Establishing the facts of registration of birth, adoption, marriage, divorce and death

             A study of the applications and rulings of the courts of first instance on the return of applications showed that basically all applications were returned reasonably, on the grounds provided for in Part 1 of Article 152 of the CPC. There are no complaints about the return of applications.

             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 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 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 the possession, use and (or) disposal of immovable property, which is filed with the court at the location of the immovable property (art.307 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 the proper documents certifying the fact;

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.

Regulatory legal framework

Issues of establishing facts of legal significance are regulated by Chapters 31, 32 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), 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 June 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 Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family".

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, 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 Part 1 of art.277 of the CPC.

If, when submitting an application or considering a case in a special proceeding, it is established that there is a dispute over the right 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 (Part 2 of art.304 CPC).

In accordance with the requirements of Article 305 of the CPC, 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 facts:

- 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.

The present generalization was carried out by category - registration of birth, adoption, marriage, divorce and death. The generalization of judicial practice in the consideration of cases in this category was carried out through the study of judicial acts of the courts of first instance, which were not appealed and protested.

When studying judicial acts of cases on the establishment of these legal facts, it was found that civil cases are mainly considered by the courts on the application for establishing the facts of registration of birth and marriage.

When considering cases of this category, in accordance with paragraph 6 of the normative resolution of the Supreme Court of the Republic of Kazakhstan "On judicial practice in cases of establishing facts of legal significance", courts should keep in mind that the court does not establish the events themselves, but the facts of their registration with the relevant authorities.

Such cases are subject to review if such a record has not been preserved in the civil registration authorities and the relevant archives and its restoration is refused. The subject of proof:

- the existence of the fact of registration; - the relevant record has not been preserved in the registry office and the restoration of such a record has been refused, or the fact of registration of birth, adoption, marriage, divorce and death can be restored only on the basis of a court decision.;

- the purpose of establishing the fact of registration of birth, adoption, marriage, divorce and death; - the absence of a dispute about the right. Necessary evidence:

- a certificate from the registration authority about the impossibility of restoring the lost document, loss of records;

- evidence confirming the registration of the relevant fact (documents and other evidence containing information about the registration of birth, marriage and death, copies of birth, marriage, death certificates from personal files, etc.);

- a certificate from the applicant's place of residence, registration information.

For example, the decision of the Balkhash City Court of the Karaganda region in the case of M.'s application established the fact of registration of S.'s birth, born on November 11, 1958 in the Aktogay district of the Karaganda region.

The reason for the applicant's appeal to the court was the fact that the birth certificate had been lost. When she applied to the RAGS authorities for a second birth certificate, she received a response stating that her birth certificate was missing.

She needs this birth certificate to apply for an old-age pension. Otherwise, the possibility of restoring her birth certificate 7 is lost. She asked to establish the legal fact of birth registration.

When examining M.'s application, it was found that according to a letter from the Department of Justice of the Karaganda region dated September 07, 2016, there was no birth certificate in the Department of the Ministry of Justice of the Karaganda region in the name of O. (S.), born on November 11, 1958.

The audit was carried out on the district (city) archives of the Karaganda region for the period 1956-1960 and the records of the assembly, starting from 1958 to the present.

Having interviewed the applicant's sister witnesses, who confirmed S.'s place and date of birth, information about her parents, and examined the submitted documents, the court considered it possible to satisfy the applicant's claims in full.

President    

Republic of Kazakhstan     

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

 

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