Comments on article 114. Recovery of damages for loss of time of the Civil Procedure Code of the Republic of Kazakhstan

1. At the request of a person participating in the case, from a party who has unfairly filed a knowingly unfounded claim or dispute against a well-founded claim (the person knew or should have known) or systematically opposed the correct and prompt consideration and resolution of the case, the court may recover damages for the actual loss of time in favor of another person participating in the case..2. The amount of damages is determined by the court taking into account the specific circumstances, including based on the applicable remuneration standards for the relevant work in the area.3. A reasoned claim for damages from the party is filed before the end of the consideration of the case on the merits and is considered by the court simultaneously with the main claim. A document confirming the payment of the state duty in accordance with the procedure established by the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (Tax Code) must be attached to the application for recovery of losses.This article regulates the legal consequences of a party's violation of the established obligation to exercise in good faith all procedural rights belonging to them, without abusing the rights of others, without violating their interests, and without intentionally delaying the consideration and resolution of the case (part one of Article 46 of the CPC). The legal consequences provided for in this article are a sanction for the abuse of procedural rights51.__________________51 Scientific and practical commentary on the Civil Procedure Code of the RSFSR, Moscow: Yuridicheskaya literatura, 1976, p. 146.

1. Payments in this article are referred to as losses or compensation. Both of these concepts imply compensation to a person for incurred or future expenses and lost income (paragraph 4 of Article 9 of the Civil Code, paragraphs 1, 2 of Article 157 of the Labor Code).The peculiarity of collecting damages under Article 114 of the CPC is that they must compensate not only for the actual costs incurred as other types of court costs, but also for the actual loss of time.With regard to article 112 of the earlier CPC, the following explanation of the law was given: The damages provided for in Article 112 of the CPC for the actual loss of time may be recovered by the court with reference to the available materials in the civil case.:1) from the plaintiff - in case of unfair presentation of a knowingly unfounded claim or systematic opposition to the correct and prompt consideration and resolution of a civil case; 2) from the defendant - in the case of an unfair statement of a deliberately unfounded objection to a claim or systematic opposition to the correct and prompt consideration and resolution of a civil case.At the same time, the actions cited by the plaintiff or the defendant must be committed repeatedly, and be intentional in nature, as they do not allow the court to resolve the case in one court session (for example, a deliberately unfounded application for petitions, failure to submit written evidence to the court or to an expert to study the necessary materials, etc.) (paragraph 13 of the normative resolution of the Supreme Court No. 9 dated December 25, 2006 "On the application by courts of the Republic of Kazakhstan of legislation on court costs in civil cases").The first part of this article establishes three independent grounds for collecting damages for the actual loss of time: an unfair statement of a knowingly unfounded claim; an unfair statement of a knowingly unfounded dispute against a well-founded claim.; systematic opposition to the correct and prompt consideration and resolution of the case.1.1. Damages for the actual loss of time may be recovered from the plaintiff in the presence of a combination of two conditions: a statement of a deliberately unfounded claim and an unfair statement of claim.The concept of making a deliberately unfounded claim is not disclosed in the law. When interpreting this concept, the following provisions should be taken into account.Filing a claim is an exercise of everyone's right to judicial protection of their rights and freedoms provided for in paragraph 2 of article 13 of the Constitution. Not every claim can be satisfied, which indicates that the claims are unfounded. The first part of this article establishes a sanction only for statements of a knowingly unfounded claim, that is, a claim about the unreasonableness of which the plaintiff knew (knew) or should have known.When interpreting the concept of "unjustified claim", one should proceed from the concepts of "right to satisfaction of a claim" and "basis of a claim".The legal literature indicates that since only the one who actually owns the violated or disputed substantive right can have the right to satisfy the claim, then, naturally, the plaintiff has the right to satisfy the claim only if, that he will be able to prove both the ownership of the disputed right and the violation or unjustified contesting of this right by the defendant. In this regard, the prerequisites for the emergence and existence of the right to satisfy the claim will be the legal validity of the claim, indicating the existence of the substantive law on which the claim is based, and the factual validity of the claim, i.e. the evidence of the facts that serve as the basis of the plaintiff's legal claim against the defendant.The legal and factual validity of a claim should be considered as general prerequisites for the right to claim satisfaction. In addition, for some lawsuits, the prerequisites for the right to satisfy a claim will be compliance with the statute of limitations and the due date of the obligation - special prerequisites that are important not for all lawsuits, but only for lawsuits filed in certain categories of civil cases. The plaintiff may not have the right to satisfy the claim if at least one of these prerequisites is missing.52.____________________52 The course of Soviet civil procedural law. Vol. 1. pp. 428-429.

According to subparagraph 5) of the second part of Article 148 of the CPC, the application must specify the circumstances on which the plaintiff bases his claims, as well as the content of evidence confirming these circumstances.Consequently, the actual justification of the claim is assigned by law to the plaintiff.In accordance with Article 48 of the CPC, paragraph 16 of the normative resolution of the Supreme Court No. 5 of July 11, 2003 "On judicial Decision", each claim has its own basis, which should be understood as the facts indicated by the interested person, entailing the occurrence of, modification or termination of the substantive legal relationship that is the subject of the claim.The legal justification of the claim, that is, the search for a suitable rule of substantive law governing disputed legal relations and applicable to dispute resolution, is entrusted to the court (subparagraph 2) of part two of Article 163, part five of Article 226 of the CPC).It follows from these provisions that a statement of a deliberately unfounded claim should be understood as a person's appeal to the court with a claim when:- the absence of facts entailing the emergence, modification or termination of the material legal relationship that is the subject of the claim (that is, the absence of factual validity of the claim), however, the plaintiffs indicated in support of the claim, or the absence of relevant (Article 64 of the CPC), permissible (Article 65 of the CPC), reliable (Article 67 of the CPC) evidence of the facts, entailing the emergence, modification or termination of the material legal relationship that is the subject of the claim, or in the absence of valid reasons for restoring the missed limitation period, or- failure to meet the deadline for fulfilling the obligation.For example, a participant of LLP B. sued the other four participants of LLP for invalidation and cancellation of the resolutions of the general meeting due to the lack of quorum and registration of participants in the meeting, the inclusion on the agenda of the issue of dismissal of the director of LLP V., which was not provided for in the notice, and the absence of a notice of the meeting.The court found that on December 25, 2009 and February 05, 2010, a general meeting of the LLP's participants was held, to which the plaintiff is a participant. In both cases, he was not notified of the general meeting. Earlier, prior to the filing of this claim, plaintiff V. (the former director of the LLP) was denied a claim for invalidation of the decisions of the general meeting of the LLP participants dated December 25, 2009 and February 05, 2010. Due to the omission of the limitation period, the court decision entered into force. When considering V.'s claim, B. participated in the case as a third party. The court applied the second part of Article 71 of the CPC, paragraph 3 of Article 179 of the Civil Code, Article 50 of the Law "On Limited and Additional Liability Partnerships" and concluded that the court's decision established and recognized the circumstances indicated by plaintiff B. in substantiation of the claim: absence of quorum and registration of participants in the meeting, inclusion in the the agenda of the issue of dismissal of the director of LLP V. These circumstances are binding on the court, they are not proved again in the proceedings of other civil cases involving the same persons. Plaintiff B. the six-month limitation period was missed: he learned about the decision in April-May 2010 when considering the case against V., and appealed to the court on 16.03.2011. The omission of the limitation period was the basis for the court's decision to dismiss the claim53. In this example, plaintiff B.'s claim is obviously unfounded.:- the plaintiff indicated 3 circumstances in support of the claim, which the court found to be unfounded in the previously considered case on V.'s claim. with B.'s participation: the absence of a quorum and registration of participants in the meeting, the inclusion on the agenda of the issue of dismissal of the director of the LLP;- The plaintiff filed a claim with an apparent omission of the statute of limitations, indicating that he had recently learned about the violation of his right, although he should have known about the existence and conditions of the statute of limitations when he participated in the case of claim B.The second condition for collecting damages from the plaintiff for the actual loss of time is an unfair statement of claim.The question of the interpretation of the concepts of "good faith" and "bad faith" is debatable in the science of civil law. Various aspects of the concept of "good faith" are considered in the legal literature, including Kazakh"54.____________________53 Case No. 2-1224/11 was considered by the specialized interdistrict Economic Court of the North Kazakhstan region 54 See: Bratus M.B. The relationship of law and fact in property protection //Legislation and economics. - 2005. - No. 6; Vitriansky V.V. The Civil Code and the Court //Bulletin of the Supreme Arbitration Court of the Russian Federation. - 1997. - No. 7. - p. 132; Good faith in civil law: Proceedings of the international scientific and practical conference within the framework of the annual civilistic readings, dedicated to. 20th anniversary of the Civil Code of the Republic of Kazakhstan (Almaty, May 22-23, 2014) / Ed. by M.K. Suleimenov.  Almaty, 2014. 592 p.; Yemelyanov V.I. The legal essence of a good conscience //EZH-Yurist. - 2002. - No. 18; Krasnova S.A. Definition of the concept of "good faith" in Russian civil law // Journal of Russian Law. - 2003. - No. 3; Sklovsky K.I. Application of norms on good conscience in the civil law of Russia //Economy and law. - 2002. - No. 9, etc.

Summarizing a number of judgments presented in the legal literature, it should be concluded that:- conscientiousness includes an intellectual moment: a person does not know and cannot know about the existence of any circumstances that impede the exercise of a particular right; - conscientiousness also includes a volitional moment characterized by the direction of the actions performed: a person acts without intent to cause harm. harm to another person.The opposite category of bad faith, respectively, means that:- the person knew or should have known about the existence of some circumstances preventing the exercise of a particular right, and- the person acts with intent to harm another person.

The dishonesty of filing a claim may lie in the fact that the purpose of filing a claim is not so much to protect one's right as to cause harm, hinder the exercise or protection of the rights and interests of others.For example, in the above-mentioned commentary to this article, using the example of a civil case, it follows from the conduct of plaintiff B. that he previously participated as a third party on the side of plaintiff B. - the former director of LLP, supported the position of V. in court, objected to the appointment of a new director of LLP C, using violations committed during the convening of the general meeting. At the same time, B. He did not deny that the same violations had been committed earlier during the convocation of the general meeting by the former director of LLP V. The interests of B. and V. were represented in court by the same representative, while B. himself did not participate in court.These circumstances give grounds to conclude that the purpose of B.'s claim is not so much to protect his violated rights as a participant in the LLP, as the desire to return to the position of the former director of V., as well as to prevent the appointed director of S. He could continue to manage the LLP.Consequently, in this case, there are both conditions for collecting damages from the plaintiff: a statement of a knowingly baseless claim and an unfair statement of claim.1.2. Damages for the actual loss of time may also be recovered from the defendant if there are two conditions combined: in the event of an unfair statement of a dispute against the claim.; statements of a deliberately unfounded dispute against a claim.The concepts of "unfair statement of a dispute against a claim" and "knowingly unfounded dispute against a claim" should be analyzed from the same positions as the concepts discussed above "statement of a knowingly unfounded claim" and "unfair statement of claim".An unfair statement of objection to a claim is most often aimed at delaying the entry into force of a court decision or its execution., that is, to prevent the protection and restoration of the rights and interests of others.A statement of a deliberately unfounded dispute against a claim means a clearly unfounded objection to the claim, which the defendant is aware of.Thus, the energy supply company filed a lawsuit against S. for debt collection for the consumed thermal and electrical energy. The court issued a decision in absentia to satisfy the claim, which was subsequently overturned at the request of the defendant. Upon a new review of the case, the court's decision satisfied the claim, and the debt was recovered from the defendant. In the appeals and cassation appeals, the defendant, without challenging the decision on the merits of the dispute, asked to cancel the judicial acts, pointing out that the lawsuit was filed by North Kazakhstan Energy Center LLP, and the decision was made in favor of Sevkazenergosbyt LLP, that is, the court resolved the issue of the rights and obligations of persons not involved in the case.. It follows from the case file that the claim was filed by North Kazakhstan Energy Center LLP, whose name was changed to Sevkazenergosbyt LLP during the consideration of the case, and therefore the court decision and the appeal resolution were left unchanged. The defendant, notified of the time and place of the trial, did not appear at the appeal and cassation instances. Previously, this defendant was also charged in court for the consumed thermal and electrical energy for the previous period.In this case, the defendant unfairly filed a deliberately unfounded dispute against the claim, since she was aware of the plaintiff's renaming both during the dispute and from the bills received from the energy supply company. From the actions of the defendant, who filed appeals and cassation appeals, but did not appear in court, it follows that the purpose of appealing judicial acts was the intention to delay their entry into force. Therefore, there are both conditions: an unfair statement of a dispute against a claim and a statement of a deliberately unfounded dispute against a well-founded claim.

1.3. Damages for loss of time may be recovered from any of the parties if there are a set of conditions: opposition to the correct consideration and resolution of the case; opposition to the rapid consideration and resolution of the case; Such opposition is systematic.Opposition to the proper consideration and resolution of the case consists in the adoption by the party of measures preventing the court from making a lawful and reasonable decision.This opposition may be expressed, in particular, in taking measures aimed at creating conditions that are the basis for canceling or changing the decision in accordance with Article 427 of the CPC.Thus, a party may, in violation of the requirements of the first part of Article 46 of the CPC on the fair use of procedural rights, give knowingly false, untrue explanations., which lead to the need for the court to verify the stated circumstances of the case; to present to the court obviously unreliable or forged evidence, etc.Opposition to the rapid consideration and resolution of the case consists in committing such actions that prevent the timely preparation of the case for trial, trial and adjudication.Such actions include, in particular, filing unsubstantiated petitions, and late submission of evidence.55 These include avoiding receiving notices and court summonses, which necessitates the prolongation of the preparation of the case, postponement of the trial, as well as the above-mentioned actions that prevent the proper consideration of the case.Systematic opposition to the correct and prompt consideration and resolution of a case will occur if a participant in civil proceedings has opposed the court three or more times in the course of proceedings in one civil case in the correct and timely consideration and resolution of the dispute. In this way, the legal sign of systematism differs from the sign of repetition, which involves committing an act two or more times, and from the sign of single occurrence, for which a single legal action is sufficient.56For example, a taxpayer challenged the notification of the tax authority about the additional VAT charges and the reduction of deductions. In the court's opinion, the essence of the dispute was whether or not the applicant's settlements with a third party, the LLP, were carried out. Since the evidence presented by the parties contradicted each other, the court invited the applicant and the third party, the LLP, to provide evidence of the provision of services by the latter for the repair of leased equipment. According to the applicant, such evidence was available, and therefore the court repeatedly postponed the trial in order to submit documents. Ultimately, the applicant submitted to the court the files of the LLP's documents (acts for the write-off of spare parts and defect statements) for 2006, which the court assessed as unreliable evidence, since they do not correspond to the concept of primary documents, do not record the fact of the transaction. The reconciliation report for services rendered in 2006 was drawn up on May 10, 2011, during the applicant's tax audit, after the LLP had twice previously confirmed to the tax authority that there were no settlements with the applicant.57._____________________55 Scientific and practical commentary on the Civil Procedure Code of the RSFSR. pp. 146-147. 56 Badmaev Ch.Yu. Recovery of compensation for loss of time //Lawyer's Advisor magazine. 2010. No. 3 // http://www.s-yu.ru/articles/2010/3/4926.html 57 Case No. 2-2360/11 was considered by the specialized interdistrict Economic Court of the North Kazakhstan region.

Thus, the applicant, insisting on the availability of evidence, after repeated postponements of court sessions submitted documents that were not evidence, as well as unreliable evidence, that is, he systematically opposed the correct and prompt consideration and resolution of the case.1.4. The damages provided for in this article can only be recovered from the party and a third party making independent claims on the subject of the dispute, since only these entities have a material and legal interest in the outcome of the case.This article is also applicable to the parties to the dispute in special claim proceedings.Compensation is subject to both the actual loss of time itself, as well as the loss of wages or other income, or the inability to engage in normal activities during the, actually spent on the trial (including time spent participating in court proceedings at the stage of preparation and in court proceedings, time spent preparing documents on the court case, etc.) as a result of an unfair statement, an unfounded claim or dispute against the claim, or systematic opposition to the correct and prompt consideration and resolution of the case.2. The amount of compensation is determined by the court, taking into account the specific circumstances, based on the applicable remuneration standards for the relevant work in the area.It follows from the meaning of the law that compensation for the actual loss of time can definitely be recovered in favor of an individual, based on the time spent, lost earnings or other income.If a party does not have earnings or other income due to his self-employment, depending on his occupation, the time actually spent on the lawsuit is subject to compensation., based on the average monthly salary of the corresponding labor (cowhand, milkmaid, domestic worker, etc.) in a given locality - in a given locality, and in the absence of such data - in the corresponding administrative-territorial unit (village, city, district, region).Losses for loss of time can also be recovered in favor of a legal entity, a government agency, or an individual entrepreneur whose employees were engaged in the judicial process (preparing documents, participating in court, etc.) instead of performing their usual or other official duties. The amount of compensation is calculated by determining the salary of the employee representing the organization in court for all the time actually (i.e. directly) spent by him on preparing and conducting the case in court on the basis of the personnel and accounting documentation attached to his confirmation.58.________________________58 Evseev E.F. Some issues of collecting compensation for the actual loss of time in civil proceedings //http://отрасли-права . Russian Federation/article/6717

3. The recovery of damages does not relate to the substance of the case under consideration, but to the conduct of the parties when filing a claim, objecting to the claim and during the consideration of the case. In this regard, an application for damages is filed with the court of first instance before the end of the consideration of the case on the merits, as well as with the court of appeal, if the actions falling under the provisions of part one of this article were committed by the party at the stage of appeal against the court decision.The court refuses to accept an application for damages filed at the end of the consideration of the case on the merits, applying by analogy the law (part four of Article 6 of the CPC) subparagraph 1) of the first part of Article 151 of the CPC.The application must specify the grounds for collecting damages., provided for in the first part of this article, and evidence confirming these grounds.

The application is paid by state duty in accordance with the procedure established by the Tax Code. The application unpaid by the state duty is returned to the applicant by the protocol ruling of the court. The applicant has the right to re-file an application for recovery of damages by paying the state fee before the end of the consideration of the case on the merits.The application is considered simultaneously with the main requirement.The court's decision to satisfy or refuse to satisfy the application must be motivated with reference to the established circumstances, the evidence examined and Article 114 of the CPC. The operative part of the decision indicates the court's conclusion on the application for recovery of damages for the actual loss of time.

LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

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