Establishing the facts of ownership 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

In connection with the adoption by the Law of the Republic of Kazakhstan No. 377-V dated October 31, 2015 of the new Civil Procedure Code of the Republic of Kazakhstan, which entered into force on January 01, 2016, the previously valid subsection 4 "Special proceedings" Chapters 30, 31 of the Civil Procedure Code of the Republic of Kazakhstan, paragraph 4, paragraph 2 of art. the following wording: "the establishment of facts on which the emergence, modification or termination of personal or property rights of citizens or organizations depends:

the facts of ownership 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."

In the new CPC, these norms are now regulated by the subsection "Special proceedings" in Chapter 31.32 of the CPC, where paragraph 5 of paragraph 2 of Article 305 of the CPC is set out in the following wording: "establishing the facts on which the emergence, modification or termination of personal or property rights of citizens or legal entities depends: ownership 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 last name, indicated in the document, does not match the first name, the patronymic or surname of this person on the passport or identity card, or birth certificate."

The norm of clause 5, clause 2, Article 305 of the CPC in the new version has not changed in its content from the previous version of the CPC, the word "legal entities" has been added instead of the word "organizations".

Chapter 31 of the CPC introduces a new norm, Article 303, on conducting preparations for the trial of special proceedings.

According to the said norm, 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. The procedure for the consideration of special proceedings has been changed, which in the previous CPC was regulated in Article 290 and provided that if, during the consideration of a case in special proceedings, a dispute arises under the jurisdiction of the court about the law, the court issues a ruling on the consideration of the case in the order of the claim proceedings.

According to Part 1 of paragraph 1 of Article 302 of the CPC, cases considered by the court in special proceedings include cases on the establishment of facts of legal significance.

It follows from the norm of art.303 of the CPC that, 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 prepares 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.

304 of the CPC, according to Part 1 of this Article, cases of special proceedings are considered by courts according to the rules of claim proceedings with the specifics established by Chapters 31-49 of this Code. The court considers cases of special proceedings with the participation of the applicant and interested persons.

If, when filing an application or considering a case in a special proceeding, it is established that there is a dispute over the law under the jurisdiction of the court, the court issues a ruling on leaving the application without consideration, which explains to the parties and interested persons their right to appeal to the court in the order of the claim proceedings.

According to Part 2 of paragraph 5 of Article 305 of the CPC, the court establishes the facts on which the emergence, change or termination of personal or property rights of citizens or legal entities depends.

The court considers cases on establishing the facts of: ownership 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 the birth certificate.

In accordance with Article 306 of the CPC, the court establishes facts of legal significance only if it is impossible for the applicant to obtain proper documents certifying these facts in another manner, or if it is impossible to restore lost documents.

According to Articles 307,308 of the CPC, an application in cases of establishing a fact of legal significance is filed with the court at the applicant's place of residence. The application must indicate for what purpose the applicant needs to establish this fact, and evidence must be provided confirming the applicant's inability to obtain proper documents or the impossibility of restoring lost documents.

In accordance with Article 309 of the CPC, a court decision to establish a fact of legal significance is the basis for state registration of the relevant right and the issuance of relevant documents, if such a right is subject to registration, without replacing the documents issued by these authorities.

Paragraph 7 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 13 dated 06/28/2015 "On judicial practice in cases of establishing facts of legal significance" states that, according to the requirements for establishing the fact that title documents belong to a person whose first name, patronymic or surname indicated in the document does not match the first name, patronymic or surname this person's passport or identity card or birth certificate (subparagraph 4 of part 2 of Article 305 of the CPC) at the application acceptance stage, and if it is adopted, when preparing the case for trial, the courts should require the applicant to provide evidence that the title document belongs to him and the organization that issued it does not have the opportunity to make appropriate corrections to it.

Courts do not have the right to establish the fact that military documents, passports, identity cards and certificates issued by civil registration authorities belong to a particular person. At the same time, it should be borne in mind that in connection with the liquidation of the USSR and its organs, the courts have the right to establish the facts of certificates belonging to orders and medals to a person whose name, patronymic or surname indicated in these documents do not match the name, patronymic or surname of this person on a passport or identity card, or a birth certificate. At the same time, the decision to establish such facts should be based on a set of evidence that reliably indicates that such documents belong to the applicant.

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.

The inability to obtain a document should be understood as either the absence of a procedure for registering a fact (for example, being dependent), or non-compliance with the procedure for registering a fact and the inability to resort to it in these conditions (for example, the fact of death, the fact of recognition of paternity in cases where the child's parents, not having registered the marriage after his birth, we made timely corrections to the birth record of the child and this cannot be done due to the death of the father).

The inability to obtain a document should also be understood as cases where there are documents confirming the fact, but they contain errors or inaccuracies that deprive the document of evidentiary value, which cannot be corrected (for example, an accident report).

The decision rendered in the case of establishing a fact of legal significance must comply with the requirements of Article 223 of the CPC. It must contain evidence in support of the conclusion about the circumstances established by the court.

When satisfying an application for the establishment of a fact of legal significance, the court must fully disclose the content of this fact in the operative part of the decision.

When considering the requirements for establishing the fact that title documents belong 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 on a passport or identity card or birth certificate, according to art.256 of the CPC, they are not considered in absentia, and no decision is made in absentia.

Return of the statement of claim

152 of the CPC, according to Part 1, the judge returns the statement of claim if:

1) the plaintiff has not complied with the pre-trial dispute settlement procedure established by law for this category of cases or stipulated by the parties' agreement, and the possibility of applying this procedure has not been lost;

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

3) the statement of claim does not comply with the requirements of Article 148, subitems 1), 2), 3) and 5) of the first part of Article 149 of this Code and it will be established that it is impossible to eliminate deficiencies at the stage of preparing the case for trial.;

4) the application was submitted by an incompetent person;

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

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

7) an agreement has been concluded between the parties in accordance with the law on the transfer of this dispute to arbitration, unless otherwise provided by law; 8) the body authorized to manage communal property has applied to the court for recognition of the right of communal ownership of an immovable thing before the expiration of one year from the date of acceptance of this thing by the body carrying out state registration rights to immovable property, with the exception of the case specified in paragraph 3 of Article 242 of the Civil Code of the Republic of Kazakhstan; 9) the plaintiff has declared the return of the statement of claim filed by him.

On the return of the statement of claim, the judge issues a ruling in which he indicates which court the person should apply to if the case is not within the jurisdiction of this court, or how to eliminate the circumstances preventing the initiation of a civil case.

The ruling must be issued within five working days from the date of receipt of the statement of claim to the court and handed over or sent to the plaintiff with all attached documents.

The return of the statement of claim does not prevent the plaintiff from filing a lawsuit against the same defendant again, on the same subject and on the same grounds, if they eliminate the violation.

The court's ruling on the return of the statement of claim may be appealed or appealed to the court of appeal, whose decision is final.

Thus, by the ruling of the Saryarkinsky District Court of Astana dated February 16, 2015, A.'s statement on establishing the fact of belonging to the decision of the Akim of Akmola was returned on the grounds that the plaintiff had not complied with the procedure for preliminary pre-trial dispute resolution established by law for this category of cases and the possibility of applying this procedure had not been lost. Disagreeing with the court's ruling, the applicant filed a private complaint about the cancellation of the ruling, arguing that the court's conclusions contradict the Constitution of the Republic of Kazakhstan, and the court violated the applicant's right to judicial protection.

It follows from the case file that in the decision of the akim's office of Akmola No. 8/607 dated September 29, 1993, an error was made in spelling the surname and first name of A. Based on the application of A., the resolution of the Akimat of Astana dated October 20, 2014 amended the decision of the akim's office of Akmola, where instead of the wrong surname, the surname is correctly indicated, However, no changes have been made to the name.

292 of the Civil Procedure Code of the Republic of Kazakhstan, "the court establishes facts of legal significance only if it is impossible for the applicant to obtain proper documents certifying these facts in another manner, or if it is impossible to restore lost documents."

The applicant has not submitted written evidence indicating the impossibility of obtaining or restoring a proper document certifying this fact to the court.

In this regard, the court reasonably recommended that the applicant apply to the Akimat of Astana with a request to amend the decision of the akim of Akmola in terms of the applicant's name, in case of refusal, the applicant has the right to challenge the actions of the state body in court.

The board, agreeing with the court's conclusions, considers that the ruling on the return of A.'s application on the grounds provided for in paragraph 1 of Article 154 of the CPC RK is lawful and justified, there are no grounds for its cancellation or amendment.

             The ruling of the Appellate Judicial Board for Civil and Administrative Cases of Astana, the ruling of the Saryarkinsky District Court of Astana dated February 16, 2015 was left unchanged, and the private complaint was not satisfied.

           Refusal to accept the statement of claim.

             151 of the CPC, according to part 1 of this article, the judge refuses to accept the 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 or a court ruling on the termination of proceedings on the grounds provided for in this Code, issued in a dispute between the same parties, on the same subject and on the same grounds.;

3) there is an arbitration 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 judge issues a ruling on the refusal to accept the statement of claim within five working days from the date of its receipt, which is handed over or sent to the applicant with all the documents attached to the claim.

The refusal to accept the statement of claim prevents the plaintiff from re-filing a lawsuit against the same defendant, on the same subject and on the same grounds.

The court's ruling on the refusal to accept the statement of claim indicates which authority the plaintiff should apply to if the case is not subject to consideration and resolution in civil proceedings.

The ruling on the refusal to accept the statement of claim may be appealed or protested.

           Thus, by the ruling of the judge of the Karasai District Court of the Almaty region dated May 22, 2015, K.'s application for establishing the existence of a decision of the village administration was refused.

The judge reasonably concluded that the establishment of this fact is not provided for by Chapter 31 of the CPC RK, the application is not subject to consideration in civil proceedings. K. appealed to the court with a statement on the establishment of a legal fact and indicated that her husband K.E. died on January 6, 2014, upon receipt of the death certificate, she discovered that the recording authorities His place of birth is incorrectly indicated instead of the city of Rivne, the city of Dovno is incorrectly indicated.

The establishment of this fact is necessary for the registration of benefits for the payment of compensation for the care of cancer patients.

She asked the court to establish the fact of ownership of the death certificate.

By the ruling of the judge of the Zyryanovsky District Court dated May 25, 2015, K.'s application was refused on the grounds provided for in Article 153, Part 1, paragraph 1 of the CPC RK as not subject to consideration in civil proceedings.

In a private complaint to She asked the judge to cancel the ruling, referring to the impossibility of correcting the error through the authorities that committed violations when issuing documents.

Refusing to accept the application, the judge pointed out that the fact of belonging to a particular person of military documents, passport, identity card of a citizen of the Republic of Kazakhstan and certificates issued by civil registration authorities is not established in court.

The Appeals Board agreed with the conclusions of the court of first instance on the following grounds.

In accordance with Article 291, paragraph 2, paragraph 4, of the Civil Procedure Code of the Republic of Kazakhstan, the court establishes the facts of ownership of title documents, with the exception of military documents, passports, identity cards and certificates issued by civil registration authorities.

Thus, the law explicitly stipulates that the facts of ownership of certificates issued by civil registration authorities are not subject to judicial investigation.

The court of first instance correctly pointed out that if the authorized bodies refuse to make corrections to the record, the applicant has the right to apply to the court for protection of his rights by appealing such actions.

By the ruling of the Appellate Judicial Board for Civil and Administrative Cases of the East Kazakhstan Regional Court dated June 23, 2015, the ruling of the judge of the Zyryanovsky District Court dated May 25, 2015 on the refusal to accept K.'s application to establish the fact of the documents' ownership remained unchanged. K.'s private complaint was not satisfied.

Leaving the application without consideration.

In accordance with Part 1 of Article 279 of the CPC, the court leaves the statement of claim without consideration if:

1) the plaintiff has not complied with the pre-trial dispute settlement procedure established by law for this category of cases or stipulated by the contract, and the possibility of applying this procedure has not been lost;

2) the statement of claim is filed by an incapacitated person;

3) the statement of claim is signed or filed by a person who does not have the authority to sign or present it.;

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

5) an agreement has been concluded between the parties in accordance with the law on the transfer of the dispute to arbitration, unless otherwise provided by law.;

6) the plaintiff, who did not request a hearing in his absence, did not appear in court on a second summons; 7) the person in whose interests the case was initiated did not support the stated claim.;

8) the plaintiff has filed an application for the return of the statement of claim;

9) an application for the restoration of rights on lost bearer securities and warrant securities is filed before the expiration of a three-month period from the date of publication;

10) an application for recognition of the right of communal ownership of an immovable has been submitted earlier than the deadline established by law, or in violation of the procedures provided for by law for fixing immovable property as ownerless;

11) the state fee has not been paid in accordance with the procedure established by part three of Article 105 and part two of Article 106 of this Code.;

12) information on publication in the mass media in cases of special claim proceedings provided for in Chapter 34 of this Code has not been provided.;

13) when considering a case in a special proceeding, it is established that there is a dispute about the law under the jurisdiction of the court, which is subject to consideration in the claim proceedings.

According to Part 1 of Article 280 of the CPC, the proceedings in cases of leaving a statement of claim without consideration end with a court ruling. In this definition, the court is obliged to indicate how to eliminate those listed in the sub-paragraphs 1), 2), 3), 9) and 10) of Article 279 of this Code, circumstances preventing the consideration of the case. By leaving the statement of claim without consideration on the grounds provided for in subitems 1), 2) and 5) of Article 279 of this Code, the court shall indicate in the ruling the refund of the state fee and the cancellation of the measures taken to secure the claim.

The court's ruling on leaving the statement of claim without consideration may be appealed or appealed to the court of appeal, whose decision is final.

After the elimination of the circumstances that served as the basis for leaving the application without consideration, the interested person has the right to file a claim with the court again in accordance with the general procedure. A copy of the ruling is sent or handed to the plaintiff along with the materials attached to the statement of claim.

Termination of the proceedings.

The grounds for termination of proceedings in a case are regulated by the norm of art.277 of the CPC, according to which the court terminates proceedings in a case if:

1) the case is not subject to consideration in civil proceedings;

2) there is a court decision or a court ruling on the termination of the proceedings in connection with the plaintiff's rejection of the claim or the approval of a settlement agreement between the parties, an agreement of the parties on the settlement of the dispute (conflict) by mediation, which has entered into legal force. agreements on dispute settlement by way of a participatory procedure;

3) there is an arbitration award made in a dispute between the same parties, on the same subject and on the same grounds.;

4) the court accepted the plaintiff's rejection of the claim;

5) the parties have concluded a settlement agreement and it has been approved by the court.;

6) the parties have concluded an agreement on the settlement of the dispute (conflict) by way of mediation, an agreement on the settlement of the dispute by way of a participatory procedure, and they have been approved by the court;

7) after the death of a citizen who is one of the parties to the case, the disputed legal relationship does not allow for succession.;

8) the organization acting as a party to the case has been liquidated with the termination of its activities and the absence of legal successors;

9) it has been established that a foreign State has judicial immunity.

In accordance with Part 1 of Article 278 of the CPC, the procedure and consequences of termination of proceedings in the case. The proceedings on the case are terminated by a court ruling.

In case of termination of the proceedings, a second appeal to the court on a dispute between the same parties, on the same subject and on the same grounds is not allowed.

By terminating the proceedings on the grounds provided for in sub-paragraphs 1), 2), 3), 5) and 6) of Article 277 of this Code, the court in the ruling indicates the refund of the state fee in accordance with the requirements of Article 107 of this Code. By terminating the proceedings, the court cancels the measures taken to secure the claim.

A court ruling on the termination of proceedings in a case may be appealed and protested in the cases and in the manner provided for by this Code.

So, by the ruling of the court No. 2 of Aktau, Mangystau region, dated 02.02.2015, the civil case on K.'s application for establishing a fact of legal significance was discontinued.

The applicant K. applied to the court with the above-mentioned statement, stating that according to her birth certificate dated 11/16/1954, her name was indicated as "Rima".

However, in 2010, when receiving an identity card, an error was made in the personal data instead of "Rima" and her name was indicated as "Rimma" with a double letter "M", this discrepancy is confirmed by birth certificate No. 568221 dated 26.11.1954 and an identity card issued by the Ministry of Justice of the Republic of Kazakhstan dated 06/21/2010. The specified discrepancy in the data in the identity card currently creates an obstacle for her to accept the inheritance.

In this regard, the applicant asks the court to establish the fact of legal significance, namely the fact that the applicant belongs to K. the identity card of the same person. The court found that according to the birth certificate dated 11/16/1954, the applicant's name was indicated as "Rima".

However, in 2010, when receiving an identity card, an error was made in the personal data instead of "Rima" and her name was indicated as "Rimma" with a double letter "M", this discrepancy is confirmed by birth certificate No. 568221 dated 26.11.1954 and an identity card issued by the Ministry of Justice of the Republic of Kazakhstan dated 06/21/2010.

In accordance with paragraph 4 of art. 291 CPC RK "the court establishes the facts on which the emergence, modification or termination of personal or property rights of citizens or organizations depends, the court considers cases on establishing the facts of ownership of title documents (with the exception of military documents, passports, identity cards and certificates issued by civil registration authorities) to a person, first name, patronymic or surname which, indicated in the document, does not match the name, patronymic or surname of this person on the passport or identity card, or birth certificate."

However, the court considers the applicant's arguments on the reference of this provision of the law to be unfounded, since, according to art. 292 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 manner."

In this case, the applicant has the right to apply to the authorized body to replace his identity card and ghost it in accordance with the birth certificate. By virtue of paragraph 1 of Article 247 of the CPC RK, the court terminates the proceedings if the case is not subject to consideration in civil proceedings.

Terms of consideration of cases.

According to Part 2 of Article 183 of the CPC, civil cases of special proceedings are considered and resolved by the court within up to one month from the date of completion of the preparation of the case for trial.

Civil cases of special proceedings are considered and resolved by the court within up to one month from the date of completion of the preparation of the case for trial.

State duty.

According to 610 of the Tax Code of the Republic of Kazakhstan, the rates of state duty in courts are established. According to which, from statements of claim filed with the court, statements of special claim, statements (complaints) in cases of special proceedings, a fee is charged from statements of special claim, statements (complaints) in cases of special proceedings, with the exception of those specified in subparagraphs 2), 3), 4) and 13) of this paragraph, - 50 percent.

In accordance with Part 2 of Article 534 of the Tax Code, fixed interest rates of the state duty are calculated based on the size of the monthly calculation index established by the law on the republican budget and effective on the date of payment of the state duty (hereinafter referred to as the MCI), unless otherwise established by this Code.

A study of the cases showed that when submitting an application to the court, the state fee was paid at the rate of 50 percent of the monthly calculation index established by the law on the republican budget and effective on the date of payment of the state fee.

Jurisdiction.

In accordance with Article 307 of the CPC, "an application for establishing the ownership 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. a passport or identity card, or birth certificate, is filed with the court at the applicant's place of residence."

According to paragraph 1 of Part 2 of Article 467 of the CPC, "the courts of the Republic of Kazakhstan consider cases of special proceedings on applications from foreigners or stateless persons in cases where the applicant in the case of establishing the fact has a place of residence in the territory of the Republic of Kazakhstan or the fact that needs to be established has been or is taking place in the territory of the Republic of Kazakhstan."

Establishing the facts of ownership 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 considered in the It is essential for both citizens and legal entities to ensure the exercise of their rights and interests in this manner., This is also the case for the State, since when determining the judicial procedure for establishing facts of legal significance, any abuse of rights for the purpose of illegally obtaining benefits and property benefits is prevented.

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

An application for establishing the ownership 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 certificate the birth certificate is submitted to the court in writing or in the form of an electronic document, which is submitted to the court at the location of the immovable property (art.307 of the CPC).

The statement on the establishment of a fact of legal significance, as established by art.308 of the CPC, must indicate which fact and for what purpose the applicant needs to establish.

In addition, the applicant must provide evidence confirming the impossibility of obtaining proper documents by the applicant or the impossibility of restoring lost 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.302 of the CPC);

The current legislation does not provide for a different (non-judicial) procedure for their establishment; the establishment of a fact is not associated with the subsequent resolution of a 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 paragraph 1) of Part 1 of Article 151 of the CPC, 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 paragraph 1 of art.277 of the CPC.

When accepting an application for establishing the facts of ownership 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 certificate The judge, having established that there is a dispute about the right, in accordance with Article 304 of the CPC, issues a ruling on leaving the application without consideration., in which it explains to the parties and interested persons their right to appeal to the court in the order of claim proceedings.

If, during the consideration of the case, a dispute arises about the law under the jurisdiction of the court, the court is obliged to issue a ruling on leaving the application without consideration, in which it explains to the parties and interested persons their right to appeal to the court in the order of claim proceedings.

The court establishes the fact that title documents (with the exception of military documents, passports, identity cards and certificates issued by civil registration authorities) belong 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. property, but it is lost. It is necessary to carefully check the presence or absence of title documents, as well as the absence of data on the ownership of title documents (with the exception of military documents, passports, identity cards and certificates issued by civil registration authorities) to a person whose name, patronymic or surname indicated in the document does not match the name, patronymic or surname of this person. by passport or identity card, or birth certificate.

In the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 28, 2002  No. 13 "On Judicial practice in cases of establishing facts of legal significance" provides a clear explanation of the cases in which courts may establish the ownership 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 The names indicated in the document do not match the name, patronymic or surname of this person on the passport or identity card, or birth certificate.

Establishing the facts of ownership 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 considered in the The procedure for special proceedings is essential both for citizens who ensure the exercise of their rights and interests in this manner, and for the state., because when determining the judicial procedure for establishing facts of legal significance, any abuse of rights for the purpose of illegally obtaining benefits and property benefits is prevented.

An application for establishing the ownership 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 certificate the birth certificate is submitted to the court in writing or in the form of an electronic document at the applicant's place of residence, with the exception of possession, the use and (or) disposal of immovable property on the basis of ownership, economic management, operational management, which is filed with the court at the location of the immovable property.

The statement on the establishment of a fact of legal significance must indicate which fact and for what purpose the applicant needs to establish. In addition, the applicant must provide evidence confirming the impossibility of obtaining proper documents by the applicant or the impossibility of restoring lost 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.302 of the CPC);

The current legislation does not provide for a different (non-judicial) procedure for their establishment; the establishment of a fact is not associated with the subsequent resolution of a 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 paragraph 1) of Part 1 of Article 151 of the CPC, 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 Part 1 of art.277 of the CPC.

The need to establish the fact that a citizen owns title documents arises from an error in writing his name, patronymic or surname in one of the title documents, as a result of which this information does not correspond to what is indicated in the passport or birth certificate, and this error can no longer be corrected by the issuing authority.

It should be remembered that if an error is made in the workbook and the person continues to work at the enterprise where it was issued, then the error correction should be sought there.

When establishing the facts of ownership of title documents, it is necessary to take into account that the fact of ownership of a document cannot be considered as a synonym for establishing the fact of identity of a person, the fact of ownership of a workbook, diploma, certificate, and other documents is established, and not the fact of work or graduation, only ownership of title documents, not personal documents is established.

For this reason, the affiliation of party and military tickets, identity cards and certificates of a serviceman, passports and certificates issued by the registry offices are not established.

The fact of belonging to a university graduation diploma, an insurance policy, a certificate of injury, being in a hospital due to injury, and others may be established in court, if the indication of the surname, first name or patronymic in this document does not match the surname, first name or patronymic of the applicant on the passport or birth certificate.

At the same time, it is necessary to require the applicant to provide evidence that the document belongs to him and that the organization that issued it does not have the opportunity to make the necessary corrections to it.

If the document issued by the registry office contains errors, the applicant must apply to the court not in order to establish a legal fact, but in order to establish the inaccuracies of civil status records.

The refusal of the registry office to correct the record may be appealed to the court and considered by it in accordance with Chapter 29 of the CPC in the order of special claim proceedings, and in the presence of a dispute in a lawsuit.

Establishing the facts of the ownership of workbooks, the courts examine workbooks, birth certificates, marriage certificates, birth certificates, military tickets, insurance certificates of state pension insurance, certificates of registration with the tax authority, certificates of the rural akimat on the applicant's residence in a certain place, accounting records of household books, interrogate witnesses.

The social protection authorities (health authorities) and other interested persons are involved in the case, depending on the purpose of the applicant's application. N

The facts of the ownership of pension files in the records management of specific state institutions are established to any citizens, especially those who have died.

It would be more correct to consider the requirements for establishing the fact of receiving a pension for the deceased for some reason and the presence of an unpaid pension if, after the death of the pensioner, the amount of the unpaid pension remained, and according to the death certificate there is a discrepancy in the indication of the surname, first name or patronymic with the data of the pension file.

The courts also establish the facts of ownership of state archive certificates, savings books, certificates of inheritance under the law, ownership of monetary deposits in which mistakes were made in writing the surname, first name or patronymic.

The courts have the right to consider cases on establishing the fact that citizens have certificates of wounds, stay in hospital due to injury, notices from military units, military enlistment offices and other military management bodies about the death or disappearance of citizens due to wartime circumstances, since these documents are not personal.

Title documents, in particular, include: certificates of stay at the front or in the combat area; of injury during participation in hostilities; notices from military authorities of death or missing persons during the fighting; wills, testamentary dispositions in insurance certificates and in bank deposit agreements; certificates from the state archive, savings books, certificates of inheritance under the law, ownership of monetary deposits, diplomas and certificates of graduation from educational institutions, workbooks, contracts on privatization and legalization of property, etc.

The operative part of the decision in cases of establishing the fact of ownership of title documents must contain: an indication of the distinguishing features of the document - the name, by whom and in whose name it was issued, the date of issue, the number and the like, the surname, first name, patronymic of the person on the passport or birth certificate to whom the document belongs.

The facts of ownership of title documents are established by the courts in cases where, due to errors or distortions, information about the surname, first name or patronymic in documents of legal significance differs from the information indicated in other documents (as a rule, this is the case in documents certifying the identity of a citizen).

Title documents may be, for example, purchase and sale agreements, privatization and legalization agreements, barter, donation of property, and documents confirming the testator's ownership of it - registration certificates; certificates of inheritance; certificates of ownership; documents issued by administrative authorities, executive authorities, etc. P.

Civil cases on establishing the facts of ownership 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 certificate of The results of the birth show that the existing judicial practice is basically uniform, and the norms of the current legislation are applied correctly by the courts of the republic., It doesn't cause any particular difficulties.

Thus, the application is submitted to the court at the applicant's place of residence, and only the title documents are identified, not personal documents.

When accepting an application, the court finds out from the applicant whether there is a legal interest in establishing the fact, requires written evidence from the applicant indicating the impossibility of obtaining or restoring a proper document certifying this fact, these circumstances are also confirmed by the testimony of witnesses who must be questioned at the court session.

These circumstances arise due to an error in the spelling of his first name, patronymic or surname in one of the title documents, as a result of which this information does not correspond to what is indicated in the passport or birth certificate, and this error can no longer be corrected by the issuing authority.

These cases are considered in a special procedure by the court with the participation of the applicant and interested persons.

The introductory part of the decision indicates the time and place of the decision, the full and exact name of the court that issued the decision, the composition of the court, the secretary of the court session, the bailiff, the parties, other persons involved in the case and their representatives, the subject of the dispute or the stated claim.

If the parties are legal entities, then the name of such person should be indicated in accordance with the documents on registration of the legal entity.

The place of the decision is determined by the name of the city or other locality where the decision was made.

The content of the stated requirements, including if the applicant has changed the grounds or subject of the application, should be reflected in the descriptive part of the decision. In addition, the descriptive part of the decision should contain the objections of the person concerned and the explanations of other persons involved in the case.

The reasoning part of the decision must contain the circumstances of the case established in accordance with part 2 of Article 63 of the CPC by means of evidence - explanations of the applicant and his representative and interested persons, testimony of witnesses, evidence, protocols of procedural actions, minutes of court sessions, audio, video recordings, data obtained through the use of videoconferencing systems, reflecting the course and results of procedural actions., and other sources.

The decision cannot be based on assumptions about the circumstances of the case.

The court has no right to refer in its decision to evidence that has not been examined at the court session.

A decision is lawful when it is made in compliance with the norms of procedural law and in full compliance with the norms of substantive law applicable to this legal relationship, or is based on the application, if necessary, of a law governing a similar relationship, or proceeds from the general principles and meaning of civil legislation and the requirements of good faith, reasonableness and fairness (article 5 The Civil Code of the Republic of Kazakhstan and Article 6 of the CPC).

A decision is considered justified if it reflects facts relevant to the case, confirmed by evidence examined by the court that meet the requirements of the law on their relevance, admissibility and reliability, or are well-known circumstances that do not need to be proven and are collectively sufficient to resolve the dispute.

The operative part of the decision in cases of establishing the fact of ownership of title documents must contain: an indication of the distinguishing features of the document - the name, by whom and in whose name it was issued, the date of issue, the number and the like, the surname, first name, patronymic of the person on the passport or birth certificate to whom the document belongs. The operative part of the decision must contain the court's conclusion arising from the factual circumstances established in the reasoning part.

The court is obliged to state the operative part of the decision clearly and clearly so that there are no ambiguities and disputes during the execution of the decision.

The decision is made on all the requirements stated by the party. The legal facts of ownership of a copy of documents cannot be established.

in the practice of courts, there is the establishment of legal facts not provided for in Article 305 of the CPC RK, namely errors, if necessary, the establishment of legal facts of ownership of title documents, as well as violations of the norms of current legislation, the courts of the republic also considered civil cases on the application of citizens to establish the fact of ownership of workbooks, ownership of archival certificates, ownership of privatization contracts and legalization, purchase and sale agreements, and others, this category of complexity is not, The applicants' claims are satisfied reasonably by court decisions.

In accordance with Part 3 of Article 305 of the CPC, the court establishes other facts of legal significance, unless the legislation of the Republic of Kazakhstan provides for a different procedure for their establishment. In judicial practice, applications for establishing the fact of being in an employment relationship are often considered when the fact of working in a specific position or specialty for a certain period in the relevant organization, enterprise, institution and other persons for some reason are not reflected in the workbook or employment contracts and other data have not been preserved.

When considering this category of cases, it should be checked whether the specified person was actually in an employment relationship with this company and from what period and for what period he worked in the specified position in the specified organization and enterprise.

Are there any documents confirming this fact, for example: payroll statements, contributions to the pension fund, salary certificates, certificates that the company awarded him, and others?

The testimony of witnesses who worked with the applicant, providing the court with certified copies of their workbooks and so on.

A significant number of cases considered by the courts of the republic are cases on establishing the facts of the ownership of workbooks.

As a rule, applicants of retirement or pre-retirement age apply to the courts, who, when applying to 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 employment in certain organizations.

As a rule, 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" dated 06/21/2013 No. 105, 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 20 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.

On January 4, 2016, the Ekibastuz City Court of the Pavlodar region considered a civil case on the application of Urazymbetova Sh.B. for establishing the legal fact of ownership of title documents.

The applicant applied to the court to establish the ownership of the workbook, birth certificate, marriage registration certificate, as there was a typo in the workbook, birth certificate, marriage certificate indicating her patronymic, which in the future may be an obstacle to assigning her an old-age pension.

The court found that the title page of the workbook with the primary date of filling in "October 15, 1978" contains the surname, first name, patronymic: Baysalbayeva Shamshiya Boranbaevna, date of birth "October 02, 1958", A corresponding entry was made on the title page of the workbook, and the surname was corrected to "Urazymbetova" on the basis of the marriage registration certificate.

All records are executed in accordance with the law and are certified by the signatures of officials, as well as certified by seals.

In this workbook, the date of birth has been corrected from October 02, 1958 to January 02, 1958. In the submitted copies of the marriage and birth registration certificates, the applicant's patronymic is "Barambaevna".

In the applicant's identity card, the patronymic is "Borambaevna". In accordance with clause 5, Part 1, Article 305 of the CPC RK, the court establishes the facts on which the emergence, modification or termination of personal or property rights of citizens or legal entities of legal importance depends, in this case, the ownership of title documents to a person whose personal data specified in the document does not match the personal data this person's ID card. The applicant needs to establish the fact of belonging to the workbook in order to resolve the issue of receiving an old-age pension.

It is impossible to make changes by the employer, because the first entry in the workbook and filling in the title page of the workbook were made at the company that was liquidated.

In such circumstances, the application for establishing the fact of the documents' ownership is subject to partial satisfaction, and the identification of the employment record is subject to satisfaction.

In accordance with Part 2 of Article 225 of the CPC RK, the court resolves the civil case within the limits of the stated requirement. The applicant did not clarify the application in writing in compliance with the norms of the civil procedure legislation regarding the correction of the applicant's date of birth on the title page of the workbook, which is an omission and the application in this part is not subject to satisfaction.

The judge correctly concluded that the issue of incorrect registration of civil status acts should be resolved in accordance with the norms of family and marriage legislation and the rules of Chapter 44 of the Civil Procedure Code of the Republic of Kazakhstan, therefore, the application regarding the identification of birth certificates and marriage registration is not subject to satisfaction.

The above circumstances do not prevent the applicant, if necessary, from resolving this issue in compliance with the norms of substantive and procedural legislation. By a court decision, the application of Urazymbetova Sh.B. was partially satisfied. We have established the legal fact that the employment record with the initial filling on October 15, 1978, issued in the name of Urazymbetova (Baysalbayeva) Shamshi Boranbaevna, born on October 02, 1958, belongs to Urazymbetova (Baysalbayeva) Shamshi Borambaevna, born on January 02, 1958. The rest of the application is denied.

On appeal and challenge of judicial acts on appeal

           According to Part 1 of Article 401 of the CPC, in accordance with the rules provided for in this chapter, court decisions that have not entered into force may be appealed or appealed. 2. The right of appeal against a court decision belongs to the parties and other persons participating in the case. 3. The right of appeal against a court decision belongs to the prosecutor who participated in the consideration of the case. The Prosecutor General of the Republic of Kazakhstan and his deputies, regional prosecutors and equivalent prosecutors and their deputies, district prosecutors and equivalent prosecutors and their deputies, within the limits of their competence, have the right to appeal the decision regardless of participation in the consideration of the case. 4. An appeal may also be filed by persons who are not involved in the case, but in respect of whose rights and obligations the court has decided.

             Appeal of judicial acts in cassation

           According to Part 1 of Article 434 of the CPC, judicial acts of local and other courts that have entered into force may be reviewed in cassation by the Supreme Court of the Republic of Kazakhstan if the appeal procedure is followed, as well as judicial acts of the specialized judicial board of the Supreme Court of the Republic of Kazakhstan.

Judicial acts of local and other courts that have entered into legal force, in case of non-compliance with the appellate procedure for their appeal, as well as in cases specified in part two of this Article, may be reviewed in cassation upon the proposal of the Chairman of the Supreme Court of the Republic of Kazakhstan and the protest of the Prosecutor General of the Republic of Kazakhstan, if there are grounds provided for in part six of Article 438 of this Code.

Judicial acts of local and other courts that have entered into legal force in case of non-compliance with the appellate procedure for their appeal, with the exception of judicial acts in cases specified in subitems 1), 2), 3) and 4) of part two of this article, as well as judicial acts of the first and appellate instances specified in subitem 5) of part two of this Article, may be reviewed in cassation upon the protest of the Prosecutor General of the Republic of Kazakhstan on the grounds provided for in Article 427 of this Code.

The decisions of the cassation instance may be reviewed if there are grounds provided for in part six of Article 438 of this Code.

In cases of establishing the ownership 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 the certificate of At birth, all interested persons are not always involved in the case, and the facts of ownership of documents that are not title documents and technical documents are established., in the absence of legally prescribed grounds for establishing such a fact, as well as in the presence of a dispute over the right; there is a finding of ownership of the title document, some courts establish the fact of an error in writing the name, surname or patronymic.

Regulatory legal framework

Questions about establishing the facts of ownership 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, are regulated by Chapters 30.31 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), by 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 subject to application when considering applications for establishing the ownership 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 is indicated in the document, they do not match the name, patronymic or surname of this person according to the passport or identity card, or birth certificate, 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 benefits in the Republic of Kazakhstan", - The Law of the Republic of Kazakhstan "On Rehabilitation and Bankruptcy",

- The Law of the Republic of Kazakhstan "On the amnesty of citizens of the Republic of Kazakhstan, oralmans and persons with a 3-year residence permit in the Republic of Kazakhstan in connection with the legalization of their property",

-The Law of the Kazakh SSR "On Denationalization and Privatization" dated June 22, 1991,

- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 5 dated 12/19/2003 "On judicial decision",

- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 13 dated 06/28/2002 "On judicial practice in cases of establishing facts of legal significance",

- Methodological recommendations on the execution of judicial acts of the courts of the Republic of Kazakhstan, 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.

 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

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

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases