Establishing facts of legal importance

  Establishment of facts of legal significance specified in subitems 1)-9) of part 2 of Article 305 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC RK) in this case, cases of establishing facts are not taken into account.:

- family relations of persons;

- finding a dependent person;

- registration of birth, adoption, marriage, divorce and death;

- confessions of paternity;

- belonging of title documents (with the exception of military documents, passports, identity cards and certificates issued by civil registration authorities) to a person whose first name, patronymic or surname indicated in the document does not match the first name, patronymic or surname of this person according to the passport or identity card, or birth certificate;

- the availability of documents confirming the ownership, use and (or) disposal of immovable property, if the applicant had a title document on the ownership of the property, but it is lost, and the specified fact cannot be established out of court.;

- an accident, unless it can be confirmed otherwise;

- death of a person at a certain time under certain circumstances in case of refusal of civil registration authorities to register death;

- acceptance of the inheritance and the place of opening of the inheritance, if the person performing notarial acts cannot issue a certificate of inheritance rights to the applicant due to the absence or insufficiency of the relevant documents necessary to confirm the fact of taking possession of the inheritance property.

              In this publication, it is provided for in Part 3 of Article 305 of the CPC - on the establishment of other facts of legal significance, unless the legislation of the Republic of Kazakhstan provides for a different procedure for their establishment.

As a rule, these are cases of identification:

the fact of labor relations,

the fact of special working conditions,

the fact that the workbook belongs to,

the fact of being in a special settlement and other facts.

 

The consideration of cases on the establishment of facts with legal consequences is carried out by the court in a special procedure, with the specifics provided for in Chapter 32 of the CPC RK, which excludes and does not allow the possibility of considering this category of cases in a simplified (written) procedure, as well as the use of conciliation procedures.

The establishment of facts of legal importance through special proceedings is essential both for citizens who ensure the exercise of their rights and interests in this manner, and for the State, since when determining the judicial procedure for establishing facts of legal importance, any abuse of rights for the purpose of illegally obtaining benefits and property benefits is prevented.

According to art.306 of the CPC RK, the court establishes facts of legal significance only if it is impossible for the applicant to obtain proper documents certifying these facts in another order, or if it is impossible to restore lost documents.

An application for establishing a fact of legal significance is filed with the court at the applicant's place of residence, with the exception of the fact that there are documents confirming ownership, use and (or) disposal of immovable property, which is filed with the court at the location of the immovable property (art.307 of the CPC RK).

308 of the CPC RK, it must be indicated for what purpose the applicant needs to establish this fact, and evidence must be provided confirming the impossibility of obtaining proper documents by the applicant or the impossibility of restoring lost documents.

Failure by the applicant to comply with the requirements for the content of the application set out in art.308 of the CPC RK is the basis for returning the application to the applicant with all attached documents.

According to the above-mentioned rules of the procedural law, courts consider cases of this category in cases where, according to the law, such facts give rise to legal consequences (the emergence, modification or termination of personal or property rights of citizens or organizations).;

the applicant has no other opportunity to obtain or restore proper documents certifying the fact (art.306 of the CPC RK);

The current legislation does not provide for a different (non-judicial) procedure for their establishment.;

the establishment of the fact is not associated with the subsequent resolution of the dispute under the jurisdiction of the court.

When accepting an application, the court must find out from the applicant whether there is a legal interest in establishing the fact, and require the applicant to provide written evidence indicating the impossibility of obtaining or restoring a proper document certifying this fact.

If the current legislation provides for a different (non-judicial) procedure for their establishment, then the court, in accordance with paragraphs 1), Part 1, Article 151 of the CPC RK, the application must be refused.

In case of erroneous acceptance of the application and initiation of the case, it is subject to termination on the basis of subclause 1) of art.277 of the CPC RK.

Cases on the establishment of facts of legal significance are considered by the courts according to the rules of claim proceedings with the specifics established by Chapters 31-49 of this Code.

The court considers cases of this category with the participation of the applicant and interested parties (art.304 CPC RK).

If, during the consideration of a case on the establishment of a fact of legal significance, a dispute arises under the jurisdiction of the court about the law or the court itself comes to the conclusion that the resolution of the case in a special proceeding is related to the need to resolve a dispute about civil law in court, the application must be left without consideration in accordance with paragraphs 13) of art. RK.

The right to file a claim on general grounds is explained to interested persons. This issue may be obvious when accepting a statement of claim.

However, the court must summon the applicant and possibly an interested person to discuss the existence or absence of a dispute about the law, verify this, and only then leave the application without consideration.

At the same time, it is important to clarify in the definition to the parties the right to appeal to the court in the order of claim proceedings. It is necessary to distinguish a dispute about a fact from a dispute about law.

Objections related to challenging the existence of a fact do not exclude the possibility of resolving the case on the establishment of the fact on the merits.

It is the court's responsibility to eliminate doubts about the existence of a fact and establish its presence or absence with certainty.

The occurrence of a dispute over a right beyond the jurisdiction of the judicial authorities is not an obstacle to the consideration of a case in a special proceeding.

The existence of a dispute in a special proceeding on the law under the jurisdiction of the court is evidenced by the applicant's intention to use the decision in the case to bring a claim in court or the intention of one of the interested parties to challenge the rights arising in connection with the court's finding of the fact.

In cases of establishing facts of legal significance, in accordance with Article 303 of the CPC RK, in accordance with the procedure provided for in Article 165 of this Code, with the specifics established by Chapter 31 of this Code, the judge shall prepare the case for trial within ten working days from the date of acceptance of the application to the court. An extension of this period is not allowed.

According to Part 2 of Article 183 of the CPC RK, civil cases on the establishment of facts of legal significance are considered and resolved by the court within one month from the date of completion of the preparation of the case for trial.

In accordance with the requirements of Part 1 of Article 305 of the CPC RK, the court establishes the facts on which the emergence, change or termination of personal or property rights of citizens or legal entities depends.

The generalization of judicial practice in considering cases of the category provided for in Part 3 of Article 305 of the CPC RK was carried out through the study of judicial acts of the courts of first and appellate instances, as well as those that were not appealed or protested.

The list of legal facts that can be established in court provided for in Part 2 of Article 305 of the CPC RK is not exhaustive, therefore the courts have the right to consider cases on the establishment of other facts if they give rise to legal consequences for applicants, and if the legislation does not provide for a different procedure for their establishment. As a rule, these are cases concerning the establishment of: the fact of an employment relationship, the fact of special working conditions, the fact of belonging to a work record, the fact of recognition of paternity, the fact of being in a special settlement, and other facts.

In cases of establishing the fact of an employment relationship, as a rule, applicants of retirement or pre-retirement age apply to the courts, who, when contacting the authorized state body for awarding pensions, found discrepancies in the applicant's last name, first name, patronymic in the workbooks, there are also any corrections in the workbooks, or there are no records of the existence of a work record. activities in various organizations.

Documents from former state farms, collective farms and other institutions of the former USSR were not handed over to archival institutions, or these documents in the archives were destroyed as a result of fires, floods, etc.

In accordance with paragraph 2 of Article 14 of the Law of the Republic of Kazakhstan "On Pension provision in the Republic of Kazakhstan", work experience in the absence of a work record or relevant entries in it is established on the basis of documents confirming information about the job, or a court decision.

According to paragraph 1 of Article 21 of the Labor Code of the Republic of Kazakhstan, an employment relationship arises between an employee and an employer on the basis of an employment contract concluded in accordance with this Code, with the exception of cases established by the laws of the Republic of Kazakhstan.

At the same time, in accordance with Article 35 of the Labor Code of the Republic of Kazakhstan, the document confirming the employee's work activity may be any of the following::

1) employment record;

2) an employment contract with the employer's note on the date and basis of its termination;

3) extracts from the acts of the employer confirming the emergence and termination of the employment relationship based on the conclusion and termination of the employment contract;

4) extracts from the payroll for employees;

5) service record (list of information about the employee's work, work activity), signed by the employer, certified with the seal of the organization (if any);

6) extracts from the unified accumulative pension fund on the listed mandatory pension contributions;

7) information from the State Social Insurance Fund on social contributions made;

8) an archival certificate containing information about the employee's work.

At the same time, in accordance with clauses 1 and 2 of Article 14 of the Law of the Republic of Kazakhstan "On Pension Provision in the Republic of Kazakhstan", the work experience for calculating pension payments from the center for the period up to 01.01.1998 is confirmed by the workbook.

In the absence of a work record book or relevant entries in it, it is established on the basis of documents confirming information about the work, or a court decision.

The courts consider cases on establishing the facts of labor activity, the facts of work, the facts of work experience, the existence of work experience, the facts of belonging to workbooks.

For example, the decision of the Abaysky District Court of Shymkent, South Kazakhstan region, dated November 08, 2016, satisfied the application of H. and it was established: the fact of H.'s work experience, starting from 11/13/1990 to 01/13/1992, as a leading engineer at the Center for Information and Computing Services for Collective Use, located in Shymkent, Republic of Kazakhstan; the fact of H.'s work experience, starting from 02/03/1992 to 08/17/1993, as a leading specialist of the collection and maintenance group at the Joint Venture "Farab", located in Shymkent, Republic of Kazakhstan; the fact of H.'s work experience, starting from 08/18/1993 to 02/18/1998, as a repairman in the Kazakh-Korean Joint Venture Shymkent-Telbon, located in Shymkent, Republic of Kazakhstan.

In accordance with paragraph 6) of Part 1 of Article 13 of the Law of the Republic of Kazakhstan "On Pension Provision in the Republic of Kazakhstan", when calculating the length of service for assigning pension payments from the Center, the time of caring for a disabled person of the first group, a single disabled person of the second group and an old-age pensioner in need of outside help, as well as the elderly who have reached the age of eighty is also counted. age.

Accordingly, if there is no other way to confirm the fact of caring for a disabled person of the first group, a single disabled person of the second group and a pensioner in need of outside help, as well as the elderly who have reached the age of eighty, interested persons have the right to apply to the court to establish this fact in court.

By the decision of the Atyrau City Court of March 24, 2016, the application of N. was satisfied and the fact was established that N., born on October 08, 1958, took care of N., born on July 22, 1922, who died on May 03, 2009 at the age of 86, and the time for caring for the elderly was included in the total length of service, who has reached the age of eighty, for the period from July 22, 2002 to May 03, 2009 - 6 years, 9 months, 12 days.

If the court's determination of the fact of caring for an elderly person does not raise any questions, then the court's own attribution of the time of care to the applicant's total work experience is not entirely correct, since the issues of calculating the length of service for calculating pensions fall within the competence of the state body that appoints pension payments.

The proceedings in this part of the applicant's claims were subject to termination on the basis of paragraphs 1) of art.277 of the CPC RK, as not subject to consideration in civil proceedings.

Establishing the fact of working with special (harmful) working conditions

The Law of the Republic of Kazakhstan "On the State special allowance for persons who have worked in underground and open-pit mining, in work with particularly harmful and particularly difficult working conditions or in work with harmful and difficult working conditions" provides for the payment of a special allowance.

By the Decree of the Government of the Republic of Kazakhstan "On approval of the List No. 1 of productions, works, professions, positions and indicators for underground and open-pit mining, for work with particularly harmful and particularly difficult working conditions and List No. 2 of productions, works, professions, positions and indicators for work with harmful and difficult working conditions", the lists of productions were approved, jobs, professions, and positions where the specified benefit is paid.

According to the Decree of the Government of the Republic of Kazakhstan "On approval of the Rules for the provision of state basic pension payments from budgetary funds, as well as the appointment and implementation of pension payments, state basic social benefits for disability, loss of breadwinner and age, state special benefits from an authorized organization," for the appointment of state special benefits in addition to the documents listed in paragraph4 of these Rules, an organization's certificate confirming the nature of the work or working conditions is provided, among other things., according to the form in accordance with Appendix 4 to these Rules.

As a rule, due to the lack of such a certificate confirming the nature of work or working conditions, citizens go to court.

Thus, by the decision of the Akkolsky district Court of the Akmola region dated February 16, 2015, the application of G. was satisfied. and the legal fact has been established that the conditions and nature of work as a gas-electric welder in the Alekseevsky district association Kazselkhoztechnika, a gas-electric welder at the Alekseevsky transport enterprise Transelkhoztechnika, an electric welder at Tselinograd No. 2 specialized mobile mechanized column (SPMK), a gas-electric welder at JSC Tselinny Experimental Plant from July 18, 1975 to July 26 October 2002, relate to work with particularly harmful working conditions and comply with List No. 2, approved by Resolution of the Government of the Republic of Kazakhstan dated December 19, 1999 No. 1930.

Citizens' statement on the establishment of the fact of belonging to workbooks

The reason for citizens to go to court with such statements are inaccuracies and corrections in workbooks, incorrect spelling of last name, first name or patronymic, and others.

As one of the positive examples, the decision of the Zerendinsky District Court of the Akmola region of January 21, 2016 satisfied the application of U. and it was established that the employment record issued by the Zerendinsky Pond farm in the name of U., born in 1953, belonged to a citizen of U., born on February 11, 1953.

Establishing the legal fact of living in a special settlement

The reason for citizens to apply for this category of cases is the benefits provided for in Article 24 of the Law of the Republic of Kazakhstan "On Rehabilitation of Victims of Mass Political Repression" and the Law of the Republic of Kazakhstan "On Special State benefits in the Republic of Kazakhstan", which are provided to victims of political repression and victims of political repression.

In accordance with Article 2 of the Law of the Republic of Kazakhstan "On Rehabilitation of Victims of Mass Political Repression", this Law applies to all persons, without exception, who were directly subjected to political repression in the territory of the former USSR and are currently citizens of the Republic of Kazakhstan.

Victims of political repression in this Law are recognized as children of victims of political repression who were with their parents or replaced them in places of deprivation of liberty, in exile, exile or special settlement, as well as children of victims of political repression who were under the age of eighteen at the time of the repression and as a result of its application were left without parental care.

According to the Law of the Republic of Kazakhstan "On the Rehabilitation of victims of Mass Political Repression", victims of political repression, that is, persons forcibly resettled in Kazakhstan, are entitled to receive monetary compensation for the period of stay in a special settlement.

The procedure for paying monetary compensation to victims of mass political repression is defined by the Rules approved by the Government of the Republic of Kazakhstan Resolution No. 82 dated January 23, 2003.

Due to the lack of archival documents on the duration of the applicant's stay in the special settlement, this fact must be established in court. The court's decision to establish this fact serves as the basis for issuing a certificate to the applicant by the prosecutor's office confirming his status as a victim of political repression.

The applicants are citizens, as a rule, children of persons who have been subjected to political repression, who were born in the territory of a special settlement and live with their parents before rehabilitation.

When considering cases of this category, the courts examine as evidence confirming the applicants' claims – applicants' birth certificates, archival certificates, rehabilitation certificates, certificates issued by the UKPS and the SU of the State Duma of the Republic of Kazakhstan for the region, witness statements.

Thus, the decision of the Zhambyl District Court of the Zhambyl region dated March 02, 2015 satisfied E.'s application and established the fact that E., born on June 22, 1951, was located in a special settlement in the village of Beishek in the Kirovsky district of the Talas region of the Republic of Kyrgyzstan from June 22, 1951 to April 30, 1956.

At the same time, the decision of the Taraz City Court of the Zhambyl region of July 15, 2015, denied the application of K., born on August 11, 1945, to recognize K. as a victim of political repression.

As follows from these decisions, the applicants applied to the court for similar circumstances, since in accordance with the resolution of the Council of People's Commissars of the USSR and the Central Committee of the Central Committee of the Communist Party of the Soviet Union (b) No. 1428-326 of August 21, 1937, persons of Azerbaijani and Korean nationality were subjected to forced resettlement from their permanent place of residence. – Azerbaijan, Georgia and the Far East to Central Asia and Kazakhstan, and they are the children of people who were subjected to political repression, who were born in a special settlement and live with their parents before rehabilitation, that is, they are victims of political repression.

The identity of individuals, namely the fact that a person with the same surname, first name and patronymic and another person with a different surname, first name and patronymic are one and the same person, is not one of the legal facts that can be established in court, with the explanation that in these cases, depending on depending on the documents in which the surname, first name and patronymic of the person are indicated other than in the identity documents, it is necessary to establish either the fact of ownership of such a title document., or to establish the inaccuracy of the relevant record in accordance with Chapter 44 of the CPC RK.

For example, the decision of the Tselinograd District Court of the Akmola region of February 10, 2015 satisfied the application of I.M., and established the fact that I.M., born on May 01, 1935, a native of the Akmola region and I.M.M. are one and the same person.

The reason for I.M.'s appeal to the court with such a statement was that in the agreement on the privatization of the apartment building she is listed as I.M.M., and in all other documents she is listed without I.M.'s patronymic.

In this situation, it is considered correct to establish that the applicant I.M. owns a privatization agreement issued in the name of I.M.M.

So, by the decision of the Aktobe city Court dated February 25, 2016, V.'s application was satisfied and the legal fact was established that V., indicated in the marriage certificate No. 015192 dated 06/29/1968 and V., indicated in the identity card of a citizen of the Republic of Kazakhstan No. 025027577, issued on 03/30/2010, is one and the same person. It follows from the content of the court's decision that the reason for the appeal

V. an error was brought to court in writing her last name when issuing an identity card, since according to the identity card her last name is indicated with the letter "e", and in the marriage certificate she was given the last name of her spouse V., with the letter "i". The fact that the correct surname of the applicant is written with the letter "i" is confirmed by the marriage certificate and the death certificate of the spouse.

In fact, the applicant applied to the court with such a statement, not wanting to bring her identity documents in accordance with the marriage certificate. Proceedings on this application

V. was subject to termination on the basis of subclause 1) of art.277 of the CPC RK as not subject to consideration in civil proceedings, with a recommendation to contact the state documentation authorities to bring the identity document into compliance.

 

The establishment of facts of legal significance does not include the establishment of the fact of force majeure, succession, write-off of funds, or ownership of a property object, or the establishment of the fact of the amount of wages.

Thus, by the decision of the Zhetysu District Court of Almaty dated May 27, 2015, G.'s application was satisfied and the fact was established that G. had received a certain salary in rubles as an insurance agent in the Inspectorate of the State Insurance of the Sovetsky district of Alma Ata, Kazakh SSR, for the period from 1978 to 1982, with a breakdown by year and month and an indication of the monthly wages.

By the decision of the court No. 2 of Uralsk, West Kazakhstan region, dated January 06, 2015, on the contrary, D.'s application for establishing the fact of receiving wages was refused.

It is assumed that the consideration of applications for establishing the facts of receiving wages is incorrect in itself.

Also, by the decision of the court No. 2 of Aktau, Mangystau region, dated January 21, 2015, according to K.'s application, the fact of K.'s right was established. to receive annuity insurance payments in a lump sum for three years under the Annuity insurance contract No. AUP208020910A003 dated September 02, 2010, concluded between JSC "Life Insurance Company Commerce-Life" and LLP "Oil Construction Company".

It is assumed that this fact was not subject to the court's establishment in a special proceeding, as a fact of legal significance, and the applicant K. in order to receive insurance payments, it was necessary to apply to the court in the order of claim proceedings, with a claim against JSC "Life Insurance Company Commerce-Life" for the recovery of insurance payments. According to paragraph 7 of the normative resolution of the Supreme Court of the Republic of Kazakhstan "On judicial practice in cases of establishing facts of legal significance", it is explicitly stipulated that in connection with the liquidation of the USSR and its bodies, the courts have the right to establish the facts of identity of certificates to orders and medals to a person whose name, patronymic or surname, indicated in these documents, They do not match the name, patronymic, or surname of this person on the passport, identity card, or birth certificate.

However, the decision of the Kargalinsky District Court of the Aktobe region dated May 26, 2015, according to P.'s statement, established the fact that the entry of I.'s patronymic in the certificate of "Veteran of Labor" dated August 20, 1988 on awarding the medal "Veteran of Labor" was incorrect and the correct entry of M.'s patronymic in the specified certificate was established, which is incorrect.  

In judicial practice, the courts also establish the facts of the applicants' education.

Thus, by the decision of the Akkol district Court of the Akmola region dated March 11, 2015, upon S.'s application, the court established the fact that S., born in 1961, studied at Kokshetau rural Vocational Technical School (SPTU) No. 100 from 1977 to 1979, specializing in cook.

It follows from the court's decision that in the archival certificate in the name book of students of Kokchetav SPTU, the applicant is listed as M. Olga, instead of Orynbasar, the year of birth is incorrectly indicated in 1962, instead of 1961, and the elimination of discrepancies is necessary for the applicant to provide a diploma of graduation from the educational institution in the State Institution "Department of Employment and Social Programs of the Akkol district".

In these circumstances, the court's finding of the fact of education is incorrect, since, given that there is a document confirming the applicant's studies at Kokchetavsky Vocational Technical University in the form of an archival certificate of the student's name book, however, the applicant's name and date of birth indicated in it do not coincide with the applicant's name and date of birth indicated in the identity documents, it is assumed it is correct to establish the fact of ownership of the archival certificate.

Thus, the Atyrau City Court's decision of August 23, 2016 satisfied Z.'s application. and the legal fact of Z.'s admission and education has been established. He studied at the Guryev Polytechnic College, specializing in Oil and gas well drilling, from September 01, 1970 to June 29, 1974.

The reason for the applicant's appeal to the court was the loss of his diploma, the absence of an educational institution and the lack of complete archives of information about his admission and graduation from this educational institution.

Also, the decision of the Kostanay City Court of January 14, 2016 satisfied B.'s application and established the legal fact of non–compliance of the title document - the Act of the State Commission for the commissioning of the completed facility dated January 19, 2001 with the design and estimate documentation and architectural planning assignment No. 356 dated November 01, 2000 for the facility located at Kostanay, Gagarin St., houses 166, apartment 9; and the Act of the state commission for the commissioning of the completed facility dated 19.01.2001 was amended by adding a cold extension (entrance group - letter A), with an area of 5.6 sq.m.

It is assumed that the judicial establishment of the fact of non-compliance of the title document with the design and estimate documentation and the architectural and planning task, when such a discrepancy is obvious, is not entirely correct. The legality of making changes by the court to the content of the title document in a case being considered in a special proceeding is also questionable.

The reason for the applicant's appeal to the court was the mistakes made in 2001 in the title document – the Act of Commissioning the completed construction facility.

When considering cases concerning the establishment of facts of legal significance, courts must strictly follow the rules of substantive and procedural law, and carefully analyze all evidence provided by the persons involved in the case.

Regulatory legal framework

Issues of establishing facts of legal significance are regulated by Chapters 31, 32 and 57 of the CPC RK, the regulatory resolution of the Supreme Court of the Republic of Kazakhstan "On judicial practice in cases of establishing facts of legal significance" No. 13 dated 06/28/2002.

In addition, the main regulatory legal acts regulating issues in this category of cases and to be applied when considering applications for establishing facts of legal significance, depending on the type of fact to be established, are:

- The Constitution of the Republic of Kazakhstan,

- The Civil Code of the Republic of Kazakhstan,

- The Labor Code of the Republic of Kazakhstan,

- The Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family",

- The Law of the Republic of Kazakhstan "On Notaries",

- The Law of the Republic of Kazakhstan "On Pension provision in the Republic of Kazakhstan",

- The Law of the Republic of Kazakhstan "On Housing Relations",

- The Law of the Republic of Kazakhstan "On the State special allowance for persons who have worked in underground and open-pit mining, in work with particularly harmful and particularly difficult working conditions or in work with harmful and difficult working conditions",

- The Law of the Republic of Kazakhstan "On military service and the status of military personnel",

- The Law of the Republic of Kazakhstan "On Citizenship in the Republic of Kazakhstan".

- The Law of the Republic of Kazakhstan "On rehabilitation of victims of mass political repression".

- The Law of the Republic of Kazakhstan "On special State allowance in the Republic of Kazakhstan",

- The Law of the Republic of Kazakhstan "On Rehabilitation and Bankruptcy" and others.

The specified list of normative legal acts is not exhaustive, since in cases of establishing facts of legal significance, depending on the type (category) of the fact established in court, other normative legal and by-laws governing issues related to a specific category of the case are subject to application.

 

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