Comments on Article 364. Filing a complaint of the Civil Procedure Code of the Republic of Kazakhstan

1. An interested person who considers a notarial act performed or a refusal to perform a notarial act to be incorrect has the right to file a complaint about this with the court at the location of the notary or an official authorized to perform notarial acts.

2. Complaints about incorrect certification of wills and powers of attorney or refusal to certify them by officials listed in the law shall be filed with the court at the location of a hospital, other inpatient medical and preventive institution, social protection institution, relevant social protection agency, expedition, hospital, military educational institution, military unit, compounds, institutions, organizations, and places of detention.

3. Complaints about incorrect certification of a will or refusal to certify it by the captain of a marine vessel or an inland navigation vessel flying the flag of the Republic of Kazakhstan shall be filed with the court at the place of the vessel's home port.4. The complaint shall be filed with the court within ten days, calculated from the day when the applicant became aware of the notarial act performed or the refusal to perform the notarial act.

1. One of the most important guarantees of ensuring the legality of notarial activity and ensuring the rights and legitimate interests of citizens is the possibility of appealing against the actions (inaction) of notaries, as well as persons authorized to perform certain notarial acts. According to the legislation on notaries, public and private notaries, officials of akims of cities of regional significance, towns, villages, and rural districts authorized to perform notarial acts have the right to perform notarial acts.; persons performing consular functions on behalf of the Republic of Kazakhstan; other persons authorized by law to perform notarial acts. Complaints about improper performance of a notarial act or refusal to perform a notarial act by a notary or persons authorized to perform notarial acts in accordance with subitems 2), 3), 4) of paragraph 2 of Article 1 of the Law "On Notaries" are subject to special proceedings.

Notarial acts in accordance with Chapter 6 of the Law "On Notaries" include: certification of the transaction; certification of the constituent documents of business partnerships; appointment of a trustee of the inheritance; issuance of a certificate of inheritance; issuance of a certificate of ownership of a share in the common property of spouses and other persons with property on the right of common joint ownership; imposition and lifting of the prohibition of alienation of property; evidence of the correctness of copies of documents and extracts from them; evidence of the correctness of the translation of documents from one language to another; certification of the fact that a citizen is alive; certification of the fact that a citizen is in a certain place; certification of the time of presentation of documents; transfer of the application of individuals and legal entities to other individuals and legal entities; acceptance of money as a deposit; making executive inscriptions; certifying a dispute settlement agreement; protesting bills of exchange; accepting documents and securities for safekeeping; making maritime protests; providing evidence and other actions provided for by legislative acts of the Republic of Kazakhstan. An interested person who considers a notarial act performed or a refusal to perform a notarial act to be incorrect has the right to file a complaint about this with the district court at the location of the notary or an official authorized to perform notarial acts.

In this case, interested parties should include persons in respect of whom a notarial act has been performed, or persons who have been refused to perform it. As for other persons, both citizens and legal entities, who believe that their rights are affected in connection with the commission of a notarial act or refusal to perform a notarial act, they have the right to apply to the court in the order of claim proceedings.When accepting a complaint about a notarial act or a refusal to perform it, it is necessary to find out whether there is a dispute about civil law. If it appears from the complaint and the documents attached to it that such a dispute exists or a dispute under the jurisdiction of the court arises during the consideration of the case initiated by the complaint of the person concerned, the judge should, based on the requirements of Article 304 of the CPC, rule on leaving such a complaint without consideration, explaining to the applicant his right to file a claim with the court of jurisdiction. In this case, the judge does not have the right to cancel the performed notarial act or oblige the notary to perform it, that is, to resolve the complaint on its merits. Complaints about the refusal to issue a certificate of inheritance rights due to missing the deadline for its adoption cannot be considered in a special procedure. If the heir actually accepted the inheritance and submitted the necessary documents to the notary, but was refused a certificate of inheritance, then his complaint is subject to special proceedings. In accordance with Article 48 of the Law "On Notaries", a notary refuses to perform a notarial act if the commission of such an act is contrary to the law, the action is subject to be performed by another notary, an incapacitated citizen or a representative who does not have the necessary authority has requested a notarial act, a transaction performed on behalf of a legal entity contradicts the purposes specified in its articles of association or regulations, the transaction does not comply with the requirements of the law, the documents submitted for the notarial act, they do not comply with legal requirements. Notaries, at the request of persons who have been refused to perform a notarial act, must state the reasons for the refusal in writing and explain the procedure for appealing it. In these cases, the notary issues a resolution on the refusal to perform a notarial act within ten days. The decision on refusal to perform a notarial act must specify: which notarial act was requested by the applicant, as well as the reasons (with reference to legislation) for which he was refused to perform a notarial act.

In cases where authorized officials refuse to perform a notarial act, they must also, at the request of the person who was refused, state the reasons for the refusal in writing and where the refusal can be appealed. A complaint about the incorrect commission of a notarial act is filed with the court if, in the opinion of the person concerned, the notary or an authorized person violated the rules established by law for its commission, or the corresponding action was committed unreasonably. The complaint must specify: the court where the application is being submitted, and all necessary information about the person concerned, the address of his place of residence, the name of the representative and his address, if a representative will participate in the case. The application shall indicate the surname and initials of the notary or authorized person who performed the action or refused to perform it, indicating the location of the notary or the name and location of the organization, which specific action is being appealed (the content of this action, the date of the commission), the circumstances under which he considers the actions to be incorrect, and a link to evidence. In accordance with the tax legislation, when filing a complaint about the incorrect commission of a notarial act or the refusal to perform a notarial act, the applicant must pay a state fee in the amount of 50% of the monthly calculation index. Complaints about actions of notaries that are not related to the essence of the notarial acts performed by them are considered by the relevant territorial body of justice and notary chambers in accordance with the provisions of articles 27 and 33 of the Law "On Notaries".A complaint about the improper performance of notarial acts or the refusal to perform them is submitted by interested persons to the court in accordance with the rules of territorial jurisdiction established in the commented article. The term "location of a notary or an official authorized to perform notarial acts" in the article refers to the area (city) where the state notary office is located or the premises of a private notary at the place of registration or the local executive authority, whose officials are authorized to perform notarial acts.

2. Complaints about incorrect certification of wills and powers of attorney or refusal to certify them by officials of a hospital, other inpatient medical and preventive institution, social protection institution, relevant social protection agency, expedition, hospital, etc. are filed with the court at the location of the relevant institution.

3. A complaint about incorrect certification of a will or refusal to certify it by the captain of a marine vessel or an inland navigation vessel shall be filed at the place of the vessel's home port. According to the provisions of the Law "On Merchant Shipping" and the Rules of State Registration of Ships and Rights to Them, approved by Resolution No. 49 of the Government of the Republic of Kazakhstan dated January 17, 2003, the term "place of home port of a marine vessel or an inland navigation vessel" means the place of their state registration in one of the sea or river ports of the Republic of Kazakhstan.

4. The complaint shall be filed with the court within ten days when the interested person has become aware of the notarial act performed or of the refusal to perform the notarial act. The course of the procedural time limits is regulated by Articles 121-123 of the CPC (see commentary).The time limits established by part four of the commented article may be restored by the court if they are missed for reasons recognized by the court as valid according to the rules established by Article 126 of the CPC.

When verifying the applicant's compliance with the ten-day deadline, it is necessary to clarify the circumstances related to its course, including:

1) the date of the notarial act or the refusal to perform it;

2) the date on which the applicant became aware of the notarial act that he disputes, or of the refusal to perform it;

3) the reasons why the applicant applied to the court after the expiration of the ten-day period, if this was the case.

If the court finds that the time limit for challenging a notarial act (refusal to perform it) was missed by the applicant for a valid reason, it may restore this time limit.

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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