business reputation of the plaintiff in public opinion from the point of view of her compliance with the laws, since they accuse her of a criminally punishable act.That is, the defendant disseminated information about the plaintiff that was not true, violating his personal benefits.

It follows from the content of the decision that the court did not establish the actual location of the defendant. The last known place of residence and place of registration of the defendant is: the city of Temirtau, 8th microdistrict house 82 apartment No. 7.In accordance with the norms of part 1 of Article 133 of the CPC, the court took into account that the summons addressed to Botanov Zh.K. with a note about its receipt by a representative of the Temirtau akimat was received by the court, the plaintiff did not object to the consideration of the case in the absence of the defendant, and therefore the court decided to consider the case in the absence of the defendant.

In this case, the plaintiff indicated in the statement of claim the address of the defendant, the user, the blogger of the Internet resource Zh.K. Botanova, and the court resolved the dispute at the place of registration and his last known place of residence.

An Internet resource is a set of integrated software, hardware, and hardware tools, as well as information intended for publication on the Internet and displayed in certain text, graphic, or audio forms. The Internet resource has a domain name (UniformResourceLocator), which is a unique email address that allows you to identify the Internet resource and access the Internet resource. Messenger is the English name of a class of programs designed to exchange messages over the Internet in real time (instant messaging service). Text messages, audio signals, pictures, and videos can be transmitted.

In accordance with the norms of Part 2 of Article 65 of the CPC, audio and video recordings, including those obtained by surveillance and/or recording devices, photo and/or film footage, and other materials on electronic, digital and other tangible media, may be recognized as acceptable evidence.

It should be borne in mind that the records and materials specified in the CPC may be recognized by the court as admissible evidence if the law does not explicitly prohibit their use. Moreover, this list of types of acceptable evidence is open and not exhaustive.

By virtue of subparagraph 4) of Article 1 of the Law of the Republic of Kazakhstan "On Mass Media", a mass media is a periodical, television, radio channel, documentary film, audiovisual recording and other form of periodic or continuous public dissemination of mass information, including Internet resources.

Thus, the information posted on the Internet resource is information posted in the mass media. Consequently, all the restrictions and rules provided for the placement of information in the media apply to the placement of information on the Internet resource.

According to part 1 of Article 50 of the CPC, replacement of the defendant is allowed before the start of consideration of the case on the merits in the court of first instance. The court, having established that the claim was brought against the wrong person who should be responsible for the claim, may, at the request of the plaintiff, without terminating the case, allow the replacement of the improper defendant with the proper one.

According to the provisions of Article 143 of the Civil Code, Article 19 of the Law of the Republic of Kazakhstan "On Mass Media", if information discrediting the honor, dignity or business reputation of a citizen or a legal entity is disseminated in the media, it must be refuted free of charge in the same media.

In this connection, based on the meaning of these legal norms, the editorial board of the journal and the correspondent who is the author of the article should be involved by the defendant.

When resolving a dispute, it should be borne in mind that citizens and legal entities, when filing claims for the protection of honor, dignity and business reputation, are required to specify specific requirements in their statements of claim, including a claim for recognition of information discrediting the plaintiff as untrue.

In accordance with paragraph 3 of Article 141 of the Civil Code, a person who has filed a claim for the protection of personal non-property rights must prove that such rights have been violated. By virtue of paragraph 1 of Article 143 of the Civil Code, a citizen has the right to demand in court a refutation of information discrediting his honor, dignity or business reputation.

The obligation for the plaintiff to prove the fact of a violation, and for the defendant to prove that the information disseminated is true, is also provided for in paragraph 8 of the Supreme Court's Regulatory Decree No. 6 of December 18, 1992 "On the application in judicial practice of legislation on the protection of honor, dignity and business reputation of individuals and legal entities."

Thus, according to paragraph 3 of Article 141 and paragraph 1 of Article 143 of the Civil Code, the obligation to prove that the disseminated information is true lies with the defendant. The plaintiff is obliged to prove only the fact of dissemination of information discrediting him by the person against whom the claim is filed, while he also has the right to provide evidence of inconsistency with the reality of information discrediting his honor and dignity. If the evidence is insufficient, the court has the right to invite the parties to provide additional evidence or to demand it on its own initiative (paragraph 8 of the Normative Resolution of the Supreme Court).

Moreover, in accordance with paragraph 17 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 7 dated November 27, 2015 "On the application by courts of legislation on compensation for moral damage", the defendant is not responsible for value judgments in these categories of cases.

By the decision of the Pavlodar City Court of the Pavlodar region of November 2, 2016, the claim of Hegai Vladimir Alexandrovich to Sukhankulova Umytgulseilkhanovna for the protection of honor, dignity, business reputation and compensation for moral damage was denied. The decision was left unchanged by the decision of the appellate instance.

According to the decision, the defendant disseminated information in the media, namely on the Internet resource Instagram, on her account vse_obo_vsem_kz, discrediting the honor, dignity, and business reputation of the plaintiff and caused moral harm.

The court of first instance justified the denial of the claim by saying that by posting the post, the defendant did not violate the laws of the Republic of Kazakhstan, as well as the rules of the Instagram community, according to which users of this network have the right to express themselves in all non-prohibited ways. There is no action on the part of the defendant to disseminate any information that detracts from the honor, dignity and business reputation of the plaintiff.

The court found that the defendant, an Instagram social network user registered under the name "vse_obo_vsem_kz", at the request of another user of this network, posted a post–photo of the eyes with the inscription "KHEGAY.KZ " with the following text: "Hello Uma! Please publish it! I'm going to surgery on Saturday and I'm very worried.", "Hello, dear girls! I know there are a lot of questions about blepharoplasty. Tell me who did the blepharo at Hegai V.A. I signed up for surgery, I'm very worried. But it's been a dream for many years!"

The plaintiff claimed that the comments of other users of the social network were the dissemination by the defendant of information discrediting his honor, dignity, and business reputation, since they did not correspond to reality.

The court concluded that the plaintiff had not proved that the defendant had disseminated defamatory information. The post posted by the defendant does not contain information that could cast doubt on the plaintiff's business qualities. The content of comments received from other users of the network is beyond the control of the respondent (the user of the Internet resource) and she is not responsible for the opinion expressed by them (other users), the accuracy of the information contained in the comments. The comments belong to other users and are subjective presumptive opinions. It should be borne in mind that opinions and assumptions are not subject to jurisdiction, since freedom of views, opinions and beliefs is a natural and inalienable human right guaranteed by article 20 of the Constitution of the Republic of Kazakhstan. No one can be forced to refuse to express their opinion. An opinion does not constitute a civil violation.

The arguments of the plaintiff's complaint that the defendant is the owner of an Internet resource related to the media were declared untenable by the court, since the defendant is a user of the Instagram social network. The Instagram community rules provide for the user's right to unsubscribe from or block the person who posted the post. In addition, according to the rules of the community, the plaintiff had the right to contact the defendant with a request to delete a comment or topic that, in his opinion, harm him. The procedure established by the rules for settling disputes or disagreements at the social network level was not used by the seller.

When preparing a case, taking into account the norms of civil law and the specifics of considering such categories of cases, it should be borne in mind that in order to more accurately determine the nature of the dispute, it is necessary to clarify whether the defendant objects to the claim, as well as to clarify other issues relevant to the proper resolution of the case, the parties should be called to a conversation, interview them on the merits of the dispute, explain to the plaintiff the right to make the necessary additional claims, find out from the plaintiff the presence of additional evidence, and from the defendant – the presence of objections to the claim and evidence refuting the grounds of the claim and the arguments of the plaintiff; to explain to the parties the right to file a petition for assistance in obtaining evidence; to resolve the issue of co-defendants and third parties entering the case without independent claims, as well as to resolve the issue of replacing an improper defendant.

It should be borne in mind that in the absence of a claim for recognition of certain information as untrue and discrediting the honor or dignity of the plaintiff, the court has no right to consider the case also in violation of part 2 of Article 225 of the CPC, which regulates the prohibition on going beyond the claims, except in the cases specified in this provision.

In this regard, at the stage of preparation for the trial, it is necessary to find out from the plaintiff which specific information discrediting honor and dignity should be recognized as invalid and in what way they should be refuted.

There are cases when, in the absence of such a requirement as the recognition of information discrediting honor and dignity as untrue, the presentation of which was mandatory, the court resolves the merits of the case and the claim for compensation for moral damage.

A study of the practice of courts in considering civil cases on claims for the protection of honor, dignity and (or) business reputation of a citizen or a legal entity shows that the decisions of district (city) courts to satisfy the claim, issued in cases in which no claim was filed for recognition of widespread information discrediting honor, dignity and business reputation are not Although the reasoning part of the decision contained conclusions about this, the operative part did not contain a decision on the same claim with specific information., They did not correspond to reality, and were mostly not corrected, canceled, or changed.

The practice of higher courts seems to be more correct when decisions of the court of first instance are recognized as unlawful, where there was no requirement to recognize information discrediting honor, dignity and (or) business reputation as untrue, but at the same time they decided to oblige the defendants to refute the information and recover monetary amounts from them in favor of the plaintiffs. compensation for moral damage.

However, by virtue of part 2 of Article 15 of the CPC, in the course of civil proceedings, the parties choose their position, ways and means of defending it independently and independently of the court and other persons involved in the case.

In connection with the above, it should be noted that when filing a claim for recognition of information as untrue, but in the absence of a requirement for the obligation to refute certain information discrediting the honor, dignity and business reputation of the plaintiff, the court has the right to accept such a statement of claim and resolve the dispute on its merits. If the court finds that the information that the plaintiff requests to be recognized as untrue is disseminated by the defendant and discredits the honor, dignity and business reputation of the plaintiff, then such a claim is subject to satisfaction even in the absence of a requirement to refute the information, since each subject of legal relations independently manages his rights at his discretion, no one can impose on the plaintiff to choose that or a different position and method of defending. In this case, the plaintiff considers it sufficient to fully restore his rights and chose this method of protection, which is the right of the party. Moreover, the court resolves the case within the limits of the plaintiff's claims.

At the same time, in the absence of a claim for recognition of the information as untrue, the plaintiff filed only a claim for the obligation to refute the information (including compensation for moral damage), it is precisely such a claim that cannot be satisfied without a requirement for recognition of the information as untrue, since in order to satisfy the claim it is necessary to establish:

1) the fact of dissemination of information and

2) that the information discredits the honor, dignity and business reputation of the person who applied to the court for protection of his legal rights.

The requirement of the obligation to refute the information, as well as compensation for moral damage, are additional, arising from the basic requirement to recognize the information as untrue.

That is, for the restoration of rights, a prerequisite is the presentation of a requirement to recognize the information as untrue.

By the decision of the District court No. 2 of the Almaly district of Almaty dated October 4, 2016, Alimseitovabakhtiyaranugmanovich's claim against Makarov Mikhail Mikhailovich, Astana Television LLP, for recognition of actions in distributing information that does not correspond to reality as illegal and compensation for moral damage was denied. By the decision of the Appellate Judicial Board for Civil cases of the Almaty City Court, the decision of the court of first instance remained unchanged.

One of the grounds for refusing to satisfy the claim and leaving the decision unchanged was also the absence of a claim to recognize certain specific information (words and expressions) as untrue, discrediting the honor and dignity of the plaintiff; the court has no right to consider the case in violation of the requirements of part 2 of Article 225 of the CPC, which regulates the prohibition on going beyond the limits of the claim requirements, except for the cases specified in this standard.

The court found that in the statement of claim dated July 25, 2016 Alimseitov B.N. asked the court:

1) to recognize the actions of Astana Television LLP and Makarov M.M. in spreading information that does not correspond to reality as illegal;

2) to collect jointly and severally with Astana City Television LLP and Makarova M.M. on account of repayment of moral damage of 2000000 tenge.

Thus, the plaintiff filed a statement of claim for recognizing the actions of Astana Television LLP and Makarov M.M. in distributing information that does not correspond to reality as illegal; collecting 2000000 tenge jointly from them to pay off moral damage, rather than recognizing the disseminated information as untrue, discrediting honor, dignity and business reputation.

my reputation. The court took into account that in the plaintiff's claims there is no indication of specific information (words and expressions) that, in his opinion, do not correspond to reality, spread in relation to the plaintiff, discrediting his honor, dignity and business reputation, the presentation and indication of which was mandatory.

An analysis of the judicial acts issued in this category of dispute confirms that the correct practice is for courts to dismiss a claim for the protection of honor, dignity and business reputation in cases where, according to the plaintiff, statements addressed to law enforcement and government officials contain information about the commission of crimes and other offenses by the plaintiff. However , the body of criminal prosecution or inquiry has made a procedural decision to refuse to initiate criminal proceedings or terminate proceedings on rehabilitative grounds ., since the adoption of such a procedural decision in itself is not proof of the dissemination of information that does not correspond to reality.

It should be noted that in accordance with paragraph 1 and paragraph 8 of the Regulatory Decree of the Supreme Court No. 6 of December 18, 1992 "On the application in judicial practice of legislation on the protection of honor, dignity and business reputation of individuals and legal entities", the plaintiff must provide evidence of the fact that defendants spread defamation of his honor, dignity and business reputation by sending an application to the body of the preliminary investigation or inquiry, and the court must establish that the information indicated in such an application is not a statement about certain facts., which, in the plaintiff's opinion, are defamatory, but reflect only the assumption of the person who filed the application.

In addition, according to paragraph 16 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 7 dated November 27, 2015 "On the application by courts of legislation on compensation for moral damage", in cases of private prosecution, the acquittal, as well as the termination of a criminal case on the grounds provided for in subparagraph 5) of part 1 of Article 35 of the CPC, is not in itself It may serve as a basis for imposing on a private prosecutor the obligation to compensate the acquitted person for moral damage., because in this case, there is an exercise of the constitutional right to appeal to the authorities whose competence includes the consideration of these complaints. The claim of an acquitted person in a private prosecution case to recover compensation for moral damage can be satisfied only if the private complaint had no legal basis and the appeal to the court was aimed solely at harming another person (abuse of law).

In this case, the plaintiff must prove the fact of abuse of law by the prosecutor.

Thus, only if the plaintiff proves that the defendant has abused his civil right, only in these cases can the claim be recognized as justified.

According to part 1 of Article 34 of the Constitution, everyone is obliged to comply with the Constitution and legislation of the Republic of Kazakhstan, to respect the rights, freedoms, honor and dignity of others.

At the same time, an analysis of judicial acts in the category of disputes on the protection of honor, dignity and business reputation has shown that in judicial practice there are disputes when official appeals of citizens to authorized central state bodies contain negative information about the activities of an official, which, according to the expert's conclusion, in case of inconsistency with reality, are discrediting honor, dignity and business reputation.

It seems that the defendant's actions in contacting various state bodies, including bodies whose competence does not include the consideration of such a statement, on a systematic basis and the content of defamatory, untrue information in the statements can also be regarded as an abuse of the civil right of a person applying to various state authorities. That is, a combination of two conditions is necessary: a systematic appeal to government agencies and the availability of defamatory information that does not correspond to reality. It is also possible to take into account that earlier, on the same similar appeal of the applicant (respondent) against the same person (plaintiff), the state body conducted an audit or provided a written response, but the citizen continues to file applications and complaints on the same grounds.

According to paragraph 2 of article 13 of the Constitution, everyone has the right to judicial protection of their rights and freedoms.

In accordance with Part 1 of Article 8 of the CPC, everyone has the right, in accordance with the procedure established by the Code of Civil Procedure, to apply to the court for protection of violated or disputed rights, freedoms or legitimate interests.

The appeal of a citizen (legal entity) to judicial authorities for judicial protection of violated or disputed rights and freedoms is provided for by the Constitution and legislation, therefore explanations, objections of participants in the process, and written arguments in complaints cannot be regarded as dissemination of defamatory information.

Moreover, it is necessary to take into account that, according to part 1 of Article 20 of the CPC, the trial must take place in conditions that ensure the normal operation of the court and the safety of persons present in the courtroom.

By virtue of Parts 1 and 2 of Article 119 of the CPC, liability measures for contempt of court are applied by the court in order to implement the constitutional principle of equality of all before the court and the tasks of justice. For showing contempt of court, the perpetrators are brought to administrative responsibility in accordance with the procedure provided for by the Code of the Republic of Kazakhstan on Administrative Offenses.

Thus, during court proceedings, the participants in the process must show respect for the court and not allow the normal operation of the court to be disrupted.

Simultaneously with the claim for the protection of honor and dignity, the court has the right to resolve the claim for compensation for moral damage caused as a result of the dissemination by the defendant of untrue information discrediting the honor, dignity and business reputation of the plaintiff or causing other non-material damage (paragraph 13 of the Normative Resolution of the Supreme Court No. 6 of December 18, 1992 "On the application in judicial practice legislation on the protection of honor, dignity and business reputation of individuals and legal entities").

According to subparagraph 3) of paragraph 3 of Article 951 of the Civil Code, moral damage is compensated regardless of the fault of the causer in the event that the damage is caused by the dissemination of information discrediting honor, dignity and business reputation.

When making such decisions, the courts did not take into account that, by virtue of subparagraph 3) of paragraph 3 of Article 951 of the Civil Code and paragraph 13 of the Regulatory Decree of the Supreme Court No. 6 of December 18, 1992 "On the application in judicial practice of legislation on the protection of honor, dignity and business reputation of individuals and legal entities," moral damage is compensated in the event that if the harm is caused by the dissemination of information discrediting honor, dignity and business reputation; therefore, the claim for compensation for moral damage is subject to satisfaction only if the claim for recognition of certain information disseminated by the defendant through the newspaper, discrediting the honor and dignity of the plaintiff, is inconsistent with reality.

That is, the issue of satisfaction of a claim in terms of compensation for moral damage depends on whether the claim for the protection of honor and dignity (the main requirement) is satisfied. A claim for compensation for moral damage is a derivative of a claim for the protection of honor, dignity and business reputation.

It should be borne in mind that the reasoning part of the decision should contain the circumstances of the case established in accordance with part 2 of Article 63 of the CPC by evidence obtained legally by information about the facts –explanations of the parties and third parties, witness statements, expert opinions, physical evidence, protocols of procedural actions, minutes of court sessions, audio, video recordings, data obtained through the use of videoconferencing systems reflecting the course and results of procedural actions, and other sources.

Application of legislation.

According to Article 143, paragraph 5 of the Civil Code, if the court's decision is not fulfilled, the court has the right to impose a fine on the violator, which is levied to the budget revenue. A fine is imposed in accordance with the procedure and amounts established by the civil procedure legislation. Payment of a fine does not release the violator from the obligation to perform the action stipulated by the court decision.

This provision is contained in the general part of the Civil Code, which entered into force on March 1, 1995. Previously, the Civil Procedure Code of the Kazakh SSR, which was in force before the Civil Procedure Code of July 13, 1999, contained rules governing the procedure and amount of fines. However, such norms are currently excluded, and the Code of Civil Procedure does not contain them, so paragraph 5 of Article 143 of the Civil Code is outdated and inapplicable.

In accordance with paragraph 8 of the Normative Resolution of the Supreme Court No. 6 of December 18, 1992 "On the application in judicial practice of legislation on the protection of honor, dignity and business reputation of individuals and legal entities", according to paragraph 3 of Article 141 and paragraph 1 of Article 143 of the Civil Code, the obligation to prove that the disseminated information is true is assigned to the defendant. The plaintiff is obliged to prove only the fact of dissemination of information discrediting him by the person against whom the claim is filed, while he also has the right to provide evidence of inconsistency with the reality of information discrediting his honor and dignity. If the evidence is insufficient, the court has the right to invite the parties to provide additional evidence or to demand it on its own initiative.

In this provision, it should be noted that the requirement of paragraph 8 of the Regulatory Resolution regarding the demand for evidence on the initiative of the court is not consistent with the norms of part 3 of Article 15 of the CPC, according to which the court is completely exempt from collecting evidence on its own initiative in order to establish the factual circumstances of the case, however, at the reasoned request of the party, it assists in obtaining the necessary materials in in accordance with the procedure stipulated by the Code of Civil Procedure.

According to paragraph 13 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the application in judicial practice of legislation on the protection of honor, dignity and business reputation of individuals and legal entities" No. 6 dated December 18, 1992, the plaintiff, simultaneously with the claim for the protection of honor and dignity, has the right to file a claim for compensation for material damage caused by the dissemination of defamatory information. Along with the claim for the protection of honor and dignity, the court has the right to consider the claim of a citizen or a legal entity for compensation for moral (non-material) damage caused to him as a result of the dissemination by the defendant of untrue information discrediting his honor and dignity, or causing other non-material damage.

By virtue of paragraph 17 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the application by courts of legislation on compensation for moral damage" No. 7 dated November 27, 2015, the requirements for the protection of a citizen's business reputation also apply to the protection of the business reputation of a legal entity, with the exception of the requirement for compensation for moral damage. Civil legislation does not provide for compensation for moral damage to a legal entity, and courts should refuse to accept claims from legal entities for compensation for moral damage. If the claim is accepted, the proceedings are subject to termination.

y is subject to termination. In this case, in disputes over claims for compensation for moral damage to a legal entity caused as a result of the dissemination by the defendant of information that does not correspond to reality, there is a conflict of law in Regulatory Rulings.

In accordance with the provisions of paragraph 3 of Article 12 of the Law of the Republic of Kazakhstan "On Legal Acts", if there are contradictions in the norms of normative legal acts of the same level, the norms of the act, later put into effect, apply.

In this regard, it should be noted that paragraph 17 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the application by courts of legislation on compensation for moral damage" No. 7 dated November 27, 2015 is subject to application in claims for compensation for moral damage to a legal entity.

Court costs.

In accordance with subparagraph 2 of paragraph 1 of Article 104 of the CPC, the price of a claim is determined in claims for compensation for moral damage in monetary terms caused by the dissemination of information discrediting honor, dignity and business reputation – the amount presented for recovery.

According to subparagraph 15 of paragraph 1 of the article ,"According to the Tax Code, the state duty is levied on individual claims filed with the court to recover compensation for moral damage in monetary terms caused by the dissemination of information discrediting honor, dignity and business reputation – 1 percent of the amount of the claim.

The norms of paragraph 1 of Article 113 of the CPC provide that the party in whose favor the decision was made, the court awards on the other hand the costs incurred by it to pay for the assistance of a representative.For property claims, the total amount of these expenses should not exceed ten percent of the satisfied portion of the claim.

According to non-property requirements, the amount of expenses is collected within reasonable limits, but should not exceed three hundred monthly calculation indices.

             In this case, the legislator assigned the category of disputes on the recovery of compensation for moral damage in monetary terms caused by the dissemination of information discrediting honor, dignity and business reputation to Article 104 of the CPC (price of a claim), that is, a claim with a price (property), therefore, both when filing a claim and when resolving the issue. It is necessary to be guided by this rule on reimbursement of court costs.

For the stated reasons, in case of satisfaction of a claim (or partially) for the protection of honor, dignity and business reputation and compensation for moral damage, the costs of paying for the assistance of a representative are subject to compensation in the amount of no more than 10% of the satisfied part of the claim (by analogy as for property claims).          

The appellate instance

The appellate instance clarifies the circumstances of the dispute and amends or cancels the decisions of the courts of first instance in the event that the conclusions of the court of first instance set out in the decision do not correspond to the circumstances of the case, violations or improper application of substantive or procedural law, etc.

When considering a case on appeal, the court verifies the legality and validity of the decision of the court of first instance in full, which corresponds to part 1 of Article 413 of the CPC.

Thus, when resolving complaints by the parties against decisions of the courts of first instance, the appellate instance fully takes into account the requirements of paragraph 8 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 6 dated December 18, 1992 "On the application in judicial practice of legislation on the protection of honor, dignity and business reputation of individuals and legal entities", according to which the plaintiff is obliged to prove only himself the fact of dissemination of defamatory information by the person against whom the claim is filed; and in accordance with paragraph 2 of the Regulatory Resolution, if information discrediting honor and dignity is found to be untrue, the obligation to refute it lies with the defendant, regardless of whether he is guilty of spreading this information.

In accordance with the norms of Part 2 of Article 434 of the CPC, decisions and rulings of the appellate instance in cases of disputes on the protection of honor, dignity and business reputation may be reviewed by the cassation instance of the Supreme Court of the Republic of Kazakhstan.

  

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