Fulfillment of obligations under the contract
As a rule, the subject of the plaintiff's claims is indicated: the customer's debt to the contractor for payment for the work performed; penalty for delay in the performance of work under the contract; recognition of the supplier as an unscrupulous participant in public procurement; recognition of unilateral acts of completed work as valid.
The general concept of a work contract is contained in paragraph 1 of Article 616 of the Civil Code, which states that under a work contract, one party (contractor) undertakes to perform certain work on behalf of the other party (customer) and deliver its result to the customer within the prescribed period, and the customer undertakes to accept the result of the work and pay for it (pay the price of the work).
The work is performed at the contractor's risk, unless otherwise provided by legislation or contract. Civil legislation also provides for certain types of contracts, such as a household contract, a construction contract, a contract for design or survey work, a contract for scientific research, development and technological work, which have special features and are regulated by independent norms of the Civil Code.
A special feature of a domestic contract is that such a contract is concluded between a citizen-customer and a contractor engaged in entrepreneurial activity to meet the domestic or other personal needs of a citizen, and the law provides for the unilateral refusal of the customer to deliver the results of the work to him.
The terms of the contract that deprive the customer of this right are invalid (Articles 640,641 of the Civil Code).
A special feature of the construction contract is that the contractor is obliged to carry out construction and related work in accordance with the project documentation, which defines the scope and content of the work, and other requirements for the work, and the estimate that determines the price of the work (Article 654 of the Civil Code).
The peculiarity of the contract for design and survey work is that the customer is obliged to transfer to the contractor the design assignment, as well as other initial data necessary for drawing up design and estimate documentation, and the risk of accidental impossibility of executing the contract for design and survey work lies with the customer.
The peculiarity of the contract for scientific research, experimental design and technological work is that the contract with the contractor (contractor) can cover both the entire cycle of research, development and manufacture of samples, as well as their individual elements, and also that the contractor (contractor) is obliged to carry out scientific research personally. Unless otherwise provided by the contract, he has the right to involve third parties in the execution of the contract for scientific research work only with the consent of the customer (Articles 674,675 of the Civil Code).
The difference between a contract and other contracts, and in particular a contract for the provision of paid services, where the contractor is required to provide services personally (Article 684 of the Civil Code), is that the contractor has the right to involve other persons (subcontractors) in the execution of the contract. In this case, the contractor acts to the customer as the general contractor, and to the subcontractor as the customer (Article 619 of the Civil Code).
At the same time, it should be borne in mind that according to subparagraph 5-1) of paragraph 1 of Article 6 of the Law on Public Procurement, a potential supplier is not entitled to participate in ongoing public procurement if the potential supplier and (or) the subcontractor (co-executor) attracted by him have unfulfilled obligations under executive documents and are included by the authorized body in the field of enforcement of executive documents in the corresponding register of debtors.
Thus, the requirements imposed on the contractor fully apply to the subcontractor.
Civil legislation defines both the rights and obligations of the customer and the contractor, both at the conclusion of the contract and at the fulfillment of contractual obligations.
Article 629 of the Civil Code stipulates that the customer is obliged to assist the contractor in carrying out the work to the extent and in accordance with the procedure provided for in the contract.
If the customer fails to fulfill this obligation, the contractor has the right to demand compensation for damages, including additional costs caused by downtime or postponement of work deadlines, or an increase in the price of work.
In cases where the performance of the work under the contract has become impossible due to the actions or omissions of the customer, the contractor retains the right to pay him the set price, taking into account the completed part of the work.
The contractor's obligations in the course of work are contained in Article 628 of the Civil Code, according to which the contractor is obliged to immediately notify the customer and, until receiving instructions from him, suspend work if it is detected.:
unsuitability or poor quality of materials, equipment, technical documentation provided by the customer, or items transferred for processing;
possible adverse consequences for the customer of following his instructions on how to perform the work;
other circumstances beyond the contractor's control that threaten the validity or durability of the results of the work performed or make it impossible to complete it on time.
A contractor who has failed to notify the customer of the circumstances specified in paragraph 1 of this article, or who has continued work without waiting for a reasonable time to respond to the warning or, despite the timely instruction of the customer to suspend work, is not entitled to refer to these circumstances when making appropriate claims against him or the customer.
If the customer, despite timely and reasonable warning from the contractor about the circumstances specified in paragraph 1 of this article, does not replace the unsuitable or substandard material within a reasonable period of time, does not change the instructions on how to perform the work, or does not take other necessary measures to eliminate the circumstances threatening the suitability or durability of the work, the contractor has the right to withdraw from the contract. and to demand compensation for the losses caused by its termination.
In judicial practice, disputes often arise related to the violation of the deadlines for the performance of contract work, which entails the application of penalties in the form of penalties, therefore it is necessary to determine the date of entry into force of the contract.
According to paragraph 1 of Article 386 of the Civil Code, the contract enters into force and becomes binding on the parties from the moment of its conclusion.
At the same time, paragraph 1 of Article 40 of the Law on Public Procurement stipulates that the public procurement contract enters into force after it is signed by the customer and the supplier or the latter makes full payment to ensure the execution of the contract provided for in the tender documentation.
If the public procurement contract is subject to registration, it shall enter into force after its registration in accordance with the legislation of the Republic of Kazakhstan.
Thus, when considering disputes related to public procurement based on the contractor's violation of the terms of the contract, the courts must take into account the time of entry into force of the contract, according to the provisions contained in the Law on Public Procurement.
Acceptance of completed works is also the responsibility of the customer. In accordance with paragraph 4 of Article 663 of the Civil Code, the delivery of the results of work by the contractor and their acceptance by the customer are formalized by an act signed by both parties, and in cases provided for by legislative acts, also by representatives of state bodies and local governments.
If one of the parties refuses to sign the act, a note about it is made in it, and the act is signed by the other party.
A unilateral act of handing over or accepting the results of work may be recognized by a court as valid only if the reasons for refusing to sign the act are recognized by the court as unfounded.
When considering cases on claims for recognition of a unilateral act of completed work by the courts, the norms of substantive law are generally applied correctly.
According to claims for recovery of penalties from the contractor (subcontractor) in favor of the customer (contractor), it can be concluded that the amount of penalties claimed by the plaintiff by the courts is mainly decreasing.
At the same time, the courts are guided by both Article 297 of the Civil Code, which states that if the penalty to be paid is excessively large compared to the creditor's losses, the court has the right to reduce the penalty, taking into account the degree of fulfillment of obligations by the debtor and the interests of the debtor and the creditor that deserve attention, and Article 364 of the Civil Code, which implies that the court reduces the amount of liability of the debtor if the creditor intentionally or negligently contributed to an increase in the amount of losses caused by non-performance or improper performance, or did not take reasonable measures to reduce them.
Thus, the specialized interdistrict economic court of the Kyzylorda region considered a civil case on the claim of JV Accord Okan LLC against Bolashak NT LLP for the recovery of arrears and penalties.
The plaintiff's claims are based on the defendant's violation of the terms of the contract, therefore, the plaintiff asked the court to recover from the defendant the amount of debt in the amount of 33,430,000 tenge and a penalty in the amount of 3,759,300 tenge.
The court partially satisfied the claims of JV Accord Okan LLC for the recovery of a penalty in the amount of 3,759,300 tenge and recovered a penalty in the amount of 1,000,000 tenge from the defendant, motivating its conclusions in the decision with reference to Article 297 of the Civil Code, indicating that the plaintiff did not take timely measures to recover the debt, as a result of which the amount of the penalty became excessively large compared to the amount owed.
The grounds for the return of claims in the definitions are mainly indicated such as:
failure to eliminate deficiencies within the time limit set by the judge, after leaving the application without movement;
The plaintiff's failure to comply with the pre-trial dispute resolution procedure established by the agreement or the legislation of the Republic of Kazakhstan for this category of cases and the possibility of applying this procedure has not been lost.;
signing of the application by a person who does not have the authority to sign it; beyond the jurisdiction of this court.
According to paragraph 11 of the Regulatory Resolution, the reasoning part of the reasoned decision must contain the circumstances of the case established in accordance with part 2 of Article 64 of the CPC by means of evidence – explanations of the parties and third parties, testimony of witnesses, physical evidence, expert opinions, protocols of procedural actions and other documents.
When considering civil cases on disputes arising from work contracts, the courts had questions regarding the application of paragraph 13 of article 37 of the Law on Public Procurement, which states that in case of non-fulfillment or improper fulfillment of obligations assumed by the supplier under the public procurement contract, the customer is obliged to take measures no later than ten working days after the end of the financial year. to collect a penalty in the income of the relevant budget, state-owned enterprise, legal entity, fifty or more percent of the voting shares (stakes in the authorized capital) of which belong to the state, or legal entities affiliated with them.
The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 5 dated December 14, 2012 "On the application of legislation on public procurement by courts" does not address the issue of whether the ten-working-day period for the customer to take measures to recover a penalty is a preemptive or shortened limitation period, therefore, when the defendant submits a motion to dismiss the claim in connection with With the omission of this deadline, the courts were guided by the norms of the Civil Code regarding the application of the general statute of limitations.
From the literal interpretation of the substantive law governing legal relations in the field of work contracts, it can be concluded that such contracts are concluded in writing, since it is impossible to determine its essential terms from an oral work contract, which is mandatory when concluding a contract (Article 393 of the Civil Code).
As can be seen from Articles 630 and 663 of the Civil Code, acceptance of completed works is formalized by an act, and if the customer finds deficiencies in the work, drawing up such an act is mandatory.
According to part 2 of Article 68 of the CPC, the circumstances of the case, which by law must be confirmed by certain evidence, cannot be confirmed by any other evidence.
Thus, the contractor's performance of the scope of work can be confirmed by written evidence, such as an act of completed work or another document.
At the same time, in some cases, the courts, when considering disputes about the scope of work performed, on recognizing a unilateral act of work performed as valid, accept as evidence the testimony of witnesses about the fact of their participation in the performance of a certain type of work, and based on the testimony of witnesses satisfy or refuse to satisfy the claims.
At the same time, the courts violate the requirements of Article 77 of the CPC in that the totality of evidence is considered sufficient to resolve a civil case if acceptable and reliable evidence has been collected that indisputably establishes the truth about each and every one of the circumstances to be proved, or has not been refuted by the party.
The procedure for considering the case in the absence of the defendant is regulated by Articles 187 and 260 of the CPC.
All courts of the republic, in their decision, refer to part 4 of Article 187 of the CPC, which states that the court has the right to consider the case if any of the persons involved in the case fail to appear, duly notified of the time and place of the court session, if it finds the reasons for their non-appearance disrespectful. The court has the right to consider the case in the absence of the defendant, who was duly notified of the time and place of the court session, in absentia, if there is no information about the reasons for his non-appearance, or the court recognizes the reasons for his non-appearance as disrespectful, or recognizes that the defendant intentionally delays the proceedings.
Regulatory acts
The Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code);
The Law of the Republic of Kazakhstan "On Public Procurement" (hereinafter – the Law on Public Procurement);
The Law of the Republic of Kazakhstan "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan" (hereinafter – the Law on Architectural Activities);
normative resolutions of the Supreme Court of the Republic of Kazakhstan:
No. 21 of December 13, 2001 "On the preparation of civil cases for trial";
No. 2 of March 20, 2003 "On the application by courts of certain norms of civil procedure legislation";
No. 5 of July 11, 2003 "On the court decision";
No. 5 dated December 14, 2012 "On the application of legislation on public procurement by Courts".
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