Compensation for damage caused by poor-quality goods, work or services, violation of contractual obligations, a traffic accident in connection with the death of the breadwinner or a crime

 Legal relations arising in connection with the infliction and compensation of harm (damage) are one of the numerous categories of cases encountered in judicial practice.

The most common types of claims for damages are claims for damages caused by substandard goods, work or services in accordance with the Law on Consumer Protection, claims for termination of sales contracts due to violation of contractual obligations, claims for moral damages, claims for damages caused by a traffic accident, claims for damages in connection with the death of the breadwinner, claims for compensation for material and/or moral damage caused by the crime.

In law enforcement practice, the concept of harm and damage is of great importance, as one of the elements of an offense that generates a tort obligation (in particular, the obligation of the harm-doer to compensate for the damage caused).

Harm, in civil law, is the diminution or destruction of a subjective civil right or good. Harm may be caused to a person or property. In the legal literature and in judicial practice, the concept of "harm", "damage", "losses" is used. Harm and damage are most often considered synonymous. However, when referring to the legal meaning of these terms, it turns out that the concept of "harm" is broader than the concepts of "loss" and "damage".

In the special part of the Civil Code, obligations resulting from harm are regulated by the norms of Chapter 47, which is divided into 4 paragraphs, which systematize general provisions on compensation for harm, compensation for damage caused to life and health due to deficiencies in goods, works and services, and compensation for moral damage.

The norms of the Civil Code governing legal relations arising from the infliction of harm make it possible to establish that the term "damage" is not applied by the legislator. The legislator uses only the term "harm". However, this does not mean that when property damage is caused, the victim cannot fail to experience real damage and/or lost profits (lost income). On the contrary, practice proves that in case of unlawful encroachments on the property of citizens or legal entities, as a rule, only real damage is caused to them. As for the losses, the party to whom the harm has been caused must prove the loss of profit (lost income) caused to it.

The above gives us reason to believe that the concepts of "harm" and "damage" are not identical concepts. Moreover, the term "harm" should be used and understood in a broader sense in relation to terms such as "loss" and "damage".

What is indicated on this issue allows us to conclude that harm is a generic concept, and the type of harm depends on the object of the encroachment.

In the textbook of Civil Law, the concept of "loss" is considered as material damage expressed in monetary form." That is, there is another criterion of differentiation: if in monetary form, it is a loss, if in other material terms, it is harm.

If we turn to Article 9, paragraph 4 of the Civil Code, the distinction between losses and damage disappears: Losses mean expenses that are or should be incurred by a person whose right has been violated, loss or damage to his property (real damage), as well as lost income that this person would receive under normal conditions of turnover if his right would not have been violated (lost profit). And Article 917 of the Civil Code calls the loss of damage to property caused by illegal actions - harm.

Thus, we believe that the term "losses" usually refers to the consequences of violations of the property rights of citizens and legal entities. The consequences that may arise from encroachment on the person or non-property benefits and rights of a citizen or a legal entity use the single term "harm". The term "damage" is not used at all in this case, since the legislator proceeds from the condition that it cannot be assessed in real monetary terms if harm is inflicted on a person and his non-material benefits.

It is possible that the use of different identical words does not interfere with the application of the law, but it is necessary to streamline the use of words in the civil code or to give a clear interpretation of them.

State duty on claims for damages

When filing claims for damages, a state fee is paid in accordance with subparagraph 1) of paragraph 1 of Article 610 of the Tax Code for property claims: for individuals in the amount of 1% of the amount of the claim; for legal entities – 3% of the amount of the claim.

As indicated in the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the application by courts of the Republic of Kazakhstan of legislation on court costs in civil cases", the state fee is paid simultaneously from statements of claim containing both property and non-property claims, based on the amount established for each type of claim.

In accordance with paragraph 18 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 06/21/2001 No. 3 "On the application by courts of legislation on compensation for moral damage", citizens' claims for compensation for moral damage in accordance with current legislation as non-property lawsuits are subject to payment of a state fee in the amount of 50% MCI on the day of filing the application established by the law on the Republican budget for the corresponding fiscal year.

Filing a claim for damages

The initiation of a civil case for damages is preceded by the filing of a claim by the person concerned.

Upon receipt of the statement of claim, the judge must carefully check whether there are prerequisites for the exercise of the right to file a claim, in particular:

are there any legal prohibitions provided for in Article 153 of the CPC, entailing a refusal to accept a statement of claim;

are there any grounds provided for in Article 154 of the CPC for the return of the statement of claim;

are there any grounds for leaving the statement of claim without motion according to Article 155 of the CPC;

In addition to establishing the existence of prerequisites, the judge must ensure that the statement of claim complies in form and content with the provisions of Article 150 of the CPC and paragraphs 1-3 of Article 151 of the CPC.

A statement of claim filed with the court must comply with the requirements of Articles 150-151 of the Civil Procedure Code of the Republic of Kazakhstan.

As stated in the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 03/20/2003 No. 2 "On the application by courts of certain norms of civil procedure legislation", "... plaintiffs are required in their statements to indicate not only the requirements, but also to set out in detail the essence of the violation or threat of violation of their rights, freedoms and legally protected interests, the circumstances on which they base their requirements, as well as evidence confirming these circumstances and requirements."

By the ruling of the Tekeli City Court dated 09.01.2015, the civil case on the claim of Mavlyudova S.I. and Krementsova T.I. to Takhanuly S. for recovery of material and moral damage was left without motion, as it did not comply with the requirements of the CPC RK norms.

Upon examination of this statement of claim, it was found that the materials attached to the claim are missing: the act of inspection of apartments; the amount of damage caused has not been determined according to the act of specialists and the causes of the defect, information has not been provided for whom apartment No. 63 on Zhenis Street No. 3 in Tekeli is registered and for whom apartments No. 51 and No. 59 on Zhenis Street No. 3 in Tekeli are registered.

155 Part 2 of the CPC, if the applicant, in accordance with the instructions of the judge, fulfills the requirements listed in the definition within the time limit set by him, the statement of claim is considered filed on the day of initial submission to the court. Otherwise, the application is considered not submitted and the judge's ruling is returned to the applicant with all the documents attached to it.

The plaintiffs Mavlyudova S.I. and Krementsova T.I., in accordance with the instructions of the judge, did not comply with the requirements listed in the definition within the time limit set by him, and therefore, this application was returned to the applicants with all attached documents by the ruling of the Tekeli City Court of the Almaty region dated 21.01.2015.

So, in the Karaganda region, the prosecutor of the city of Karaganda filed a lawsuit against Gulaya O.V. and Makiyenko N.I. to recover the amount of procedural costs in the amount of 17176.18 tenge spent on conducting an expert examination in the judicial examination bodies in a criminal case.

By the ruling of court No. 2 of the Kazybekbiysky district of Karaganda, the application was refused with reference to Article 153, part 1, paragraph 1 of the CPC, as not subject to consideration and resolution in civil proceedings.

It follows from the materials of the statement of claim that the criminal case under Article 176, part 2, paragraphs "a,b" of the Criminal Code, and the criminal prosecution against Gulai O.V. and Makienko N.I., in connection with the reconciliation of the parties, that is, on non-rehabilitating grounds, was terminated by the resolution of the Department of Internal Affairs of Karaganda dated 12/30/2014.

According to Part 12 of Article 176 of the CPC, if there is data on procedural costs, the criminal prosecution body is obliged to take measures to ensure the recovery of procedural costs. The guilt of Gulai O.V. and Makienko N.I. was not established in criminal proceedings, as the case was terminated on the basis of art.67 Part 1 of the Criminal Code of the Republic of Kazakhstan at the stage of preliminary investigation. The issue of compensation for procedural costs in the decision to terminate this criminal case has not been resolved, although in accordance with paragraph 7 of Article 175 of the CPC, the amounts spent on conducting an expert examination in the judicial examination bodies relate to procedural costs and, accordingly, the procedure for their recovery is provided for by the CPC.

Thus, the legislation establishes a procedure for resolving the issue of procedural costs in a criminal case.

Failure to collect the procedural costs spent on conducting an expert examination in the judicial examination bodies in the framework of a criminal case is a procedural omission.

According to paragraph 18 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan No. 16 dated November 26, 2004 "On forensic examination in criminal cases" - the costs associated with the examination incurred by persons engaged in forensic expertise on the basis of a license, as well as by persons who do not have one, but involved in a one-time examination, by order of the authority, those conducting the criminal proceedings are charged in their favor after they submit a settlement.

Grounds for the return of the statement of claim

in accordance with art. 154 of the CPC, are:

1) the plaintiff has not complied with the procedure for preliminary pre-trial dispute resolution established by the contract or the legislation of the Republic of Kazakhstan for this category of cases and the possibility of applying this procedure has not been lost;

2) the case is beyond the jurisdiction of this court;

3) the application was submitted by an incompetent person;

4) the application is signed by a person who does not have the authority to sign it.;

5) in the proceedings of the same or another court or arbitration or arbitration court, there is a case on a dispute between the same parties, on the same subject and on the same grounds;

5-1) an agreement has been concluded between the parties in accordance with the law on the transfer of this dispute to arbitration or an arbitration court, unless otherwise provided by legislative acts of the Republic of Kazakhstan.;

6) the body authorized to manage communal property has applied to the court for recognition of the right of communal ownership of an immovable thing before the expiration of one year from the date of registration of this thing by the body carrying out state registration of the right to immovable property, with the exception of the case specified in part two of paragraph 3 of Article 242 of the Civil Code of the Republic of Kazakhstan;

7) this was stated by the plaintiff.

On the return of the application, the judge issues a ruling indicating which court the applicant should apply to if the case is beyond the jurisdiction of this court, or how to eliminate the circumstances preventing the initiation of the case. A study of the rulings on the return of claims has shown that judges find it difficult to apply paragraph 1 of Article 154 of the CPC when the plaintiff has not complied with the procedure for preliminary pre-trial dispute resolution established by the contract or legislation of the Republic of Kazakhstan for this category of cases and the possibility of applying this procedure has not been lost.

The main mistake of the courts in this matter is that obligations resulting from harm are classified as non-contractual obligations, since they arise not from a contract, but from the very fact that one person caused harm to another.

Courts, as a rule, do not specify which law establishes a preliminary out-of-court procedure for resolving plaintiffs' claims as a result of causing harm.

For this category of cases, the general rule of jurisdiction established by art. 31 of the CPC applies, the claim is filed in court at the defendant's place of residence or at the location of the body of the legal entity.

Counterclaim in cases of damages

The court accepts a counterclaim from the defendant for joint consideration in the same proceeding with the plaintiff's statement if the counterclaim meets the requirements specified in Article 157 of the CPC, such as: and

1) the counterclaim is directed to offset the original claim;

2) the satisfaction of a counterclaim excludes, in whole or in part, the satisfaction of the original claim;

3) there is a mutual relationship between the counterclaim and the initial claim, and their joint consideration will lead to a faster and more correct dispute resolution. In addition, as a result of the adoption of a counterclaim, procedural savings are also achieved, eliminating the possibility of making contradictory decisions on the case related to the subject matter of the claim or grounds.

A counterclaim is filed according to the general rules for filing a claim provided for in Article 150 of the CPC, and counterclaims must also be paid with state duty. On acceptance of a counterclaim, the judge issues a ruling on acceptance of the claim.

Consideration of civil damage compensation cases

Claims for damages are characterized by the difficulty of establishing and proving the facts of harm, as well as determining the amount of damage caused.

By virtue of the law, when damage is caused to the property of an organization or a citizen, these subjects of law have the legal opportunity to demand compensation from the harm-doer. In order for such an opportunity to arise, it is necessary to have a number of circumstances with which the law connects the origin of a legal right for a subject to claim compensation for harm and seek it through legal measures.

The peculiarity of the subjective right to compensation for harm is that it requires a set of circumstances - the so-called legal (factual) composition.

It includes as independent elements:

harm (damage, loss); illegality of the behavior of the subject who caused the harm;

the culpability of the offender's behavior and, finally, the existence of an objective causal relationship between the offender's behavior and the fact of harm to the victim.

Tort obligations protect the rights of the victim in all cases when the harm is caused outside of any legal relationship whatsoever (contractual or other binding), as well as when the damage is not fully compensated according to the rules provided for by types of insurance or other sources.

The civil legislation establishes the principle of full compensation for the damage caused. 917 of the Civil Code states that damage (property and (or) non-property) caused by unlawful actions (inaction) to property or non-property benefits and rights of citizens and legal entities is subject to compensation by the person who caused the damage in full.

According to Art. 934 of the Civil Code, the person responsible for the damage is obliged to fully compensate for the damage caused or compensate it in kind (provide an item of the same kind and quality, fix the damaged item, etc.).

In turn, clause 4 of Article 9 of the Civil Code clarifies that losses mean expenses that are or should be incurred by a person whose right has been violated, loss or damage to his property (real damage), as well as lost income that this person would have received under normal conditions of turnover if his right had not been violated. it was violated (lost profit).

Thus, the victim's losses can be roughly divided into the so-called actual damage and lost income.

Direct actual damage consists of losses resulting from: intentional destruction, damage, spoilage, theft, illegal expenditure of property, actual shortage of property, etc. Direct actual damage is usually successfully calculated and recovered from the harm-doer in judicial practice.

The same cannot be said about another type of loss - lost income.

A mandatory requirement imposed by law (for example, Article 958 of the Civil Code) for the lost income of any injured entity is the reality of its receipt, i.e. at the time of causing harm, the victim must create all the conditions for making a profit. Failure to receive profit (income) must be related to the offense by a causal relationship.

Any citizen or organization can apply for lost income if the loss of income is objectively related to an offense and the income was real.

Claims for damages are considered by the court in a court session in compliance with the rules established by the norms of Chapters 11, 17-21 of the CPC.

Cases of this category may be considered in absentia in compliance with the requirements provided for in Chapter 24 of the CPC. Such cases are not subject to writ proceedings or special claim proceedings.

The proper defendants in a damage compensation case are the harm-doers (individuals and legal entities directly responsible for causing harm or whose liability is directly provided for by legislative acts).

Claims for damages related to flooding of an apartment

Claims are filed by the owners of residential premises for compensation for damage caused by flooding of residential premises.

This category of disputes is not difficult. When satisfying these claims of the plaintiffs, the courts take into account the evidence provided by the plaintiff.: Acts drawn up with the participation of representatives of the KSK, neighbors, as well as Certificates or Reports on the assessment of the cost of the damage caused.

According to Article 917 of the Civil Code of the Republic of Kazakhstan, damage (property and (or) non-property) caused by unlawful actions (inaction) to property or non-property benefits and rights of citizens and legal entities is subject to compensation by the person who caused the damage in full.

It follows from the meaning of this rule that the legislator, firstly, establishes the obligation of the person who caused the harm to compensate him in full and, secondly, provides the only basis for exemption from liability - the absence of guilt in causing harm.

By virtue of Article 189 of the Civil Code of the Republic of Kazakhstan, the owner bears the burden of maintaining his property, unless otherwise provided for by legislative acts or a contract, and cannot unilaterally shift such a burden to a third party. The burden of maintaining property is understood as the owner's obligation to maintain the property in proper condition according to the parameters required by law. Thus, the owner is responsible for the capital and current repairs of the housing he owns.

According to paragraph 2 of Article 35 of the Law of the Republic of Kazakhstan "On Housing Relations", owners of premises (apartments) are obliged to promote the safety and safe operation of common property and premises in individual (separate) ownership.

Also, paragraph 2 of Article 4 of the above-mentioned Law, the use of a dwelling should not lead to its destruction or damage, violate the living conditions of other tenants, or cause damage to the environment.

It follows from the above-mentioned norms that the owner of the dwelling is obliged to monitor and maintain the property belonging to him in good condition, to bear responsibilities for the timely replacement of high-quality water supply systems, heat supply, heating, etc. located in his apartment and not to allow harm to third parties.

A legally significant circumstance, the establishment of which is required when considering cases of flooding, is the correct identification of the person who, in accordance with current legislation, is responsible for damage caused by flooding of residential premises.

Proper defendants may be:

- the owner or tenant of the dwelling from which the flood occurred;

- an organization that manages an apartment building;

- an organization that carried out the construction of an apartment building.

It is necessary to focus special attention on the issue of dividing the boundaries of responsibility between the owner (tenant) of a residential building and the organization managing an apartment building. They always find out the causes of flooding of an apartment, whether this was the result of improper maintenance of common property by the organization managing an apartment building. Having established that the organization had not taken measures to repair and prevent the condition of common household equipment, the company was held responsible for damage caused to the property of the owners of residential premises in an apartment building.

In the case of the flooding of the apartment, IP Komlykova N.P. appealed to the court with a claim to V.V. Devyatkin for compensation for material damage. In support of the stated claims, it is stated that flooding with hot water from the battery in Devyatkin's apartment caused damage to the plaintiff's apartment on the 2nd floor, a store on the 1st floor and goods totaling 6,314,826 tenge, and also requested to reimburse all court costs.

The defendant did not admit the claim in court, as he believes that the battery leaked due to the fault of the plaintiff herself, who was doing repairs 3 years ago in her apartment, connecting to his battery.

By a court decision dated 30.06.2015, it was decided: partially satisfy the claim, recover from Devyatkin V.V. in favor of IP Komlykova N.P. material damage in the amount of 3,431,921 tenge, court costs for the payment of state duty in the amount of 34,319 tenge, costs for the services of a representative of 343,192 tenge, for the examination of 151,200 tenge, payment of an information certificate on the market the cost of 4,500 tenge, totaling 3,965,132 tenge, the rest of the claims should be denied.

The Court of appeal stated that the court of first instance correctly established and investigated the circumstances relevant to the case, but they were given an assessment not based on the law.

By virtue of paragraph 9 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated 03/20/2003 No. 2 "On the application by courts of certain norms of civil procedure legislation", in accordance with Articles 64-70 of the CPC, courts need to keep in mind that only those evidence that is directly relevant to the subject of the dispute and collectively sufficient should be examined at a court hearing. to establish the circumstances of the case, confirm or refute the arguments of the parties on the merits of the dispute. The circumstances of the case, which by law must be supported by certain evidence, cannot be supported by any other evidence.

Compensation for damage caused by the flooding of the apartment due to the fault of the contractor during the installation of heat meters.

A.G. Vologda filed a lawsuit against L.I. Nazarova, A.B. Nazarov and JSC Zhaiykteploenergo for compensation for damage caused by the flooding of the apartment, justifying her claims by the fact that on September 23, 2014, her apartment was flooded due to the fault of the defendants.

On 23.09.2014, heat metering devices were installed. The residents of the house were not warned by employees of JSC "Zhaiykteploenergo" about the upcoming work, and the water was put into the heating system. As a result, the plaintiff's apartment, due to the fault of the defendant Nazarova, in whose apartment repairs were carried out to replace the batteries, was flooded.

According to the act of inspection of apartment No. 26 (Plaintiff), dated 24.09.2014, there are traces of a bay throughout the apartment. The reason for the flooding: when checking the communal heat meter, ZHTE employees turned on the heating of an apartment building and there were no radiators in the apartment building No. 29 (Nazarov). According to the report of Uralsk-Expertise LLP No. 14, dated 10.10.2014, on the assessment of material damage from flooding of the apartment, the cost of renovation is 62,550 tenge. The plaintiff paid 10,000 tenge for the assessment. The plaintiff, believing that the guilt of the defendants was established by the act of examination, asked the court to recover material damage and all expenses.

By the decision of the court No. 2 of Uralsk, West Kazakhstan Region, dated 02/18/2015, the claims of A.G. Vologda were partially satisfied, the court recovered from L.I. Nazarova and A.B. Nazarova in solidarity in favor of A.G. Vologda the amount of damage in the amount of 62,550 tenge, in a shared arrangement the amount of expenses in the amount of 6,813 tenge from each. The court refused to satisfy the claim against JSC Zhaiykteploenergo.

The court, rejecting the claim against JSC Zhaiykteploenergo, justified its legal position by the fact that, on the basis of the public procurement agreement No. 193 dated 05.26.2014, JSC Zhaiykteploenergo and IP Murzashev N.A. concluded an agreement for the purchase and installation of heat metering devices in residential buildings.

According to paragraphs 31, 44 of the contract, it is stated that if, in accordance with the contract, the customer must provide electricity and water in reasonable quantities to perform the work provided for in the contract, the contractor is responsible for performing the connection and for distributing water and electricity from the connection points determined by the customer. The contractor is required to monitor and direct the work using knowledge and all available capabilities. The contractor bears full responsibility and controls the means, methods, techniques, consistency and quality of work, as well as the coordination of all work under the contract. Accordingly, the contractor, IP Murzashov, who was excluded by the plaintiff from the list of defendants, is responsible for all actions under the contract. In this regard, the court legitimately indicated that JSC ZHTE is an improper defendant in the case, and the claims against it should be left without satisfaction.

Satisfying the claims against the defendants Nazarov, the court justifiably referred to Articles 188, 917 of the Civil Code, as well as report No. 14 on the assessment of material damage from flooding of the apartment located at: gor.Uralsk, A.Kerderi St., 122, sq.26, owned by the defendants by right of ownership, came to the conclusion that the Nazarovs were jointly and severally liable.

Claims for recovery of expenses related to the provision of medical care, search activities, etc. to the State revenue.

When studying damage compensation cases, it was found that the courts also consider cases of recovery of damage to the State's income in the form of expenses related to medical care and search activities against convicts.

According to Article 98 of the Criminal Code of the Republic of Kazakhstan, in case of causing material damage to the state, correctional institution or legal entities and individuals while serving their sentence, convicted persons bear financial responsibility in accordance with the procedure established by law. The convicted person must compensate for the damage caused to the state, the correctional institution, the additional costs associated with the suppression of his escape, as well as his treatment in case of intentional harm to his health.

Thus, the district court No. 2 of the Yenbekshikazakh district of the Almaty region on April 07, 2015 satisfied the claim of the State Institution "Institution of Railway 158/7" of the Ministry of Internal Affairs of the Republic of Kazakhstan against the defendant Tokhtiev T.A. for recovery of material damage.

It follows from this decision that on May 21, 2014, T.A. Tokhtiev, a convict serving a sentence in the institution, inflicted bodily injuries on himself by driving a metal object into his stomach in protest at the lawful demands of the prison staff. Tokhtiev T.A. was taken to the medical unit of the institution, where, upon examination, he was diagnosed with a penetrating wound to the anterior abdominal wall with damage to internal organs, after which an investigative team was called, as well as an ambulance for surgical intervention. In Taraz city Hospital No. 1, an operation was performed to remove a foreign object from the abdomen, where, after three days of inpatient treatment, T.A. Tokhtiev was transferred to the medical unit of the institution.

From the certificate issued by the head of the medical unit of the ZHD1158/7 DUIS institution in Zhambyl region, Captain of Justice G.N. Kalikulova, it follows that when providing medical care for the treatment of T.A. Tokhtiev, medicines totaling 3090.06 tenge were used.

According to the certificate of the city hospital No. 1 dated June 16, 2014 for No. 820, the damage related to the treatment amounted to 197,096.45 tenge.

In the aggregate of the available evidence, the court satisfied the plaintiff's claims, collecting from the defendant the amount of expenses in the amount of KZT 3,090 and KZT 197,096, since Tokhtiev T.A., while serving his sentence, caused material damage to the state and correctional institution by his actions to intentionally harm his health.

The decision of the Karatal District Court of the Almaty region dated April 14, 2015 satisfied the claim of the prosecutor of the Karatal district to recover damages from Chernyshev A.S. to the state revenue in the amount of 20,710 tenge.

As established, by the decision of the investigator of the Karatal District Police Department dated September 25, 2014, a criminal case was opened against A. Chernyshev on charges of committing a crime under part 1 of Article 175 of the Criminal Code of the Republic of Kazakhstan.

Due to his failure to appear before the preliminary investigation authorities, A. Chernyshev was put on the wanted list by a decree of the senior investigator of the Karatalsky district SB dated November 25, 2014.

According to the operational search measures carried out, 190 liters of gasoline worth 20,710 tenge were consumed. In such circumstances, the court recognized the claims of the Karatal district prosecutor as justified.

Liability for harm caused by minors

The legislator delimits responsibility for harm caused by minors, namely, Article 925 of the Civil Code stipulates that responsibility for harm caused by minors under the age of 14 is borne by their legal representatives, unless they prove that the harm was not their fault. Article 926 of the Civil Code stipulates that minors between the ages of 14 and 18 are independently responsible for the harm they have caused on general grounds, with the exceptions specified in the disposition of the article.

By the decision of the Ayyrtau district Court of 22.01.2015 of the North Kazakhstan region on the claim of Shaimakov T.A. to Bukuyeva Z.A., Bukuyev A.R. for compensation of material damage caused to minors, the claims were fully satisfied. The amount of material damage caused by 20,000 tenge and the cost of paying state duty to the court in the amount of 200 tenge was recovered from Bukuyeva Z.A., Bukuyeva A.R. in solidarity in favor of Shaimakov T.A.

The claims were motivated by the fact that on 07.10.2014, at about 19-30 o'clock, the plaintiff drove his Nissan Maxima car, license plate 242 VEA 15, along the road near the railway station in the village of Saumalkol in the Ayyrtau district of North Kazakhstan region. Five teenagers were walking along the highway on the side of the road near the Akkayin cafe. One of the teenagers threw a stone, as a result of which he broke the glass of the rear right door of his car, causing him material damage in the amount of 20,000 tenge. According to the decision on the refusal to initiate criminal proceedings dated 09.10.2014, a minor Rashitov D., born in 2003, the son of the defendants, threw a stone at the car. Taking into account the established circumstances and correctly applying the norms of the substantive law, the court considered the defendants, as the legal representatives of the minor, responsible for compensation for the damage caused.

Claims for damages resulting from unauthorized placement of advertising information on structures of bus shelters

On September 10, 2015, the Ministry of Economic and Social Affairs of Atyrau region considered a civil case on the claim of "Spetsavtobaza" LLP to IP "Show Service" for the recovery of the amount of material damage in the amount of 1,070,136 tenge.

As a result of monitoring the technical condition of bus stops in Atyrau, the plaintiff revealed the circumstances of pasting advertising posters about concerts of popular Kazakh pop performers.

In addition to information about the artists' concerts, the posters contain the contact information of the defendant IP "Show Service" and his cell phone number.

As a result of the unauthorized placement of advertising information on the structures of bus shelters, damage was caused to communal property, as the plaintiff was forced to replace polycarbonate (polygal) screens that were covered with advertising posters.

The state property in the form of bus stops, seats and garbage collection boxes was transferred to the authorized capital of the plaintiff as a public sector legal entity on the basis of the resolution of the Akimat of Atyrau dated December 12, 2013 No. 1330.

In support of the damage, the plaintiff submitted a set of the following evidence: act No. 1 of June 22, 2015 on the identification of damage, calculation of the cost of restoring the primary appearance of the bus shelter, contract No. 224 of August 19, 2014 on the purchase of goods (enamel and glass), as well as letter No. 11953 of the City Department of Architecture and Urban Planning dated August 26. August 2015, that IP "Show Service" A.N. Lepesov was not given permission to advertise at bus stops.

From the presented calculation of material damage, it is established that the basis is based on the labor costs of the driver and two road workers, including taxes, social contributions, additional payment for harmfulness, expenses for fuel, lubricants and lubricants, consumables (rubber gloves, detergents), depreciation and wear of rubber.

This calculation was rejected by the court and only the direct costs of the plaintiff were accepted in the re-calculation, which are expressed in the cost of replacing polycarbonate screens in the construction of bus shelters.

According to the Damage Detection Act, 24 stops were damaged. The cost of renovation of one bus stop is 21,700 tenge. The total amount of direct damage is 520,800 tenge, which was recovered from IP "Show Service" Lepesova A.N. in favor of LLP "Spetsavtobaza".

The satisfaction of the claims of "Spetsavtobaza" LLP to recover from IP "Show Service" Lepesov A.N. the amount of material damage in the amount of 549,336 tenge was refused.

Compensation of damage by the participants of the partnership

According to article 2, paragraph 1, of the Law of the Republic of Kazakhstan "On Limited and Additional Liability Partnerships", a limited liability partnership is a partnership established by one or more persons, the authorized capital of which is divided into shares of sizes determined by the constituent documents; participants in a limited liability partnership are not liable for its obligations and bear the risk of losses related to the activities of the partnership, within the limits of the value of the contributions they have made.

When the Karatal District Court of the Almaty region considered a civil case on 16.01.2015 on the claim of the Bankruptcy Trustee of Nurlansyn Alem LLP, N.A. Kakitaev, for recovery from K.B. Kasenov, a participant in the partnership. the amount of damage in the form of arrears in taxes and other mandatory payments to the budget of 7,145,743 tenge, the unpaid amount of the authorized capital in the amount of 97,100 tenge and expenses related to bankruptcy proceedings in the amount of 694,500 tenge, the bankruptcy trustee's claims were partially satisfied in the amount of 97,100 tenge on the grounds that according to paragraph 2.7 of the Charter K.B. Kasenov, a member of the partnership, is not liable for the obligations of the partnership and bears the risk of losses related to the partnership's activities within the value of his contribution.

In this regard, the claims of the bankruptcy trustee of Nurlansyn Alem LLP, N.A. Kakitaev, were refused to recover from K.B. Kasenov, a member of the partnership, arrears in taxes and other mandatory payments to the budget in the amount of 7,145,743 tenge, expenses related to bankruptcy proceedings in the amount of 694,500 tenge.

Claims for damages arising from the Law of the Republic of Kazakhstan "On Trademarks, Service Marks and Appellations of Origin"

According to Article 1 of the Law of the Republic of Kazakhstan "On Trademarks, Service Marks and Appellations of Origin", the exclusive right is the property right of the owner to use the trademark or appellation of origin in any way at his discretion. Use of a trademark or appellation of origin – the use of a trademark or appellation of origin on goods in respect of which they are protected and (or) their packaging, manufacture, use, import, storage, offer for sale, sale of goods with the designation of the trademark or appellation of origin, use in signage, advertising, printed products or other business documentation, transfer of trademark rights, as well as their other introduction into civil circulation. Trademark, service mark - a designation registered in accordance with this Law or protected without registration by virtue of international treaties to which the Republic of Kazakhstan participates, which serves to distinguish the goods (services) of some legal entities or individuals from similar goods (services) of other legal entities or individuals.

According to paragraph 2 of Article 43 of the Law "On Trademarks, Service Marks and Appellations of Origin of Goods", for the use of a protected trademark or appellation of origin, as well as a designation confusingly similar to it, for homogeneous goods, in violation of the requirements of this Law, the perpetrators are responsible in accordance with the laws Of the Republic of Kazakhstan.

In accordance with Article 1037 of the Civil Code, a person who has the right to use an appellation of origin, as well as consumer protection organizations, may require someone who illegally uses this name to stop using it, remove from the product, its packaging, forms and other documentation an illegally used name or designation similar to it. to the extent of confusion, destruction of manufactured images of a name or designation similar to it to the extent of confusion, and if this is not possible, seizure and destruction of the goods and (or) packaging. A person who has the right to use an appellation of origin has the right to demand compensation for losses incurred from the violator of this right (Article 9 of this Code).

By the decision of the Karasai District Court of the Almaty region on 09.06.2015, a civil case was considered on the claim of KulanOil LLP to D.N. Myrzakhmetov for damages in the amount of 79,000 tenge as a result of the sale of 15 counterfeit cans of motor oils; damage in the form of reimbursement to V.V. Shilov in the amount of 35,500 tenge; damage in the form of the cost of oil cans submitted for examination in the amount of 34,500 tenge. The plaintiff, KulanOil LLP, filed a lawsuit against D.N. Myrzakhmetov for damages, arguing that by the decision of the Specialized Interdistrict Court of Almaty dated 05/13/2014. D.N. Myrzakhmetov He was found guilty of committing an administrative offense under Article 145 of the KRK on Agriculture and was subjected to administrative punishment in the form of an administrative fine in the amount of 30 monthly calculation indices in the amount of 55,560 tenge, with confiscation of motor oils.

It follows from this resolution that on 11.01.2014, during an operational search event conducted by the staff of the UDPEP DBEKP of Almaty at the Bayanaul market, it was established that the defendant was selling Mobil, Esso automotive engine oil in violation of the Law of the Republic of Kazakhstan On Trademarks, Service Marks and Appellations of Origin. 15 cans of oil were seized from the defendant. According to the experts, the seized oil does not match the sample of the original product, i.e. it is fake. This event was initiated by V.V. Shilov, who, after buying a canister of oil from the defendant, questioned its authenticity. V.V. Shilov turned to the experts of OilSertlnternational LLP, who, according to the results of the examination, confirmed the fact of forgery.

The cost of the examination in the amount of 11,300 tenge was paid by V.V. Shilov, who applied to the public association for Consumer Rights Protection, concluding an assignment agreement with them dated 11/20/2013 and paying 20,000 tenge. After the defendant was detained, the plaintiff handed over 7 cans of oil worth 34,500 tenge for examination. Also, after Myrzakhmetov was brought to justice, as a thank you, he reimbursed the expenses incurred by V.V. Shilov: 42 00 tenge - purchase of counterfeit oil from the defendant; 11 300 tenge - payment to experts; 20,000 tenge - payment to the consumer protection company "Adal"; total amount of 35,500 tenge.

The court found that the plaintiff is the only official representative of the trademark holder "Mobil", "Esso" in the territory of the Republic of Kazakhstan. In connection with the illegal actions of the defendant, the plaintiff suffered damage in the amount of 79,000 tenge as a result of the sale of 15 counterfeit cans of motor oils, and according to paragraph 4 of Article 9 of the Civil Code, a person whose right has been violated may demand full compensation for the losses caused to him, unless otherwise provided by legislative acts or a contract.

In addition, the plaintiff suffered damage in the amount of 34,500 tenge, which was caused by the transfer of 7 cans of oil by the plaintiff for an expert examination conducted to determine the quality of the oil seized from the defendant.

The claims of KulanOil LLP against D.N. Myrzakhmetov for damages have been partially satisfied. Damage in the amount of 113,500 (34,500 tenge and 79,000 tenge) was recovered from D.N. Myrzakhmetov in favor of KulanOil LLP. Regarding the plaintiff's claims regarding the recovery of 35,500 tenge from the defendant, the expenses paid by V.V. Shilov, at whose request the defendant's check was initiated, followed by bringing the latter to criminal responsibility, the court considers the claims in this part not to be satisfied, since it is established that the payment of the specified amount to V.V. Shilov. It was made on the basis of an agreement concluded between the plaintiff and V.V. Shilov, according to which the plaintiff, taking into account the actions of V. Shilov, agreed to voluntarily reimburse V. Shilov's expenses.

Compensation for damage in case of loss or damage of cargo or baggage during transportation

By virtue of the requirements of Article 705 of the Civil Code of the Republic of Kazakhstan, the Carrier ensures the safety of cargo or baggage from the moment they are accepted for carriage until they are delivered to the recipient, the person authorized by him or the person authorized to receive the baggage. The carrier is responsible for the loss of the cargo or baggage, unless he proves that the loss, shortage or damage (damage) of the cargo or baggage was not his fault.

The damage caused during the transportation of cargo or baggage is reimbursed by the carrier.:

1) in case of loss or shortage of cargo or baggage - in the amount of the value of the lost or missing cargo or baggage;

2) in case of damage (spoilage) of cargo or baggage - in the amount of the amount by which its value has decreased, and if it is impossible to restore the damaged cargo or baggage - in the amount of its value;

3) in case of loss of cargo or baggage delivered for carriage with a declaration of its value - in the amount of the declared value of the cargo or baggage.

Documents on the reasons for the non-safety of cargo or baggage (commercial act, general form act, etc.), drawn up by the carrier unilaterally, are subject to court evaluation in the event of a dispute, along with other documents certifying circumstances that may serve as a basis for liability of the carrier, sender or recipient of cargo or baggage.

By virtue of the requirements of paragraph 18 of the Convention for the Unification of Certain Rules Relating to International Air Transport (Warsaw Convention), the carrier is liable for damage resulting from the destruction, loss or damage of checked baggage or goods if the incident causing the damage occurred during air transportation.

These norms indicate the possibility of bringing the carrier to civil liability.

Claims for damages arising from employment contracts

In accordance with the terms of the employment contract, the employee undertakes to faithfully fulfill his labor obligations, orders and orders of his employer, and takes care of property. The damage and waste caused by the employee is compensated in accordance with the current legislation.

According to Article 160 of the Labor Code of the Republic of Kazakhstan, a party to an employment contract who has caused damage (harm) to the other party compensates it in accordance with the Labor Code and other laws of the Republic of Kazakhstan. Termination of an employment contract after damage has been caused does not entail the release of a party to an employment contract from material liability for compensation for damage caused to the other party.

In accordance with paragraph 3 of Article 161 of the Labor Code of the Republic of Kazakhstan, an employee is financially liable to the employer for damage caused by loss or damage to the employer's property.

By virtue of paragraph 2 of Article 165 of the Labor Code of the Republic of Kazakhstan, the employee is obliged to compensate for direct actual damage caused to the employer.

In accordance with article 167 of the Labor Code of the Republic of Kazakhstan, financial liability in the full amount of damage caused to the employer is assigned to the employee in case of failure to ensure the safety of property and other valuables transferred to the employee on the basis of a written agreement on assuming full financial responsibility.

According to Article 168 of the Labor Code of the Republic of Kazakhstan, an employee holding a position or performing work related to the storage, processing, sale (vacation), transportation, use or other use of property and valuables transferred to him during the production process and the employer conclude a written agreement on the full individual financial responsibility of the employee for not ensuring the safety of property and other values transferred to the employee.

When considering these cases, the material damage caused to the plaintiffs as a result of shortage, theft, revealed by the results of the audit, is reasonably recovered from the material person by the courts.

Claims for damages under lease agreements and other agreements

In accordance with Article 272 of the Civil Code of the Republic of Kazakhstan, the obligation must be performed properly in accordance with the terms of the obligation and the requirements of the law, and in the absence of such conditions and requirements – in accordance with business practices or other commonly imposed requirements.

In accordance with the requirements of Articles 268,271,272,349 of the Civil Code of the Republic of Kazakhstan, obligations arising from the contract, causing harm or other grounds specified in art.7 of the Civil Code must be performed by the parties properly, in case of non-performance of the contract by one of the parties, the party that performed the obligations has the right to require the other party to perform the obligation. A breach of an obligation is defined as its non-fulfillment or improper fulfillment.

350 of the Civil Code of the Republic of Kazakhstan, the debtor who has violated the obligation is obliged to compensate the creditor for the losses caused by the violation. The universality of compensation for damages lies in the fact that they are subject to compensation in all cases of violation of the obligation.

Claims for recovery of the amount of damage related to compensation for damage caused to the environment.

When resolving disputes related to the application of environmental legislation, it is necessary to be guided by the Constitution of the Republic of Kazakhstan, the norms of the Environmental Code, the Civil Code, the Water Code, the Forest Code, the Code of Administrative Offenses, and the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the practice of applying Environmental Legislation by Courts" dated 12/22/2000.

In some cases, fines were levied from subsurface user enterprises for violations of environmental legislation, in other cases their collection was refused. In all the cases studied, the judicial acts of higher authorities remained unchanged.

Thus, by the decision of the Council of Economic and Social Council of the Almaty region dated 22.10.2015, the claim of the Republican state Institution "Department of Ecology for the Almaty region of the Committee for Environmental Regulation and Control of the Ministry of Environment and Water Resources of the Republic of Kazakhstan" on recovery from IP "Sengirbayeva N.B." to the state revenue the amount of damage in the amount of 39,996 tenge was satisfied. It follows from this court decision that on the basis of a letter from the Talgar district Prosecutor's Office No. 2-0418-15-02332 dated 04/24/2015 and an appeal from Nurtazina AA. K.O. Sadykov, the State environmental inspector of the RSU "Department of Ecology for the Almaty Region" in the Talgar district, conducted an unscheduled inspection of the activities of IP Sengirbayeva N.B. for compliance with environmental legislation, according to the inspection Appointment Act No. 164/14 dated 05/20/2015, registered in the Talgar branch of the UCPS and SU on 05/26/2015.

The inspection revealed that on the territory of the land plot of IP "Sengirbayeva N.B." there are two baths with a chimney 2.5 meters high, which are operated for commercial purposes (one small bathhouse does not work). The baths are located at a distance of 4-5 meters from the apartment building of Mrs. Nurtazina A. According to the defendant's explanation, from January 1 to May 31, 2015, 5.0 tons of coal were consumed for a paid bathhouse for heating. The audit revealed that the defendant carries out his activities in violation of environmental legislation, namely: 1) an EIA (environmental impact assessment) project has not been developed for the sources of emissions of harmful substances into the environment and there is no positive conclusion from the state environmental assessment; 2) no permit for emissions into the environment has been obtained. In this connection, the defendant carried out his activities in terms of operating a paid bathhouse, without permits.

As a result of the audit, the relevant act No. 164/14 was drawn up, according to which it was established that during the conduct of his activities, the defendant had allowed unauthorized release of pollutants into the atmosphere without an environmental permit.

For violating the requirements of environmental legislation, by resolutions of State inspector Sadykov K.O. No. 07 and No. 08 dated June 03, 2015, the defendant was brought to administrative responsibility under Articles 332 and 328 of the Administrative Code with the imposition of administrative penalties in the form of fines of 30 MCI in the amount of 59,460 tenge for each offense.

On June 23, 2015, the head of the Department of Ecology, K.E. Bayedilov, issued an order No. 04-15/1002 to the defendant on compensation for damage caused to the environment in the amount of 39,996 tenge.

Subparagraph 48 of paragraph 1 of Article 1 of the Environmental Code of the Republic of Kazakhstan establishes that environmental pollution is the entry into the environment of pollutants, radioactive materials, production and consumption waste, as well as the environmental impact of noise, vibrations, magnetic fields and other harmful physical influences.

According to paragraph 1 of Article 69 of the Environmental Code of the Republic of Kazakhstan, nature users who emit emissions into the environment are required to obtain a permit for emissions into the environment, with the exception of pollutants from mobile sources.

In this case, the defendant did not have such a permit in the period from January 01 to May 31, 2015 and allowed pollutants to be released into the environment during the combustion of 5.0 tons of coal without proper permission, thereby violating the above-mentioned requirement of the law, therefore, he must compensate for the damage he caused to the environment.

Article 321 of the Environmental Code of the Republic of Kazakhstan provides that persons who have committed environmental offenses are obliged to compensate for the damage caused by them in accordance with this Code and other legislative acts of the Republic of Kazakhstan.

In accordance with paragraph 5 of the Rules for the Economic Assessment of Damage from Environmental Pollution, approved by the Decree of the Government of the Republic of Kazakhstan dated June 27, 2007 No. 535 (hereinafter referred to as the Rules), the economic assessment of damage is carried out in accordance with art. 109 of the Environmental Code.

As a result of the unauthorized release of pollutants into the atmosphere, damage was caused to the environment in the amount of 39,996 tenge, calculated in accordance with the Rules.

Regulatory legal acts

The main regulatory legal acts to be applied in the consideration of cases in this category are the Constitution of the Republic of Kazakhstan, the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the Housing Code (hereinafter referred to as the Housing Code) and other legislative acts regulating property rights, property rights and issues related to with obligations arising as a result of causing harm.

Among the by-laws, the provisions of which regulate compensation for damage, it is necessary to indicate the acts approved by the Decree of the Government of the Republic of Kazakhstan; Instructions approved by relevant Ministries on the procedure for determining the amount of damage.

Also, the courts, when resolving cases of this category, are guided by the Regulatory Decisions of the Supreme Court of the Republic of Kazakhstan (hereinafter – NP) "On the court Decision" No. 5 dated July 11, 2003 (as amended on June 29, 2009), "On the Practice of Courts applying Legislation on Consumer protection" No. 7 dated July 25, 1996 (with amendments and additions as of 12/30/2011), "On the application by courts of legislation on compensation for Moral damage" No. 3 dated June 21, 2001 (with amendments and additions as of December 30, 2011), "On the Examination of Civil Cases" No. 14 dated December 22, 1985 (with amendments dated 06/18/2004), "On the application by the courts of the Republic of Kazakhstan of legislation on court costs in civil cases" No. 9 dated December 25, 2006 (as amended on December 30, 2011), "On the preparation of civil Cases for trial" No. 21 dated December 13, 2001 (as amended on December 29, 2012), "On the application by Courts of certain Norms of civil law Procedural legislation" No. 2 dated March 20, 2003 (as amended on December 29, 2012), etc.

Attention!

      The Law and Law Law Firm draws your attention to the fact that this document is basic and does not always meet the requirements of a specific situation. Our lawyers are ready to assist you in drafting any legal document that suits your situation.

     For more information, please contact a Lawyer/Lawyer by phone; +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.

  

  

President    

Republic of Kazakhstan     

© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan  

 

 Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases