Comments on Article 104. The price of a claim of the Civil Procedure Code of the Republic of Kazakhstan

1. The price of the claim is determined by:1) in claims for the recovery of money - the amount brought for recovery; 2) in claims for the recovery of compensation for moral damage in monetary terms caused by the dissemination of information discrediting honor, dignity and business reputation - the amount brought for recovery; 3) in claims for the recovery of the amount of losses caused by the dissemination of information discrediting business reputation, - the amount submitted for recovery; 4) in claims for the division of property that is joint or shared property, for the determination or allocation of a share in property that is common property, - the value of the claimed property, determined at market prices prevailing at the location of the property at the time of filing the claim; 5) in claims for recovery of alimony - the totality of payments for one year; 6) in claims for periodic urgent payments and disbursements - the totality of all payments and disbursements, but not more than three years; 7) in claims for indefinite or lifetime payments and disbursements - a set of payments and disbursements, but not more than three years; 8) in claims for reduction or increase of payments or disbursements - the total amount to be reduced or increased by the applicant, but not more than one year; 9) in claims for termination of payments and disbursements - the totality of the remaining payments or disbursements, but not more than one year; 10) in claims for early termination of the property lease (lease) agreement, with the exception of the lease housing, - a set of payments for the use of property for the remaining term of the agreement (contract), but not more than three years; 11) in claims for ownership of immovable property - the market value of such objects at their locations on the day of filing the claim; 12) in claims for the recovery of immovable or movable property from someone else's illegal possession - the market value of the sought-after property, but not lower than the valuation under the insurance contract concluded by the citizen, and not lower than the book value of the property owned by the legal entity on the day of filing the claim in court; 13) in claims for invalidation of contracts of sale, pledge, donation of movable and immovable property, other contracts related to the subsequent by the return of all received property under transactions in accordance with the procedure established by part three of Article 157 of the Civil Code of the Republic of Kazakhstan - the market value of the property on the day of filing a claim in court. When challenging a pledge agreement, the price of the claim must not exceed the value of the property specified in the agreement; 14) in claims consisting of several independent claims, the total amount of all claims.2. The price of the claim is indicated by the plaintiff. In case of an obvious discrepancy between the indicated price and the actual value of the sought-after property, the price of the claim is determined by the judge.

1. Paragraph 10 of the normative resolution of the Supreme Court No. 9 dated December 25, 2006 "On the application by the courts of the Republic of Kazakhstan of legislation on court costs in civil cases" clarifies the determination of the price of a claim in civil cases.In particular, when determining prices for certain categories of claims, one should proceed from the following:- for alimony claims, the price is determined by the total payments for the year, which is determined by the court based on information about the defendant's income (for example, a certificate of average earnings, information from the tax committee, etc.). In the absence of documents confirming the defendant's income, in accordance with article 63 of the Law "On Enforcement Proceedings and the Status of Bailiffs", the amount of cumulative payments for the year should be determined based on the average monthly salary in the Republic of Kazakhstan at the time of the case. In practice, in the absence of data on the debtor's monthly or total annual income, some courts collect state duty to the state's income based on the size of the monthly calculation index, others - data from a local statistical agency on the average salary for agricultural enterprises in the district, and others - from the nominal salary for the region on the day of the decision and in proportion to the share of earnings collected The fourth is by multiplying 1 MCI by 12 months;- In cases of claims for amendment or termination of the lease agreement, the state fee is charged in the amount established by the Tax Code. However, in cases of claims for early termination of a property lease agreement for any other property, the state fee is charged on the total amount of payments for the use of the property for the remaining term of the agreement (contract), but not more than three years (see commentary to Article 103 of the CPC);- a claim for recognition of ownership of immovable property arising on the basis of an equity participation agreement may be filed in cases where an apartment building has been completed, permission has been obtained to put the house into operation, but the developer avoids transferring the permit to the registration authority and issuing an act of acceptance and transfer of the apartment. That is, the developer, evading the fulfillment of these obligations, does not provide the shareholder with title documents that serve as the basis for registration of ownership rights.

And a court decision is the basis for registration of ownership rights.In accordance with subparagraph 11) of the first part of Article 104 of the CPC, in claims for ownership of immovable property, the price of the claim is determined by the market value of such objects at their locations on the day the claim is filed.The literal interpretation of this procedural rule does not allow the application of this rule only to claims for which the plaintiff has registered ownership of immovable property., since claims for ownership of real estate are a property claim.The Law "On Equity Participation in Housing Construction" regulates public relations related to the organization of the construction of residential buildings by attracting money from individuals and legal entities for equity participation in their construction, and also establishes guarantees for the protection of the rights and legitimate interests of the parties to the agreement on equity participation in housing construction. In accordance with the Law "On Consumer Rights Protection" (Article 7), consumers, among other things, have the right to freely conclude contracts for the purchase of goods (performance of works and provision of services), to protect their rights and legitimate interests.Accordingly, the legislation on consumer protection applies to the relations arising from the contract of equity participation in construction. Therefore, if an equity holder (citizen) files a claim in order to protect his rights and legitimate interests on the basis of the Law "On Consumer Rights Protection", in accordance with part three of Article 109 of the CPC, a court order defers payment of the state fee until the relevant decision is made.

Subsequently, the costs associated with the payment of the state fee are awarded to the party against whom the decision was made. However, it should be borne in mind that Article 109 of the CPC is applicable only if the plaintiff bases his claims on consumer protection legislation when filing a claim.In property disputes considered in civil proceedings, the amount of the state fee is determined based on the price of the claim according to the rules of Article 104 of the CPC. The price of the claim is indicated by the plaintiff (for more information, see the commentary to Article 105 of the CPC).2. If the price indicated by the plaintiff clearly does not correspond to the actual value of the sought-after property, determined taking into account market prices by the authorized body for registration of immovable (movable) property, or by a person licensed to carry out valuation activities, the price of the claim is determined by the judge.

Additional comment

13) When filing claims for invalidation of contracts, plaintiffs do not always make demands for restitution. Believing that a claim of a non-property nature has been filed, they pay the state duty in the appropriate amount, based on this definition.

Meanwhile, the purpose of making such demands is to restore the property rights of citizens, claim real estate, etc. In this regard, subparagraph 13) of the first part of Article 104 of the CPC stipulates that the price of a claim is determined in claims for invalidation of contracts of sale, pledge, donation and movable and immovable property, and other contracts related to the subsequent return of all received property under transactions in accordance with the procedure established by the third part of Article 157. CC, - the market value of the property on the day of filing a claim in court. When challenging pledge agreements, the price of the claim must not exceed the value of the property specified in the contract. The need to pay the state fee will eliminate the abuse of rights by filing unjustified claims, and discipline the participants in the civil process. Based on the results of the consideration of the case, the court distributes court costs and, if a well-founded claim is filed, the state fee will be collected from the defendant in the absence of violations by the plaintiff established by the second part of Article 109 of the CPC.

In accordance with Resolution No. 7/2 of the Constitutional Council dated March 29, 1999 "On the official interpretation of paragraph 2 of Article 13, paragraph 1 of Article 14, paragraph 2 of Article 76 of the Constitution of the Republic of Kazakhstan", the norm of paragraph 2 of Article 13 of the Constitution "Everyone has the right to judicial protection of their rights and freedoms" means the right of any person and citizen to apply to a court for the protection and restoration of violated rights and freedoms. This right is exercised on the basis and in accordance with the procedure established by law. Paragraph 1 of article 14 of the Constitution, "Everyone is equal before the law and the court," establishes equality of individual rights and duties, equal protection of these rights by the State, and equal responsibility of everyone before the law. Equality before the law means that it is in the laws that specific conditions and circumstances are defined that make it possible to realize the rights and freedoms of man and citizen. By establishing a requirement to pay a state fee for the above-mentioned category of cases, the CPC does not restrict the right of citizens to access justice.

LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

Astana, 2016

UDC 347 (574)  

By 63

ISBN 978-601-236-042-4

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