Disputes over loan agreements concluded between individuals

The loan agreement is one of the traditional binding structures that serve the money turnover. As the practice of generalizing this category of cases has shown, loan relations involving citizens have become the norm of civil law turnover, but having become such a norm, and having a sufficient legal framework, these relations are perceived somewhat superficially by specific participants in the citizens.

The definition of a loan agreement is contained in paragraph 1 of Article 715 of the Civil Code, by virtue of which, under a loan agreement, one party (the lender) transfers, and in cases provided for by this Code or the agreement, undertakes to transfer ownership (economic management, operational management) to the other party (the borrower) money or other things defined by generic characteristics, and The borrower undertakes to return the same amount of money (loan amount) or an equal number of items of the same kind and quality to the lender in a timely manner.

It follows from the content of the above rule that the loan agreement is real, therefore, the lender transfers money or things determined by generic characteristics to the borrower, not in the order of fulfilling its contractual obligations, but during the conclusion of the agreement itself. If there is a properly executed agreement, this agreement can be considered concluded only at the time of transfer of the loan object to the lender. It is a classic example of a unilaterally binding agreement, since the lender has only rights (for example, the right to demand repayment of the loan amount, payment of interest, etc.), and the borrower has only duties (for example, to repay the debt and pay interest). The borrower's obligation is based on the fact that the lender has transferred money or other items determined by generic characteristics. It follows that the loan agreement is a causal transaction.

The purpose of the loan agreement is to transfer ownership of money or things defined by generic characteristics to the borrower, subject to the return of the same amount or an equal number of other things of the same kind and quality.

The subjects of the loan agreement (lender and borrower) can be any legal and natural persons, as well as stateless persons.

The subject of the loan is generic consumable interchangeable items, including a monetary amount denominated in tenge or a foreign currency.

From the literal interpretation of paragraph 1 of Article 715 of the Civil Code, it follows that objects of civil rights that do not have a tangible form cannot be the subject of a loan.

The essential condition of the loan agreement, necessary for the existence of this contractual type, should be considered the subject of the loan agreement.

The subject of the loan agreement is the borrower's action to repay the loan item he previously received.

In the absence of an agreement between the parties regarding the subject matter of the loan agreement, the agreement in question should be considered not concluded.

When applying the considered norm of Article 715 of the Civil Code in judicial practice, the question arises whether it is permissible to recognize a loan agreement concluded in which the following two features are simultaneously present:

1) the subject of the loan is not defined specifically enough — "no more than a certain amount (number of things)";

2) the lender has transferred to the borrower a certain number of generic items within the limit agreed upon by the contract, which is documented by appropriate documents (for example, a receipt or a cash receipt).

Thus, the missing condition of the loan agreement was subsequently specified by the parties at the time of transfer of the loan item, however, there is no clear provision in the agreement on how many generic items the borrower is obliged to return to the lender.

"contract as a legal relationship" and "contract as a document". The legal relationship of obligations is unified, however, it can be formalized not by one document, but by several. The missing condition of the loan agreement on the subject of the agreement was agreed upon by the parties at the time of transfer of the loan item, which is documented in the relevant written documents. It follows that the loan agreement in the above example was actually executed by two different documents: a document called the "loan agreement" by the parties, and a document confirming that the borrower received a certain amount of the loan item (receipt, cash receipt, etc.).

Since the loan agreement is real, it should be considered concluded only from the moment of transfer of the loan subject, provided that the parties had previously reached an agreement on all the essential terms of this agreement (paragraph 1 of Article 393, paragraph 2 of Article 394 of the Civil Code).

Judicial practice allows us to draw the following conclusions:

- the loan amount can be considered transferred to the borrower only if he has a real opportunity to dispose of the borrowed funds.;

- the transfer of the loan amount in installments is not a reason for recognizing the loan agreement as not concluded or invalid; - late transfer of money is not a reason for recognizing the loan agreement as not concluded or invalid;

- transfer of borrowed funds to a third party's account at the request of the borrower or in accordance with the terms of the agreement is a proper transfer of the loan facility;

- the transfer of borrowed funds to a third party's account at the request of the borrower is not a proper transfer of the loan object, if the borrower's letters with such a request, invoices and payment orders from the lender do not contain references to the loan agreement.;

- funds under the loan agreement can be transferred by assigning the lender's claim rights to a third party; it was stated above that the loan agreement is real, and therefore it should be considered as a unilaterally binding transaction.

In this regard, after the conclusion of the contract (i.e. after the transfer of the loan amount to the borrower), only the obligations of the borrower arise. There may be several of them: under the loan agreement, the borrower, in accordance with the Civil Code, is obliged to: repay the debt (Article 722 of the Civil Code), pay interest if they were conditional (Article 718 of the Civil Code), ensure the availability and safety of collateral for its obligations (Article 721 of the Civil Code).

Jurisdiction over disputes related to the fulfillment of obligations under loan agreements

Article 31 of the CPC establishes the general principle of jurisdiction, according to which a claim is brought to court at the defendant's place of residence.

The jurisdiction of civil cases in disputes related to the conclusion, modification, termination and fulfillment of obligations under loan agreements concluded between individuals is determined by the courts according to the general rules of territorial jurisdiction.

By the ruling of the Zhambyl District Court dated February 06, 2014, the materials of the civil case on the claim of Tashkaraev T.K. to Koshtaev A.A. for the recovery of the debt amount were sent to the jurisdiction of the Karasai District Court of the Almaty region.

These conclusions of the court are motivated by the fact that it follows from the statement of claim that the defendant A.A. Kostaev lives at the address: Zhambyl region, Zhambyl district, Asa village, Zheleznodorozhnaya St., house 2, square 1. However, during the trial, a petition was received from the plaintiff Tashkaraeva T.K. to send the case to the jurisdiction of the place of residence and the registration of the defendant A.A. Koshtaev in the Karasay district Court of the Almaty region.

As it turned out, according to the address certificate, according to information from the state database, the defendant A.A. Koshtaev is listed as registered at the address: Almaty region, Karasai district, Akzhar village, Jabaeva St., house number 100.

Meanwhile, Part 1 of Article 36 of the CPC establishes the general rule of immutability of the jurisdiction of a case: if a case is accepted by a court in compliance with the rules of jurisdiction, it must be resolved by this court, even if the case later becomes the jurisdiction of another court. This means that, as a general rule, a change in circumstances affecting the determination of the jurisdiction of a case after its acceptance by the court has no legal significance.

The defendant's change of place of residence during the course of the proceedings is not a ground for changing the jurisdiction of the case, which the court has accepted into its proceedings in compliance with the rules of jurisdiction.

When determining the jurisdiction of cases of the generalized category, one should proceed from the terms of the agreement between the parties, according to which the parties can change the territorial jurisdiction Based on the principle of dispositivity of the civil procedure, the parties can use the right to choose between several courts to determine the jurisdiction of the case, while the parties can only change the jurisdiction established by Article 31, part 9 of Article 32 of the CPC (at the place of conclusion or place of execution of the contract).

The court should take into account that an agreement on changing territorial jurisdiction is concluded between the parties before filing a claim with the court in accordance with the procedure established by law, and it is necessary to establish whether this agreement has been challenged or whether it has been declared invalid.

Since the agreement of the parties on the determination of territorial jurisdiction, reached on the basis of Article 34 of the CPC, is mandatory not only for the parties, but also for the court, the court does not have the grounds provided by law for the return of the statement of claim.

Refusal to accept the statement of claim

Upon receipt of a statement of claim, the judge first checks whether the person who applied to the court has the right to file a claim.

According to Article 153 of the CPC, a judge refuses to accept a statement of claim if:

1) the application is not subject to consideration and resolution in civil proceedings;

2) there is a court decision that has entered into legal force, issued in a dispute between the same parties, on the same subject and on the same grounds, or a court ruling on the termination of proceedings in connection with the plaintiff's rejection of the claim or on the approval of a settlement agreement between the parties or an agreement on the settlement of a dispute (conflict) through mediation;

3) there is an arbitration or arbitration court decision adopted in a dispute between the same parties, on the same subject and on the same grounds, and the court has become aware of this.

The reasons given for refusing to accept applications are exhaustive. In order to determine whether or not a person has the right to file a claim, the judge must be guided by the norms set out in parts 1 and 2 of Article 8, Article 45, parts 1-4 of Article 48, part 3 of Article 55, Article 56, part 1 of Article 153 of the CPC.

At the same time, the constitutional principle should be strictly observed, which guarantees everyone judicial protection from any unlawful decisions and actions of state bodies, organizations, officials and other persons that infringe on or restrict the rights, freedoms and legitimate interests provided for by the Constitution and laws of the Republic.

A refusal to accept an application is made only in cases where the person concerned does not have the right to file a claim. And this may be when the application is subject to consideration in a different non-judicial manner, or there are judicial acts that have entered into force in a dispute between the same parties, on the same subject and on the same grounds.

Refusal of judicial protection of violated rights is considered illegal.

The judge issues a reasoned ruling on the refusal to accept the statement of claim. If the acceptance of the statement of claim was refused due to the fact that the case is not subject to consideration and resolution in civil proceedings, the definition indicates which authority the person concerned should apply to.

The refusal to accept the application prevents the person from filing a lawsuit against the same defendant again, on the same subject and on the same grounds.

In accordance with Article 156 of the CPC, the defendant has the right to file a counterclaim against the plaintiff for joint consideration with the original claim before the end of the consideration of the case on the merits. A counterclaim is filed in accordance with the general rules on filing a claim.

The judge issues a ruling on the acceptance of a counterclaim.

A counterclaim that does not meet the conditions for its acceptance provided for in part one of this article is subject to return. Paragraph 8 of the Supreme Court's Regulatory Resolution No. 21 of December 13, 2001 "On the preparation of Civil cases for trial" clarified that the judge 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.

If the content of this statement does not comply with the requirements specified in Article 157 of the CPC, the judge, on the basis of Article 154 of the CPC, issues a ruling on the return of the counter-statement.

Leaving claims without consideration

Leaving claims without consideration is the termination of proceedings in a case without making a decision, which does not prevent the possibility of a second appeal to the court in an identical case.

Article 249 of the CPC provides an exhaustive list of grounds for leaving an application without consideration.

Thus, by the ruling of the Zharkainsky district Court of the Akmola region, the claim of Gaydidei D.V. to Andreev E.M. for recovery of the debt amount was left without consideration on the basis of subparagraph 8) of Article 249 of the CPC, that is, due to the fact that the person in whose interests the case was initiated did not support the stated claim.

As can be seen from the contents of the judicial act, Gaididei D.V. filed a claim for debt collection in the amount of 100,000 tenge from the defendant Andreev E.M.

During the consideration of the case, the representative of the plaintiff, B.K. Pshenbayeva, submitted to the court a statement stating that she did not support the stated claim, which for the court was the basis for leaving the application without consideration under subparagraph 8) of Article 249 of the CPC.

Meanwhile, the court did not take into account that the legislator connects the procedure for leaving an application on the specified basis only with applications from authorized bodies, officials and citizens (guardianship and guardianship authorities, consumer protection authorities, the prosecutor, etc.) who have appealed to the court to protect the rights, freedoms and legitimate interests of other persons (minors, consumers etc.) (Articles 55, 56 of the CPC)

Consequently, only if the person in whose interests the case was initiated did not support the stated claim, the application could be dismissed without consideration on the basis of subparagraph 8) of Article 249 of the CPC.

No such grounds have been established for the above-mentioned example.

There are also reasonable doubts about the legality of the ruling of the judge of the Naurzumsky District Court of Kostanay region, who dismissed, under subparagraph 8) of Article 249 of the CPC, the statement of claim by R. Shigapova to M. Sharapieva for recovery of the debt amount in the amount of 13,100 tenge, whereas in his statement the plaintiff asked to return the statement, therefore, when issuing the ruling, the court (and not the judge) should have been guided by subparagraph 9) of Article 249 of the CPC.

The requirements for the quality of the content and language of judicial acts are becoming particularly relevant in connection with the publication of court decisions in full in information and legal databases and on official websites of courts on the Internet.

The placement of judicial acts on the websites of courts should become a stimulating factor for a more responsible approach of judges to the execution of judicial acts. When specifying the laws and other normative acts that guided the court in making the decision, the full name of the law and other act, article, paragraph, sub-paragraph should be given.

When studying judicial acts of the analyzed category, such violations can be traced in almost all courts of the republic. Thus, the reference of an integral part of the legal norm is incorrectly indicated in the definition of the Zharkainsky District Court of the Akmola region in the civil case on the claim of V.N. Surkova to V.P. Kazak for debt recovery, where the court, ignoring V.N. Surkova's application, indicates paragraph 9 of Article 249 of the CPC, whereas this norm consists of articles and sub-paragraphs, it was necessary to specify subparagraph 9) of Article 249 of the CPC.

These violations occur in the judicial acts of almost all courts and cities of republican significance, In addition, contrary to the requirements of subparagraph 9) of Article 249 of the CPC, there are facts where the courts do not leave an application without consideration, but a civil case.

An example of this is the civil case considered by the Kobdinsky district court of the Aktobe region, on the claim of Balimova L.K. to Polyakova N.V. for debt collection.

By the ruling of this court, it was not Balimova L.K.'s statement of claim that was left without consideration in accordance with subparagraph 9) of Article 249 of the CPC, but a civil case.

Termination of the proceedings

Termination of proceedings in a case means the termination of judicial proceedings without a decision in cases where a person does not have the right to go to court or voluntarily settle a dispute after initiating a civil case, or due to circumstances beyond the control of the court and the participants in the process, which preclude the possibility of a second appeal to court in an identical case.

Securing a claim

In accordance with part 1 of Article 158 of the CPC, measures to secure a claim are taken by the court at the request of the persons participating in the case. Securing a claim is allowed in any situation where failure to take such measures may make it difficult or impossible to enforce a court decision.

The Procedural law provides for the procedure for considering an application for securing a claim. Thus, according to Article 160 of the CPC, an application for securing a claim is resolved by a judge on the day it is received by the court without notifying the defendant and other persons participating in the case, the parties to the arbitration or arbitration proceedings. Based on the results of consideration of the application for securing the claim, the judge issues a ruling.

An application for securing a claim filed with a court with a statement of claim is considered by the court without notifying the defendant and other persons participating in the case, the parties to the arbitration or arbitration proceedings simultaneously with the initiation of a civil case.

Paragraph 5 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated January 12, 2009 No. 2 "On the adoption of interim measures in civil cases" clarifies that an application for interim measures may be filed in any situation of the case: during the preparation of the case for trial, at a court hearing, after the court pronounces a judicial act, but before his appeals in accordance with the procedure established by Article 236 of the CPC for compulsory execution.

An example of this is the civil case on the claim of Stepanova G.S. to Kapustina R.S., Valova N.I. for the recovery of a sum of money, considered by the Zyryanovsky District Court of the East Kazakhstan region.

As noted above, in accordance with paragraph 5 of Article 221 of the CPC, if the defendant recognizes the claim and the court accepts this recognition, the reasoning part of the decision may consist only of an indication of this procedural action.

In this case, the examination of evidence in the case may not be carried out. However, the court did not take advantage of the opportunity not to state in full the reasoning part of the decision.

In this case, after examining all the evidence in the case, the court issued a fully reasoned decision. Sometimes the courts generally ignore the recognition of the defendant's claims against him and do not discuss the possibility or impossibility of accepting the recognition of the claim.

Judicial practice shows that in most court cases, a loan agreement between individuals was more often issued with a receipt. From the point of view of the law, it does not matter how the lender and the borrower formalize the relationship - a loan agreement or a receipt, the main thing is that this document, drawn up in simple written form, certifies the transfer of a sum of money by the lender to the borrower. The details of such a "document" are: surname, first name, patronymic of the parties, their passport data, place of residence; the amount of the sum of money, the date of its receipt by the debtor, the term of the loan, interest for the use of funds and interest for late repayment of the debt (if the parties have agreed on this), the signature of the borrower with a transcript.

However, it is possible to repay the debt on a receipt in court, even if the "debt document" only indicates the amount of the debt, who transferred the funds and the borrower's signature to whom.

Failure to specify the loan term, interest, and issue date does not invalidate the document. The issue of notarization of the receipt is decided by the parties themselves, while it should be remembered that the notarized form of the receipt does not give it any greater legal force and does not make it more weighty evidence in court.

The decision of the Sandyktau district Court of the Akmola region denied the satisfaction of the claims of Kabylkanov K.P. to Andrusenko L.P. for the recovery of the debt in the amount of 134,712 tenge due to the lack of evidence by the plaintiff of the stated claims.

In support of the claim, the plaintiff stated that the defendant had purchased food and other consumer goods from his store from 2012 to 2013.

The bulk of the goods were purchased by her, with his consent, in debt, which she promised to repay in a timely manner, but the defendant did not fulfill his obligations to repay the debt. The defendant did not admit the claim, explaining that she had indeed purchased goods in debt, which she had fully repaid.

According to Article 65 of the CPC, each party must prove the circumstances to which it refers as the grounds for its claims and objections.

By virtue of Article 15 of the CPC, civil proceedings are conducted on the basis of competition and equality of the parties. The parties enjoy equal procedural rights and bear equal procedural responsibilities.

The court is completely exempt from collecting evidence on its own initiative in order to establish the factual circumstances of the case. With

The UD bases the procedural decision only on those evidences, the participation in the study of which was provided on an equal basis by each of the parties. In rejecting the claim, the court, guided by the above-mentioned rules of procedural law, legitimately assumed that the plaintiff had not proved that the parties had concluded a loan agreement in an appropriate form. At the same time, the court found the notebook entries submitted by the plaintiff's side to be inadmissible evidence (there are no dates of receipt of the goods, the defendant's signature), since the conclusions about the existence of circumstances relevant to the case are called into question.

Failure by the defendant to provide evidence of the fulfillment of the obligation is the basis for the satisfaction of the claim.

Plaintiff Kanapyanova M.K. filed a lawsuit against Sharip Zh.S. for recovery of the debt amount in the amount of 150,000 tenge, stating that according to a receipt dated November 12, 2013, she transferred the amount of 150,000 tenge to the defendant, which the latter undertook to repay by December 05, 2013, but within the specified period the loan amount I did not return it.

The defendant did not admit the claim at the hearing and explained that he had not received this amount, the plaintiff forced him to write a receipt.

In satisfying the claims in full, the court proceeded from the following.

Upon investigation of the circumstances of the case, it was established that on November 12, 2013, a loan agreement was concluded between the parties, under the terms of which the plaintiff transferred an amount of 150,000 tenge to the defendant, the defendant, in turn, undertook to return the loan item by December 05, 2013.

According to paragraph 2 of Article 716 of the Civil Code, a loan agreement is recognized as concluded in proper written form also if there is a receipt from the borrower or other document certifying the transfer of a certain amount or a certain number of things to him by the lender.

By virtue of Article 272 of the Civil Code, an 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 paragraph 1 of Article 277 of the Civil Code, if an obligation provides for or allows determining the day of its fulfillment or the time period during which it must be fulfilled, the obligation is subject to fulfillment on that day or, accordingly, at any time within such a period. The performance of the obligation is certified in accordance with the procedure established by Article 290 of the Civil Code.

According to part 2 of Article 68 of the CPC, the circumstances of the case, which by law must be confirmed by certain evidence, cannot be confirmed by any other evidence.

The defendant has not provided evidence of the fulfillment of the obligations stipulated in Article 290 of the Civil Code. In addition, according to paragraph 2 of Article 290 of the Civil Code, finding a debt document with the plaintiff is also evidence of the defendant's failure to fulfill the obligation under the receipt.

The presence of a debt document from the lender, which was not recognized as invalid in accordance with the established procedure, reasonably allowed the court to conclude that the defendant had not provided evidence from the standpoint of Article 65 of the CPC of the full fulfillment of the obligation to transfer money to the creditor. The court correctly established that, in violation of obligations, the defendant did not repay the full borrowed amount.

The plaintiff missed the limitation period, the application of which was announced by the defendant before the decision on the case.

Interesting from the point of view of applying the provisions of Chapter 7 of the Civil Code, which establishes the rules for calculating time limits, is a civil case considered by the district court No. 2 of the Kazybekbi district of Karaganda.

Plaintiff Ziyazitdinov F.N. filed a lawsuit against Ilchenko A.A. for debt collection in the amount of 7,500,000 tenge and interest for using other people's funds in the amount of 1,740,625 tenge, citing improper fulfillment by the defendant of obligations under loan agreements dated July 23, 2009.

It follows from the case file that on July 23, 2009, two notarized loan agreements were concluded between the parties for a total amount of 7,500,000 tenge, under the terms of which the defendant received the loan amount from the plaintiff in the total amount of 7,500,000 tenge secured by two apartments belonging to her, with the obligation to repay by December 31, 2009.

Having applied to the court with the present claim, Ziyazitdinov F.N. asked to recover the loan amount with interest from the defendant.

In accordance with paragraph 2 of Article 716 of the Civil Code, a loan agreement is recognized as valid if there is a receipt from the borrower certifying the transfer of a certain amount to him.

Since, in accordance with Article 716 of the Civil Code, the written form of the loan agreement has been observed, according to paragraph 1 of Article 722 of the Civil Code, the borrower is obliged to repay the loan item in accordance with the procedure and terms stipulated by the agreement. However, before the court of first instance rendered a decision on the merits of the dispute, the defendant filed a motion to apply the limitation period.

The court of first instance refused to apply the limitation period, with reference to paragraph 4 of Article 386 of the Civil Code, and partially satisfied the plaintiff's claims, collecting from the defendant the amount of debt in the amount of 7,500,000 tenge, a fine of 200,000 tenge, arguing that the expiration of the contract does not release the parties from responsibility for its violation, which took place before the expiration of this period. The appellate judicial board disagreed with such conclusions, pointing out that the court had incorrectly applied the norms stipulated in paragraph 4 of Article 386 of the Civil Code.

It follows from the meaning of this rule that we are talking about liability for violation of the terms of the contract, which may occur after the expiration of the contract (for example, in the form of payment of penalties, damages, etc.).

According to Article 177, paragraph 1 of Article 178 of the Civil Code, the limitation period is the period of time during which a claim arising from violations of a person's right or legally protected interest can be satisfied.

The limitation periods and the procedure for calculating them are provided for by law and cannot be changed by agreement of the parties.

The total limitation period is set at three years.

In accordance with paragraphs 2, 3 of Article 179, paragraph 2 of Article 180 of the Civil Code, the limitation period is applied by the court only upon the application of the party to the dispute made before the court's decision. The expiration of the limitation period before the filing of a claim is the basis for the court's decision to dismiss the claim.

With the expiration of the limitation period for the main claim, the limitation period also expires for additional claims (for the recovery of penalties, etc.). For obligations with a certain period of performance, the limitation period begins at the end of the period of performance.

As follows from the case file, the defendant filed a motion for the application of the limitation period before the court's decision. The deadline for fulfilling obligations under the loan agreements dated July 23, 2009 was set until December 31, 2009. At the end of this period, the statute of limitations begins to expire and three years expired on December 31, 2012. This lawsuit was filed on February 4, 2014, more than one year after the statute of limitations expired.

Thus, the expiration of the limitation period before the filing of the claim was the basis for the court's decision to dismiss the claim. The rules of limitation are mandatory. The plaintiff did not raise the issue of restoring the missed limitation period in the court of first instance. There are also no circumstances established in the case for suspending or interrupting the limitation period.

In connection with the above, the court's decision regarding the satisfaction of the claim for the recovery of the debt amount of 7,500,000 tenge, penalties in the amount of 200,000 tenge were canceled with the issuance of a new decision to dismiss the claim in this part.

Reduction of the penalty amount

In accordance with Article 297 of the Civil Code, if the penalty to be paid (fine, fine) is excessively large in comparison with the creditor's losses, the court has the right to reduce the penalty (fine, fine), taking into account the degree of fulfillment of the obligation by the debtor and the interests of the debtor and the creditor that deserve attention.

Thus, considering the issue of reducing the amount of the penalty, the court must first determine to what extent the amount of the penalty presented for collection and payable is greater than the losses caused to the creditor by non-fulfillment or improper fulfillment of obligations by the debtor.

During the trial, it is necessary to take into account the fact that the norms of Article 293 of the Civil Code establish the creditor's right not to prove that he suffered losses upon a claim for payment of a penalty. However, the norms of Article 297 of the Civil Code, which establish the court's right to reduce the amount of the penalty, at the same time determine the court's obligation to establish the existence of losses of the creditor in relation to the amount of the penalty presented by the creditor.

If the court finds that the plaintiff has no losses or their amount does not significantly exceed the amount of the penalty to be paid, the court has no right to consider reducing the penalty.

Only after the court determines that the penalty to be paid is excessively large in comparison with the creditor's losses, it must find out the extent to which the debtor has fulfilled the obligation and the interests of the debtor and the creditor that deserve attention.

When resolving the issue of reducing the amount of the penalty, the courts sometimes motivate the conclusions about reducing the penalty by the creditor's inaction, which consists in the failure to take effective measures to enforce the amount of the principal debt.

This position of the court is controversial, since applying to the court for protection of a violated right is the creditor's procedural right and not seeking judicial protection cannot be attributed to the creditor. According to paragraph 1 of Article 8 of the Civil Code, citizens and legal entities, at their discretion, dispose of their rights, including the right to their protection. In addition, a study of the cases showed that, as a rule, creditors do not consider themselves inactive, referring to the fact that they took measures to settle the dispute out of court in order to avoid accrual of penalties and reimbursement of court costs. Only after a long period of non-fulfillment by the debtor of contractual obligations, creditors are forced to go to court.

In accordance with the requirements of Article 16 of the CPC, the court must assess these circumstances in conjunction with other evidence collected in the case.

If the court finds that the creditor took measures to fulfill the debtor's obligations (for example, restructured the debt, negotiated with the debtor to find sources to repay the debt, etc.), and the debtor was passive, then the creditor has the right to receive a penalty in full, since a penalty is primarily a security that gives the creditor confidence that after all actions he will apply sanctions to the debtor and will receive

full compensation through a penalty. If he does not take any measures and tries to enrich himself, then the court, having established these circumstances, has the right to decide on the reduction of the penalty.

In accordance with Article 65 of the CPC, each party must prove the circumstances to which it refers as the grounds for its claims and objections. Therefore, in order for the court to assess and take into account the degree of fulfillment of the obligation by the debtor and the interests of the debtor and the creditor that deserve attention, each of the parties is obliged to prove this in court. The defendant's objections about the problems of fulfilling his obligations due to non-fulfillment of obligations by counterparties; difficult financial situation; the seizure of money or other property of the defendant, etc., by themselves cannot serve as a basis for reducing the penalty.

Unjustified refusal to satisfy claims for the recovery of a penalty, whereas according to the rules of Article 297 of the Civil Code, the courts have the right only to reduce its amount.

So, Turabaev A.S. appealed to the court with a claim to Benediks A.A. for recovery of the amount of debt under the loan agreement, stating in support of the claim that on October 7, 2011, a loan agreement was concluded between the parties, certified by a private notary G.P. Obedkov. Under the terms of the agreement, the defendant borrowed money from the plaintiff in the amount of 1,000,000 tenge for up to 31 December 2011. By the deadline specified in the loan agreement, the defendant has not returned the money, and is avoiding refunding the amount of money. Benediks AA. violated his obligations to return the money within the prescribed period and, in accordance with Article 293 of the Civil Code, must pay a penalty in the amount of 116,802 tenge.

Benediks A., not recognizing the claims of Turabaev A.S., filed a counterclaim for invalidation of the loan agreement.

By the decision of the Temirtau city Court, Turabaev A.S.'s claim was partially satisfied, the amount of debt in the amount of 1,000,000 tenge was recovered from Benediks A.A. in favor of Turabaev A.S., the rest of the claim was denied. The counterclaim of Benedicks A.A. was denied. The judicial act was appealed by the parties on appeal.

By changing the decision of the court of first instance, and partially satisfying the claim of Turabaev A. regarding the recovery of a penalty in the amount of 20,000 tenge, the appellate instance concluded that the court of first instance incorrectly applied the norms of substantive law, gave an inadequate assessment of the circumstances investigated.

According to the notarized agreement, the borrower Benediks A.S. borrowed money from the lender Turabaev A.S. in the amount of 1,000,000 tenge for a period up to December 31, 2011. In accordance with paragraph 2 of the Agreement, the refund of the borrowed amount of money must be made in Karaganda, paragraph 5 of the Agreement states that it comes into force from the moment it is signed by the parties. The signing of this Agreement by the borrower is a confirmation of the legal fact that the borrower has received the entire loan amount from the lender.

According to Article 272 of the Civil Code, the obligation must be performed properly in accordance with the terms of the obligation and the requirements of the law. A violation of an obligation in accordance with Article 349 of the Civil Code is understood as its non-fulfillment or improper fulfillment. Due to the defendant's improper fulfillment of obligations under the contract, a delay has occurred. The plaintiff filed a claim for the recovery of a legal penalty under Article 353 of the Civil Code, and not a contractual one, as the court of first instance mistakenly considered.

In such circumstances, the board considered it unjustified to refuse to collect the amount of the penalty in full, since civil legislation does not provide for exemption from liability in the form of payment of the penalty in general, it only allows to reduce its amount (Article 297 of the Civil Code).

At the same time, having established that the defendant's obligations to repay the loan item have not been fulfilled for a long time, and no actions have been taken by the plaintiff to prevent the amount of losses caused by non-fulfillment or improper fulfillment of the contract, and no measures have been taken to reduce them, the judicial board, guided by paragraph 1 of Article 364, Article 297 of the Civil Code, Taking into account the degree of fulfillment of the obligation by the debtor and the interests of the debtor and the creditor that deserve attention, the amount of the penalty was reduced to 20,000 tenge.

The recognition of the loan agreement as invalid is formal and does not entail the invalidity of the loan agreement.

Participants in civil turnover are often inclined to abuse the institution of invalidity of transactions in order to gain early and unjustified wealth.

The courts must resist attempts to abuse the law and use judicial procedures to achieve unworthy goals.

Judicial practice in the case category under study should be aimed at the stability of civil turnover.

Since all forms of business activity of participants in civil turnover manifest themselves through transactions, the current legislation pays special attention to their legal purity.

Judicial practice should proceed from the letter of the procedural law and the spirit of substantive law.

If a transaction does not comply with the law, or any of its features do not comply with the provision established by law, this transaction cannot serve as a basis for the emergence or termination of civil rights and obligations and is declared invalid.

In general, any transaction that does not comply with the requirements of the law or other legal acts is invalid.

Invalidity is a purely legal concept, the meaning of which is that the law does not recognize the legal force of certain actions, acts, documents.

For example, A.A. Bondar filed a lawsuit against T.I. Sergeev, stating that under the loan agreement concluded between him and the defendant on December 23, 2013, he transferred money in the amount of 1,000,000 tenge to the defendant. The agreement defines the repayment period of the loan, until February 23, 2014. The defendant did not fulfill his obligations to repay the amount of the debt, citing lack of money.

In a counterclaim to Bondar A.A. and notary Sarsembekova S.K., Sergeev T.I. asked to declare the loan agreement invalid on the basis of paragraph 9 of Article 159 of the Civil Code, indicating that the contract was signed by him under threat of physical violence, due to fear for the life and health of people close to him, as well as due to the fact that that when notarizing the loan agreement, he did not have an identity card with him, he only had a copy, and the identity card itself was in the period from March 02, 2013 to August 21, 2014 in the Department of Internal Affairs of the Saryarka district of Astana.

By the decision of the Almaty District Court of Astana dated September 09, 2014, the claim of Bondar A.A. for debt recovery was denied, the counterclaims of Sergeev T.I. were satisfied.

Overturning the decision of the court of first instance, the appellate judicial board issued a new decision to satisfy the claim of Bondar A.A. with the refusal to satisfy the counterclaim of Sergeev T.I., pointing out the following:

From the contents of paragraph 1 of the loan agreement, certified on December 23, 2013 by a private notary in Astana, Sarsembekova S.K., it follows that Sergeev T.I. borrowed money from Bondar A. in the amount of 1,000,000 tenge, for a period up to and including February 23, 2014.

Paragraph 8 of the agreement states that when signing the agreement, the parties confirm that they are not in a state of narcotic, toxic, alcoholic intoxication, for health reasons they can exercise and protect their rights and fulfill their duties, and also confirm that they are not under the influence of delusion, deception, violence, threats, malicious agreements or a combination of difficult circumstances..

There are no circumstances that force you to conclude a contract on extremely unfavorable terms. The parties have signed the specified loan agreement.

In accordance with paragraph 1 of Article 392 of the Civil Code, when interpreting the terms of a contract, the court takes into account the literal meaning of the words and expressions contained therein.

The indication in the loan agreement that Sergeev T.I. borrowed an amount of 1,000,000 tenge confirms that the money was received by the borrower before signing the loan agreement. In the court of appeal, the defendant confirmed that he voluntarily went to the notary's office and signed the loan agreement with his own hand.

The court was critical of the defendant T.I. Sergeev's arguments that he did not take money for a loan, this money was an investment in a common business, and he was forced to sign a loan agreement under threat of physical violence, and regarded them as a desire to evade responsibility for fulfilling obligations under the loan agreement.

Evidence of actions to organize a joint business, such as registration as an individual entrepreneur, evidence of the purchase of necessary special equipment for a massage parlor, was not presented by the defendant to either the court of first instance or the court of appeal.

There is no evidence that the plaintiff Bondar A.A. committed violence against the defendant Sergeev T.I., or there is a threat of physical violence, the defendant has not presented to the court. Neither before nor after the conclusion of the loan agreement, T.I. Sergeev did not apply to law enforcement agencies for protection of life and health.

In this regard, the judicial board legitimately recognized as unfounded the defendant's arguments that the loan agreement was concluded under threat of physical violence and are not grounds for declaring the loan agreement invalid under paragraph 9 of Article 159 of the Civil Code.

At the same time, the plaintiff Bondar A.A. and the defendant, notary Sarsembekova S.K., did not provide evidence that when concluding the disputed loan agreement, the identity of the applicant Sergeev T.I. was established by identity documents.

From the message of the Deputy head of the Department of Internal Affairs of the Saryarka district of Astana, Orazova Zh.S. dated August 22, 2014, it follows that identity card No. 033974428, issued on September 17, 2012 by the Ministry of Internal Affairs of the Republic of Kazakhstan, was kept in the criminal case No. 13711303101585, initiated on March 02, 2013 under art. 257 part 2 of paragraph "a" of the Criminal Code of the Republic of Kazakhstan and discontinued on August 20, 2013 under art. 37, part 1, paragraphs 12-67, Part 1 of the Criminal Code of the Republic of Kazakhstan. During the period from March 02, 2013 to August 21, 2014, Sergeev T.I.'s identity card was in the materials of the criminal case, as it was not claimed by Sergeev T.I.(L.D. 11, volume of case No. 2).

This indicates that T.I. Sergeev's identity card was missing at the conclusion of the loan agreement on December 23, 2013, and the notary did not identify the applicant using his identity card, which violated the requirements of Article 42 of the Law of the Republic of Kazakhstan "On Notaries".

In accordance with Articles 42 of the Law of the Republic of Kazakhstan "On Notaries", a notary or an official, when performing a notarial act, establishes the identity of a citizen who applied for a notarial act, his representative or a representative of a legal entity. Identification must be carried out on the basis of an identity card or passport of a citizen who applied for a notarial act.

However, the judicial board considered this circumstance to be formal in relation to the loan agreement concluded between the parties, which is not a reason for invalidating the loan agreement, since the fact of the loan itself took place, the loan agreement was signed by the parties, and besides, it is valid even in the absence of notarization, made in simple written form.

             The basis for considering the case in absentia

             One of the grounds for considering the case in absentia is the plaintiff's consent when the defendant fails to appear on the initial call.

In accordance with part 1 of Article 260 of the CPC, if the defendant fails to appear at the court session, is duly notified of the time and place of the meeting, has not informed about the valid reasons for non-appearance and has not asked for consideration of the case in his absence, the case may be considered in absentia, if the plaintiff does not object to this.

The cited norm of the procedural law indicates the existence of several grounds on which it is possible to consider the case in absentia. One of these grounds is the plaintiff's consent when the defendant fails to appear on the initial call.

At the same time, there are cases when cases are considered in absentia without the consent of the plaintiffs.

Iskandarov R.K. appealed to the court with a claim to Vysotskaya T.I. for debt collection in the amount of 750,000 tenge on a written receipt.

Due to the defendant's failure to fulfill obligations to repay the debt, the plaintiff requested to recover the specified amount, as well as his expenses for paying for the assistance of a representative in court in the amount of 55,000 tenge.

The parties did not come to court, due to the unknown reasons for their non-appearance, the court of first instance, with reference to part 4 of Article 187 of the CPC, considered the case without their participation in absentia. By an absentee decision of the Karasai district Court dated June 24, 2014, the claim of Iskandarov R.K. was partially satisfied: from the defendant Vysotskaya T.I. in favor of the plaintiff Iskandarov R.K., the loan amount in the amount of 360,000 tenge, representative expenses – 5,000 tenge, refund of state duty in the amount of 3,600 tenge was collected.

The recovery of the loan amount in the amount of 390,000 tenge was refused. Partial satisfaction of the claims is justified by the terms of the agreement reached between the parties, under which the borrower has committed to repay the debt of 60,000 tenge per month.

In this connection, the court of first instance collected the amount of the debt from the time of the obligation to the date of the decision (the so-called current debt).

By the ruling of the Appellate Judicial Board for Civil and Administrative Cases of the Almaty Regional Court dated September 16, 2014, the said absentee decision on the appeal of the plaintiff, who disagreed with the partial satisfaction of the claim, was canceled on the grounds that the plaintiff's statement on the consideration of the case in absentia was missing in the case file, as well as due to the incorrect application of part 4 of Article 187 The CPC, which does not provide for consideration of the case in absentia.

The case has been accepted for consideration by the court of appeal. Based on the results of the review, the board, taking into account the provisions of paragraph 3 of Article 722 of the Civil Code, according to which if the contract provides for the return of the loan item in parts (in installments), then if the borrower violates the deadline set for the return of the next part of the loan item, the lender has the right to demand early repayment of the remaining part of the loan item along with the remuneration due, satisfied the claim is in full.

The amount of debt in the amount of 750,000 tenge, the refund of state duty in the amount of 7,500 tenge and representative expenses, taking into account the claims specified by the plaintiff in the amount of 50,000 tenge, were recovered from Vysotskaya T.I. in favor of Iskandarov R.K. The legality of the cancellation of the court's decision in absentia by the appellate instance is questionable due to the following circumstances.

Thus, in accordance with the provisions of parts 1, 3 of Article 260 of the CPC, in the event of a defendant's failure to appear at a court hearing, who was duly notified of the time and place of the meeting, did not inform about the valid reasons for non-appearance and did not ask for consideration of the case in his absence, the case may be considered in absentia, if there is no objection to this. the plaintiff.

If the plaintiff who appeared at the court session does not agree to consider the case in absentia in the absence of the defendant, the court postpones the hearing and sends the defendant a notice of the time and place of the new court session.

In case of repeated failure of the duly notified defendant, the court shall consider the case in absentia. The above provisions of the procedural law indicate the need to obtain the plaintiff's consent to consider the case in absentia if the defendant fails to appear on the initial call.

In case of repeated non-appearance at the court session of the defendant, who was duly notified of the time and place of the meeting, who did not inform about the valid reasons for non-appearance and did not ask for consideration of the case in his absence, such consent of the plaintiff is not required.

It follows from the electronic card in this case that the defendant was duly summoned to court three times on June 10, 2014, June 20, 2014, and June 24, 2014, but did not appear in court without informing the court of the reasons for his absence, and did not ask the court to consider the case in his absence. In these circumstances, the court of first instance, according to the rules of part 4 of Article 187 of the CPC, reasonably recognized that the defendant was deliberately delaying the proceedings and considered the claim in absentia.

It should be noted that the defendant also did not appear at the court hearings in the appellate instance. The repeated failure of the defendant, who was notified of the hearing, to appear at a court hearing by virtue of the provisions of part 4 of Article 187 of the CPC is considered as evasion by the defendant from fulfilling his procedural duties, therefore, consideration of the case in absentia is regarded as a kind of sanction against the failed defendant.

If there was a written receipt from the borrower certifying the transfer of the amount by the lender, and also taking into account the requirements of Articles 272, 273, paragraph 3 of Article 722 of the Civil Code, there were legal grounds for correcting the court decision by changing it.

 

If the court determines that everything received under the obligations of one of the spouses was used for the needs of the family, the spouses are jointly and severally liable.

Abanovich A.I. filed a lawsuit against Abanovich N.A. and Belobrov V.P. to recover the amount of the debt, arguing that on September 16, 2006, the defendants borrowed money from him in the amount of 55,000 US dollars equivalent to 7,182,000 tenge for the purchase of an apartment with the obligation to repay it by 1 July 2012.

However, the debt was not returned by the specified date, and therefore he requested that his claim be satisfied and that the amount of the debt in the amount of KZT 7,182,000 be collected from the defendants in his favor. The defendant Abanovich N.A. acknowledged the claim and asked to satisfy it.

The defendant V.P. Belobrov did not admit the claim, asked to dismiss the claim and filed a counterclaim against A.I. Abanovich and N.A. Abanovich for invalidation of the receipt, stating that A.I. Abanovich had not borrowed money. By the decision of the Zhetysu District Court of Almaty dated March 28, 2013, the claim of Abanovich A.I. and the counterclaim of Belobrov V.P. was denied. By the decision of the appellate judicial board dated May 31, 2013, the court's decision was changed, regarding the refusal to satisfy the claim of A.I. Abanovich. The debt collection was canceled with the adoption of a new decision in this part on the recovery in solidarity with Abanovich N.A. and Belobrova V.P. in favor of Abanovich A.I. 7,182,000 tenge, court costs were collected in a shared manner.

The rest of the solution remains unchanged. By the decision of the Cassation judicial board of the Almaty City Court dated September 20, 2013, the decision of the appellate instance was changed, the decision of the court of first instance was restored.

The Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan has amended the decision of the cassation instance, while upholding the decision of the appellate instance by virtue of the following. Rejecting the claim of Abanovich A.I., the court of first instance pointed out that the existence of Belobrov VP's obligations to return funds to the plaintiff has not been proven.

The Court of cassation agreed with these conclusions. However, these conclusions did not correspond to the actual circumstances of the case. It follows from Article 77 of the CPC that each piece of evidence is subject to assessment in terms of relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve a civil case.

The totality of evidence is considered sufficient to resolve a civil case if there is acceptable and reliable evidence relevant to the case that indisputably establishes the truth about each and every one of the circumstances to be proved, or has not been refuted by the party.

The Court of Appeal, having examined all the evidence presented by the parties, correctly established that the plaintiff's funds, earned from the sale of his apartment under the purchase agreement dated September 16, 2006 in the amount of KZT 7,182,000, were loaned to N.A. Abanovich, which was confirmed by a receipt dated September 16, 2006.

The use of this money for the purchase of an apartment, a car, and furniture for the defendants' family is confirmed by the totality of evidence examined in court. These circumstances were not disputed by the defendants. At the hearing of the appellate instance, the defendant V.P. Belobrov, regarding the origin of the money for the above purchases, explained that he did not attach importance to what funds they were purchased with.

According to paragraph 2 of Article 43 of the Law "On Marriage and Family", in force at the time of the dissolution of the marriage between the spouses, foreclosure is levied on the common property of the spouses for the common obligations of the spouses, as well as for the obligations of one of the spouses, if the court finds that everything received under the obligations of one of the spouses was used for the needs of the family.

By the decision of the Zhetysu District Court of Almaty on April 16, 2012, the plaintiff Abanovich A.I. transferred the disputed money to his daughter Abanovich N.A. to purchase an apartment and a car, which were used for the needs of the family during the marriage with Belobrov V.P., therefore, these funds are recognized as the common joint property of the spouses.

In accordance with Part 2 of Article 71 of the CPC, the circumstances established by a court decision that has entered into force in a civil case are binding on the court and are not proven again in other civil cases involving the same persons.

Since the funds borrowed from the plaintiff were used for the needs of the family during the period of the defendants' marriage, they are a common debt of the spouses and were subject to recovery in solidarity with the defendants.

 

The loan agreement is recognized as concluded in proper written form only upon receipt of the borrower certifying the transfer of a certain amount by the lender.

By the decision of the court No. 2 of the Almaly district of Almaty dated June 14, 2012, the claim of Zhumagulov A.B. to Musrepov A.R. for debt collection under the loan agreement was satisfied: the debt in the amount of 14,005,000 tenge and the refund of the state duty in the amount of 140,005 tenge were recovered from Musrepov A.R. The counterclaims of Musrepov A.R. Zhumagulov A.B., Sengirbaeva S.U., a third party, notary Umbetalieva M.M., Petropavlovsk Distillery LLP, regarding the recognition of the loan agreement as invalid, were refused.

By an additional decision of the Almaly district court No. 2 of Almaty dated June 28, 2012, representative expenses in the amount of 1,400,000 tenge were recovered from Musrepov A.R.

The courts of appeal and cassation agreed with the conclusions of the court of first instance.

The Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan has changed the judicial acts of lower courts due to the incorrect definition of the range of circumstances relevant to the case and the incorrect application of substantive law.

Thus, it followed from the case file that on May 05, 2010, a notarized loan agreement was concluded between Zhumagulov A.B. and Musrepov A.R., according to which the defendant received from the plaintiff the amount of 14,005,000 tenge, for a period until August 05, 2011. The defendant did not repay the debt within the time period specified in the contract.

The loan agreement does not contain a suspensive condition for the transfer of the loan item in the future or in installments, nor does the agreement provide that the transfer of money will be documented in other documents. Based on these terms of the contract, the courts concluded that the plaintiff's claims were justified.

Meanwhile, the requirements of paragraph 1 of Article 724 of the Civil Code have been ignored, according to which the borrower has the right to challenge the loan agreement, proving that the loan object (money or things) was not actually received by him from the lender or received in a smaller amount or quantity than specified in the agreement.

In court, the plaintiff argued that the contract was fake, imaginary, and in fact was a guarantee that the defendant would fulfill his obligations under other legal relationships. The defendant himself also explained that he had not received any money from the plaintiff.

These statements of the defendant in court were confirmed by the testimony of a notary, who explained that during the notarization of the disputed contract, she found out that the money was not transferred by the lender either before signing the contract or during its signing. Having explained that after the transfer of money to the parties, it is necessary to draw up a receipt for the receipt of money by the borrower, the notary notarized the transaction.

The plaintiff's claims that the money was transferred to the defendant after the conclusion of the loan agreement are not supported by relevant evidence, therefore they are untenable, since by the meaning and content of paragraph 2 of Article 716 of the Civil Code, the loan agreement is recognized as concluded in proper written form only if there is a bond, a receipt from the borrower or other document certifying the transfer of a certain amount by the lender or a certain number of things.

Thus, the law contains a direct indication of the need for a receipt for receiving money in order to recognize the contract as concluded. All the above circumstances have been established by the court and have not been refuted by the plaintiff. According to the requirements of Article 65 of the CPC, the burden of proof is on the parties.

A disputed loan agreement between the parties cannot be recognized as concluded due to the lack of transfer of borrowed money and has no legal force, since in accordance with Article 717 of the Civil Code, the loan agreement is considered concluded from the moment of transfer of money or things, unless otherwise provided by this Code or the agreement of the parties.

At the same time, the supervisory board agreed with the court's decision regarding the refusal to satisfy the counterclaim for invalidation of the loan agreement, since an outstanding and legally unenforceable transaction cannot be declared invalid.

 

Regulatory legal framework

The following regulatory legal acts were applied when considering cases by the courts:

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 - CPC),

The Law of the Republic of Kazakhstan "On Currency Regulation and Currency Control" and other regulatory legal acts, depending on the subject of the dispute.

Along with them, the courts applied: regulatory rulings of the Supreme Court of the Republic of Kazakhstan (hereinafter referred to as regulatory rulings of the Supreme Court)

– No. 5 of July 11, 2003 "On the court decision", No. 9 of December 25, 2006 "On the application by courts of legislation on court costs in civil cases".

 

 

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