Comments to article 31. Exclusive jurisdiction of the Civil Procedure Code of the Republic of Kazakhstan

1. Claims for rights to land plots, buildings, premises, structures, and other objects firmly connected with land (immovable property), and for the release of immovable property from seizure, shall be filed at the location of these objects.If the real estate objects are located in different localities, the claim is filed in court at the location of one of the objects.If the real estate objects are located on the territory of a populated locality, the claim is brought to court at the location of one of the objects.

2. Claims of creditors of the testator brought against the heirs, the executor of the will (the trustee of the inheritance), are subject to the jurisdiction of the court at the location of the inherited property in accordance with the rules established by the first part of this Article.

3. Claims for recognition as an unworthy heir, recognition of an inheritance as extortionate, extension or restoration of the period for accepting an inheritance, or renunciation of an inheritance shall be filed at the place where the inheritance was opened.

4. Claims against carriers arising from contracts for the carriage of goods, passengers or baggage shall be brought to court at the location of the carrier (transport organization, individual entrepreneur).

5. Claims for damages caused by a violation by a foreign state of the jurisdictional immunity of the Republic of Kazakhstan and its property shall be filed with the court at the location of the plaintiff, unless otherwise provided by an international treaty ratified by the Republic of Kazakhstan.

Exclusive jurisdiction excludes the use of other types of territorial jurisdiction. The choice of the court does not depend on the will of the plaintiff and is precisely predetermined in the law. The filing of claims in other courts than those specified in this article is not permitted. The rules on exclusive jurisdiction are aimed at creating conditions for the full, timely and correct consideration of cases of this category, as it facilitates the collection of evidence, inspection and investigation of the subject of the dispute.

1. Exclusive jurisdiction is established for claims for rights to immovable property and for claims for the release of immovable property from seizure.Paragraph 2 of the normative resolution of the Supreme Court No. 5 of July 16, 2007 "On certain issues of dispute resolution related to the protection of the right of ownership of housing" stipulates that a claim for ownership of housing is filed in court at its location. A claim filed in violation of the rules of jurisdiction is returned, and one accepted for production is sent according to the jurisdiction.Claims for ownership of a dwelling include: claims for the reclamation of a dwelling from someone else's illegal possession; for the elimination of violations of a right not related to the deprivation of possession; for the recognition of the right to a dwelling; for the recognition of auctions for the alienation of a dwelling as invalid; on the recognition of transactions on the alienation of housing as invalid and others.Paragraph 3 of the normative resolution of the Supreme Court No. 6 dated July 16, 2007 "On certain issues of the application of land legislation by courts" states that, in accordance with paragraph 1 of Article 117 of the Civil Code, land plots are classified as immovable property. In this regard, claims for land rights must be brought to court in accordance with the article of the CPC, which provides for exclusive jurisdiction. - by their location.According to paragraph 19 of the normative resolution of the Supreme Court No. 20 dated December 24, 2010 "On certain issues of application by courts of the norms of Chapter 27 of the Civil Procedure Code of the Republic of Kazakhstan", the rules provided for in articles of the CPC on exclusive or contractual jurisdiction do not apply to cases provided for in Chapter 27 of the CPC.When applying the provisions of the first part of this article, the right to choose the plaintiff remains only in the case when the subject of the claim may be several real estate objects, namely the right to apply to the court at the location of one of the objects., but without violating the provisions on exclusive jurisdiction.

2. According to Article 1081 of the Civil Code, creditors of the testator have the right to present their claims arising from the obligations of the testator to the executor of the will (the trustee of the inheritance) or to the heirs responsible as joint debtors within the limits of the value of the property transferred to each heir.

Such claims, in accordance with the rules established by the first part of the commented article, may be submitted at the location of the inherited property.

3. Claims for recognition as an unworthy heir, recognition of an inheritance as extortionate, extension or restoration of the period for accepting an inheritance, or renunciation of an inheritance shall be filed at the place where the inheritance was opened. Such claims are brought in a lawsuit, since they are related to property interests and it is assumed that there is an inheritance dispute.In accordance with Article 1043 of the Civil Code, the place of opening an inheritance is the testator's last place of residence, and if it is unknown - the location of the property or its main part.In paragraph 3 of the normative resolution of the Supreme Court No. 5 of June 29, 2009 "On certain issues of the application of inheritance legislation by courts", the concept of the place of opening of inheritance is disclosed as follows: "The place of opening of inheritance is the testator's last place of residence. In accordance with Article 16 of the Civil Code, the place of residence is the locality where a citizen permanently or predominantly resides. According to the Resolution of the Government of the Republic of Kazakhstan dated July 12, 2000 No. 1063 "On approval of the Rules of documentation and registration of the population of the Republic of Kazakhstan", registration of citizens is carried out at the place of permanent residence. As a rule, the testator's last place of residence coincides with the place of permanent residence.If the last place of residence of the testator who owned property in the territory of the Republic of Kazakhstan is unknown or located outside it, the location of such inherited property in the Republic of Kazakhstan is recognized as the location of the inheritance (location of immovable property, place of registration of movable property, location of the bank where the testator's account is opened, etc.). If the specified inheritance is located in different places, the place of opening of the inheritance is the location of the immovable property included in it, and in the absence of immovable property, the location of the movable property or its most valuable part. The value of a property is determined based on its market value.In cases where the testator's place of residence is known to the heirs, but for some reason they cannot document it, then, at the request of the heir, the legal fact of the place of opening of the inheritance may be established by the court.In case of death of a citizen outside his permanent place of residence (for example, in connection with active military service, training, conditions and nature of work, business trip, placement in a medical institution, being in places of deprivation of liberty, etc.), the last permanent place of residence of such persons is the place where they permanently resided before their death (before being called up for military service, before entering school, before going on a business trip, before being convicted, etc.)."4. Claims against carriers arising from contracts for the carriage of goods, passengers or baggage are brought to court at the location of the carrier (transport organization, individual entrepreneur).The rule established in this norm for filing a claim at the location of the carrier (transport organization, individual entrepreneur) coincides with the rule of general territorial jurisdiction (Article 29 of the CPC) - filing a claim at the location of the defendant.

At the same time, the legislator established exclusive jurisdiction for this category in order to exclude the extension of alternative or contractual jurisdiction to these legal relations.

5. In accordance with the United Nations Convention on Jurisdictional Immunities of States and Their Property (New York, December 2, 2004)11, ratified by the Republic of Kazakhstan on October 27, 2009, our State enjoys immunity in respect of itself and its property from the jurisdiction of the courts of another State. Foreclosure on this property in the order of execution of a judicial act is allowed only with the consent of the competent authorities of the Republic of Kazakhstan, unless otherwise provided by an international agreement. In cases where a foreign State violates the jurisdictional immunity of the Republic of Kazakhstan and its property, a claim for damages is filed at the location of the plaintiff, the relevant authority of the Republic of Kazakhstan authorized to conduct such cases, unless otherwise provided by an international treaty ratified by the Republic of Kazakhstan._____________________11 United Nations Convention on Jurisdictional Immunities of States and Their Property (New York, December 2, 2004).

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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