Comments to Article 9. Respect for honor and dignity, business reputation of persons involved in the case of the Civil Procedure Code of the Republic of Kazakhstan

1. In the course of civil proceedings, actions that degrade honor or dignity, or detract from the business reputation of a person participating in the civil proceedings, are prohibited.2. Moral damage caused to an individual, losses caused to an individual or legal entity in the course of civil proceedings by illegal actions of state bodies and officials, as well as in connection with the commission of the actions specified in part one of this Article by other persons, shall be reimbursed in accordance with the procedure established by law.1. Human honor and dignity belong to a special group of objects of civil rights - intangible benefits, which are understood as benefits and freedoms that have no economic content and are inseparable from the personality of their bearer, recognized by current legislation.The regulation and protection of intangible assets are carried out comprehensively by the norms of a number of branches of law. Article 17 of the Constitution stipulates that human dignity is inviolable. No one should be subjected to torture, violence, or other cruel or degrading treatment or punishment.The Civil Code attributes the honor and dignity of the individual to the intangible benefits acquired by citizens by virtue of birth. They objectively exist independently of their legal regulation and, only in cases of encroachment on these benefits, they need legal protection. The right of citizens to protect their honor, dignity and business reputation is their constitutional right, and business reputation is also one of the conditions for their successful activities.For a deeper understanding of the essence and content of this principle of civil procedure, it is necessary to refer to the definition of "honor" and "dignity" in 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." The normative resolution defines honor as a public assessment of a person, a measure of his spiritual and social qualities.; dignity as an internal self-assessment of a person's own qualities, abilities, worldview, and social significance (paragraph 1, paragraphs 3, 4 of the resolution).Since the concepts of "personality" reveal a person's involvement in public relations, his position in society, there is every reason to assert that any encroachment on social status, honor and dignity, personal beliefs (unless, of course, they are illegal), self-esteem, and the established system of interpersonal relations of a person is prohibited. Such a legal relationship is absolute, since absolutely everyone is opposed to the authorized entity, who is obliged to refrain from violating this right. In case of its violation, it acquires the character of a relative legal relationship.In order to ensure the established order in the court session, the civil procedural legislation establishes the figure of the chairman. The duties of the presiding judge are performed by the judge reviewing the case.Any actions of the judge, his address to the participants in the process should be respectful, regardless of the behavior of the participants themselves. A court decision may not contain information that could in any way degrade the honor and dignity of a person.If humiliation of honor or belittlement of dignity has occurred by the court at a court hearing, the injured party may file a complaint with the Judicial Ethics Commission to resolve the issue of holding the judge accountable.2. Moral harm should be understood as the moral or physical suffering experienced by a citizen as a result of an unlawful violation, diminution or deprivation of personal non-property rights and benefits belonging to him. In accordance with Articles 9 and 141 of the Civil Code, personal non-property rights and benefits are protected by a court by:

recognition of rights; restoration of the situation that existed before the violation of the right;

suppression of actions violating the law or creating a threat of its violation;

awards for performance of duties in kind;

recovery of losses, penalties; invalidation of the transaction; compensation for moral damage; termination or change of legal relations;

recognizing as invalid or not subject to application an act of a government agency or a local representative or executive body that does not comply with legislation;

the collection of a fine from a government agency or official for obstructing a citizen or a legal entity in the acquisition or exercise of the right.Personal non-property rights and benefits are protected by the court using both the above-mentioned methods in their entirety and each of them separately.In accordance with subparagraph 1) of Article 187 of the Civil Code, the limitation period does not apply to claims for the protection of intangible assets. At the same time, it should be taken into account that, in accordance with the Law "On Legal Acts", legislative acts providing for the protection of personal non-property rights of citizens are applied to legal relations that arose after their entry into force, unless otherwise provided for by legislative acts.In accordance with paragraph 1 of Article 923, paragraph 1 of Article 922, paragraph 3 of Article 951 of the Civil Code, moral damage is compensated, regardless of the fault of the causer, in cases where:1) harm is caused to the life and health of a citizen by a source of increased danger; 2) harm is caused to a citizen as a result of his unlawful conviction, illegal criminal prosecution, illegal use of detention, house arrest or recognizance as a preventive measure, illegal imposition of administrative penalties in the form of arrest, illegal placement in a psychiatric medical institution or other medical institution; 3) harm caused by the dissemination of information discrediting honor, dignity and business reputation; 4) other cases, provided for by legislative acts.Since the defendant in claims for compensation for moral damage in monetary terms at the expense of the state treasury (republican or local budgets) is the state, the jurisdiction of cases in this category should be determined at the location of the representative of the state treasury.The representative of the State treasury may be the Ministry of Finance or other government agencies, legal entities or citizens., having special powers to represent the interests of the state treasury.When considering cases of compensation for damage, it is necessary to identify a representative of the state treasury, as well as the administrator of the relevant budget program, and involve them in the consideration of cases of citizens' claims for compensation for moral damage in monetary terms.

An additional comment Provides for liability for actions that detract from the business reputation of a person involved in a civil proceeding. "The expansion of the principle at the expense of the business reputation of legal entities must necessarily be supported by the possibility of protecting it and compensating for the damage caused"_________________ Report by V. Lukashevich (European Court of Human Rights) at the international conference in the Supreme Court, 06.06.2014. 

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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