Establishment of facts of legal importance on the availability of documents confirming the ownership, use and (or) disposal of real estate objects

       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, these norms are regulated by subsection 4 "Special proceedings" Chapter 31.32 of the CPC, where paragraphs 305 of the CPC is stated 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: 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 he it has been lost, and the specified fact cannot be established out of court."

Subparagraph 6 of paragraph 2 of Article 305 of the CPC regulates more precisely the grounds on which the court can establish this fact, namely, this provision clearly states that when establishing the facts on which the emergence, change or termination of personal or property rights of citizens or legal entities depends, it is necessary to have documents confirming 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.

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 considering cases of special proceedings has been changed, according to Article 304 of the new CPC, 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 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 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 special proceedings with the participation of the applicant and interested persons. 2. 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 claim proceedings.

According to Part 2 of paragraph 6 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 facts:

6) 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.;

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 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.

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 8 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 the facts of ownership, use and (or) disposition of property on the basis of ownership, economic management, operational management (subparagraph 6 of Part 2 of Article 305 of the CPC) are established the court only provided that 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.

At the same time, the court, when considering such cases, establishes only the fact of the existence of documents confirming the ownership of the applicant's property, and not his ownership right. The facts of ownership of an unauthorized building that has not been put into operation, as well as a building registered in another name, are not subject to court determination. The facts of ownership, use and (or) disposal of motor vehicles and any other property acquired under a transaction not executed in accordance with the law also cannot be established. In this case, the applicant has the right to apply to the court with a claim for recognition of ownership rights or recognition of the transaction on general grounds.

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 of ownership, use and (or) disposition of property on the basis of ownership, economic management, operational management, according to Article 256 of the CPC, they are not considered in absentia, and no decision is made in absentia.

Return of applications.

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 the 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 registration of this thing by the body carrying out state registration of the right to immovable property, with the exception of the case specified in 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.

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.

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 was filed by an incompetent 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 time limit 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 that has entered into legal force, issued in a dispute between the same parties, on the same subject and on the same grounds, or a court ruling on the termination of proceedings in connection with the plaintiff's rejection of the claim or the approval of a settlement agreement between the parties, an agreement between the parties on the settlement of the dispute (conflict) through mediation, 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 in 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.

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.

State duty.

According to Part 1 of clause 8 of Article 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 634 of the Tax Code, fixed interest rates of the state duty are calculated based on 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.

Jurisdiction.

In accordance with Article 307 of the CPC, "an application for establishing the facts of ownership, use and (or) disposition of property on the basis of ownership, economic management and operational management, which is filed with the court at the location of the immovable property."

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."

The majority of our citizens have privately owned real estate (apartments, apartment buildings, land plots, shops, offices, and other non-residential facilities) on the basis of any title documents.

These may be purchase and sale agreements, barter agreements, donations, a privatization agreement, an act of commissioning, a decision on the legalization of real estate, a certificate of inheritance by law or by will, resolutions of various government agencies, acts on ownership or land use of a land plot, or other documents.

That is, those documents that accurately and unconditionally indicate exactly the person who owns a particular property.

According to article 188 of the Civil Code of the Republic of Kazakhstan, ownership of immovable property implies the ability of the owner, at his discretion, not only to own and use, but also to dispose of his property.

That is, the owner has the right, at his discretion, to perform any actions with respect to his property, including alienating (selling, changing, giving) this property is owned by other persons, to pledge the property, to lease it, to dispose of it in other ways (bequeath, etc.).

Sometimes there is an obstacle to achieving the goal of the owner exercising his right to dispose of real estate at his own discretion and for his own benefit.

A situation may arise that when making a real estate transaction, an error will be found in the title document – the discrepancy between personal data: the surname, first name, or patronymic of the owner with the data of the person making the transaction indicated in the identity document.

Establishing the facts of ownership, use and (or) disposal of property on the basis of ownership, economic management and operational management considered in a special procedure is essential for both citizens and legal entities ensuring the exercise of their rights and interests in this manner, as well as 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 the facts of ownership, use and (or) disposition of property on the basis of ownership, economic management and operational management 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 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.306 CPC); current legislation there is no other (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, use and (or) disposition of property on the basis of ownership, economic management and operational management, the judge, having established that there is a dispute about the right, in accordance with art.304 of the CPC, issues a ruling on leaving the application without consideration, in which he 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 of ownership, use and (or) disposition of property on the basis of ownership, economic management and operational management of immovable property. In accordance with the current legislation, ownership of immovable property is subject to state registration.

If the relevant registration authority is unable to issue the lost document, a judicial procedure is applied. In order for the court to establish the fact of ownership and use and (or) disposal of immovable property, the following conditions must be met::

only the fact of ownership and use and (or) disposal of immovable property is established.;

A refusal to issue a proper document has been received or it is impossible to restore it.;

there is no dispute about the ownership of real estate;

The applicant had a document on the ownership or use of real estate, but it was lost.

It is necessary to carefully check the presence or absence of title documents, as well as the absence of data on unauthorized buildings, and take into account that applications for establishing ownership of an unauthorized building, as well as a building previously registered in the name of another person, or acquired by the applicant through an improperly executed transaction, are not subject to special proceedings.

The fact of ownership of a building or other immovable property is established by the court if the applicant had a title document on the ownership of the building, but it is lost, and this fact cannot be confirmed out of court.

In support of this, the applicant must provide evidence of the impossibility of obtaining a proper document or the impossibility of restoring it.

Applications for establishing the fact of ownership of an unauthorized building, as well as a building previously registered in the name of another person or acquired by the applicant under an improperly executed transaction, are not subject to judicial review in special proceedings.

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 can establish the facts of ownership, use and (or) disposition of property on the basis of ownership, economic management and operational management.

The study of civil cases has shown that the courts generally resolve cases in this category correctly, however, mistakes are sometimes made in the application of substantive and procedural law.

The above-mentioned resolution of the Supreme Court of the Republic of Kazakhstan states that the facts of ownership, use and (or) disposition of property by right of ownership, economic management, operational management are established by the court only on condition that the applicant had a title document on ownership of the property, but it is lost, and the specified fact cannot be established out of court. At the same time, the court, when considering such cases, establishes only the fact of the existence of documents confirming the ownership of the applicant's property, and not his ownership right.

However, in practice, there are cases when the courts, in the absence of title documents, establish the facts of ownership, use and disposal, and even establish ownership of property.

It should be noted that judges often, when accepting applications for establishing ownership, use and disposition of property by right of ownership, assign powers to akims, the Land Management Committee, the Department of Architecture and Urban Planning, fire, sanitary and other state authorized bodies, registration authorities, as a result of which they make illegal decisions.

Courts should not accept for production and consider on the merits cases concerning conversion, restructuring, related to the removal of real estate from the housing stock to non-residential and changing the purpose of land plots for which there are title documents, which are authorized only by authorized bodies and services, and they are issued title documents.

When considering cases of this category, the courts must verify the evidence in the form of written documents submitted by the applicant, question witnesses about the circumstances, and assess the evidence of the circumstances referred to by the applicant.

Akimats, land management departments, architecture and urban planning departments, and others are involved as interested parties in the case, depending on the purpose of the applicant's application.

The operative part of the decision in cases of establishing the fact of ownership, use and (or) disposition of property on the basis of ownership, economic management and operational management, must contain: an indication of the distinguishing features of the property and the document that is lost or cannot be restored - the name, by whom and in whose name it was issued, the date of issue, the number, etc. like, last name, first name, patronymic of the person who owns the property and the title document.

Title documents in establishing the facts of ownership, use and (or) disposition of property on the basis of ownership, economic management and operational management may be, for example: purchase and sale agreements, privatization and legalization agreements, barter, donation of property, state acts on land, 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. items that are lost and cannot be restored.

Civil cases on establishing the facts of ownership, use and (or) disposition of property on the basis of ownership, economic management and operational management show that the existing judicial practice is basically uniform, and the norms of current legislation are applied correctly, and there are no particular difficulties.

Thus, the application is submitted to the court at the location of the applicant's property, the fact of ownership, use and (or) disposal of property on the basis of ownership, economic management and operational management is established. Upon receipt of the application, the court finds out from the applicant the existence of a legal interest in establishing the fact, requires the applicant to provide written evidence indicating the impossibility of obtaining or restoring proper the document certifying this fact, the specified circumstances are also confirmed by the testimony of witnesses., who must be questioned at a court hearing.

These circumstances arise due to the fact that the applicant had a title document on the ownership of the property, but it was lost, and this fact cannot be established out of court.

These cases are considered in a special procedure, and the court considers them 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 applicant, the representative of the person concerned, other persons involved in the case and their representatives, 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 – information about the facts can be obtained from explanations of the parties and third parties, witness statements, expert opinions, physical evidence, protocols of procedural actions, minutes of court sessions, audio, video recordings, data obtained by using videoconferencing systems that reflect the course and results of legal proceedings, and other sources.

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 facts of ownership, use and (or) disposition of property on the basis of ownership, economic management and operational management should contain: an indication of the distinguishing features of the property and the document that is lost and cannot be restored - the name, by whom and in whose name it was issued, the date of issue, number and the like, last name, first name, patronymic of the person who owns the property and the title document. 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.

Examples of reasoned and correct decision-making by the courts of the republic in this category, which satisfied the applications.

Thus, the Khromtau District Court of the Aktobe region considered a civil case on the application of JSC Kazchrome Multinational Company for establishing the fact of ownership, use and disposal of property by right of ownership, economic management, and operational management.

The applicant, JSC Multinational Company Kazchrome (hereinafter JSC TNK Kazchrome), filed the above-mentioned application with the court, arguing that, as the legal successor of JSC Donskoy GOK (formerly Donskoy Mining and Processing Plant), owns a privately owned land plot with a total area of 4,518,9450 hectares for the location and maintenance of production facilities. facilities for the extraction and processing of chromite ore, located at: Aktobe region, Khromtau district, cadastral number 02:034:026:006; 02:034:026:006:1. In order to confirm the right of private ownership of the land plot in the name of TNK Kazchrome JSC, the state registration authority issued information about the owner. The facilities of the northern ventilation shaft of the DNA mine of the Donskoy GOK, a branch of TNK Kazchrome JSC, are located on the specified land plot: an ABC with an annex (inv.number 1289), a superstructure complex (inv.number 10040), a lifting machine building (inv.number 10052). These facilities were built by the economic plant in the period from 1997 to 2001 and are used by the Donskoy GOK, a branch of TNK Kazchrome JSC. From the moment the facilities were put into operation to the present, TNK Kazchrome JSC bears the burden of maintaining the facilities, regularly paying taxes and carrying out necessary repairs. These facilities are on the balance sheet of Donskoy GOK, a branch of TNK Kazchrome JSC. The certificates of commissioning of these facilities have been lost. The documents of TNK Kazchrome JSC were not transferred to the archives of Khromtau district and Aktobe region. They are asking to establish the fact of ownership, use and disposal of property by right of ownership, economic management, operational management of real estate of the facilities of the northern ventilation shaft of the DNA mine of the Donskoy GOK, a branch of TNK Kazchrome JSC: ABC with an annex (inv.number 1289), superstructure complex (inv.number 10040), building lifting machine (inv.number 10052), located at Aktobe region, Khromtau district, cadastral number of the land 02:034:026:006.

In accordance with Part 1 of Article 305 of the Civil Procedure Code of the Republic of Kazakhstan, the court establishes the facts on which the emergence, change or termination of personal or property rights of citizens or legal entities depends. In accordance with paragraph 6, part 2 of the above-mentioned article, the court considers cases on establishing the facts of the existence of documents confirming the possession, 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 this fact cannot be established out of court.

In accordance with Article 306 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.

In accordance with paragraph 3 of 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", the impossibility of restoring a lost document should be understood as the absence of the ability of the relevant authority to issue a duplicate of the required document due to its loss or destruction.

In accordance with paragraph 8 of the above-mentioned Regulatory Resolution, the facts of ownership, use and (or) disposition of property on the basis of ownership, economic management, operational management are established by the court only on condition that 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.

At the same time, the court, when considering such cases, establishes only the fact of the existence of documents confirming the ownership of the applicant's property, and not his ownership right.

The court found that the land plot with a total area of 4,518.9450 hectares belongs to the right of private ownership of JSC Multinational Company Kazchrome, which is confirmed by the act on the right of private ownership of the land plot No. 002074062149 dated December 21, 2015.

TNK Kazchrome JSC has long-term asset facilities of the northern ventilation shaft of the DNA mine of the Donskoy GOK, a branch of TNK Kazchrome JSC: ABC with annex (investment number 1289) date of acquisition 05/01/1997, superstructure complex (investment number 10040)date of purchase: 12/24/2001, lifting machine building (inv.number 10052) date of purchase: 10/01/1999, these circumstances are confirmed by the inventory of long-term assets of TNK Kazchrome JSC.

According to the copy from the general plan of the Donskoy GOK production facilities, these facilities are located on a land plot owned by TNK Kazchrome JSC.

The impossibility of establishing the existence of documents confirming the ownership, use and (or) disposal of real estate objects is confirmed by an archival certificate provided by TNK Kazchrome JSC, which established that there is no working documentation and commissioning certificates for the above-mentioned objects in the archive of the Capital Construction Department (hereinafter referred to as ACS).

It was established that there were documents confirming the ownership, use and (or) disposal of real estate objects, namely the objects of the northern ventilation shaft of the DNA mine of Donskoy GOK, a branch of TNK Kazchrome JSC: ABC with annex (inv.number 1289)date of purchase 05/01/1997, superstructure complex (inv.number 10040)date of purchase 12/24/2001, lifting machine building (inv.number 10052) date of purchase 10/01/1999, located on a plot of land at the address: Aktobe region, Khromtau district, cadastral number 02:034:026:006 for JSC Multinational Company Kazchrome.

Examples of reasoned and correct decision-making by the courts of the republic, for which the application was refused.

So, on January 13, 2016, the Kokshetau City Court of the Akmola region considered a civil case on the application of Nagayeva R.A. to establish a fact of legal significance.

The applicant Nagayeva R.A. applied to the court to establish the fact of the applicant's possession, use and disposal of apartment No. 15 at 46 st.Saduakassova in Kokshetau, on the right of ownership.

It follows from the case file that the applicant Nagayeva R.A. moved into the apartment of HBC "Tselinny", located at 46-15 Saduakasov St., Kokshetau, on the basis of warrant No. 16/1317. According to certificate No. 1 dated 05.01.2011, the applicant Nagaeva R.A. paid in full on 21.10.1991 for a two-room apartment of the housing and construction cooperative "Tselinny" in the amount of 8,092 rubles.

According to paragraph 8 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On judicial practice in cases of establishing facts of legal significance" dated June 28, 2002, the facts of ownership, use and (or) disposition of property by right of ownership, economic management, operational management are established by the court only if the applicant had a title document on ownership of the property, but it has been lost, and this fact cannot be established out of court.

At the same time, the court, when considering such cases, establishes only the fact of the existence of documents confirming the ownership of the applicant's property, and not his ownership right. The applicant did not submit any evidence to the court that she had but had lost the title documents for the above-mentioned apartment.

According to the applicant's explanations, Nagayeva R.A. had no other documents for the apartment other than a warrant. According to the information of the Department of Justice of the city of Kokshetau, there is no registration file for the apartment located at 46-15 Saduakasov St., Kokshetau.

Thus, the applicant had previously had no title documents for the above-mentioned real estate object. In such circumstances, the judge correctly concluded that the stated claims should be refused.

The court's decision to satisfy Nagayeva R.A.'s application for establishing a fact of legal significance was refused.

Appeal against 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.

The right to appeal a court decision belongs to the parties and other persons involved in the case.

The right of appeal against the court's 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.

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 against 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 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.

Regulatory legal framework

The issues of establishing the facts of ownership, use and (or) disposition of property by right of ownership, economic management and operational management are regulated by Chapters 30, 31 of the Civil Procedure Code of the Republic of Kazakhstan, 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 the facts of ownership, use and (or) disposition of property by right of ownership, economic management and operational management, are:

- The Constitution of the Republic of Kazakhstan,

- The Civil Code of the Republic of Kazakhstan,

- The Civil Procedure Code of the Republic of Kazakhstan,

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

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

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

- The Law of the Republic of Kazakhstan "On amnesty of citizens of the Republic of Kazakhstan, oralmans and persons with a 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,

-The Law of the Republic of Kazakhstan "On Architectural, Urban planning and Construction activities",

- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 5 dated 12/19/2003 "On the 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 the facts of ownership, use and (or) disposition of property by right of ownership, economic management and operational management, other normative legal and by-laws governing issues related to a specific category of the case are subject to application.

 

 

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