Legal disputes related to licensing activities
Statements of claim of this category are accepted for court proceedings according to the rules of claim proceedings provided for in Chapter 14 of the Civil Procedure Code of the Republic of Kazakhstan and the Civil Code of the Republic of Kazakhstan.
When resolving cases of this category, courts are guided by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 5 "On judicial decision" and March 20, 2003 No. 2 "On the application by courts of certain norms of civil procedure legislation", etc.
In accordance with article 9 of the Civil Code, rights are protected by a court, arbitration or arbitration court by: recognizing rights; restoring the situation that existed before the violation of the right; suppressing actions that violate the right or threaten to violate it; awarding duties in kind; collecting damages, penalties; invalidating the transaction; compensation for moral damage; termination or change of legal relations; invalidation or non-enforceability of an act of a public administration body or a local representative body or official that does not comply with legislation for obstructing a citizen or a legal entity from acquiring or exercising a right, as well as by other means provided for by legislative acts."
Article 10 of the Civil Code, which provides for a mechanism for protecting entrepreneurs and consumers, stipulates that the production and sale of certain types of goods, works, and services is carried out under state licenses. The introduction of a licensing procedure for certain types of activities is established for the purposes of national security, law enforcement, protection of the environment, property, life and health of citizens. Licensing of certain types of activities is established in cases where the requirements for products established by the law of the Republic of Kazakhstan, the requirements for mandatory conformity assessment of certain types of products, processes and (or) state control over activities are insufficient to achieve the goals of public administration.
In accordance with Article 35 of the Civil Code, the legal capacity of a legal entity in the field of licensed activities does not arise at the time of its creation and registration, as established in Article 42 of the Civil Code, namely from the moment of obtaining the relevant license and ceases at the time of its withdrawal, expiration or revocation.
Thus, the absence of a license or an unjustified refusal to issue it essentially limits the general legal capacity of commercial legal entities and citizens.
At the same time, the Civil Code does not disclose the concept of a license, does not regulate the procedure for its issuance, revocation and suspension.
These issues are most fully covered in the Laws "On Banks and Banking activities in the Republic of Kazakhstan", "On Education", "On Individual entrepreneurship", "On State regulation of the production and turnover of ethyl alcohol and alcoholic products", "On Communications", "On advocacy", "On Notary", in Government resolutions and orders regulating the licensing procedure for certain types of activities.
In accordance with the Order of the Acting Minister of Justice of the Republic of Kazakhstan dated January 20, 2015 No. 10270 "On certain issues of licensing of advocacy and notarial activities", the procedure for issuing licenses to lawyers and notaries is provided.
The Order of the Minister of Justice of the Republic of Kazakhstan dated January 22, 2015 No. 32 "On approval of qualification requirements and a list of documents confirming compliance with them for the activities of private bailiffs" regulates the issues of the required qualification characteristics of the licensee.
The Law of the Republic of Kazakhstan dated May 16, 2014 "On Permits and Notifications No. 202-V SAM, which entered into force on January 01, 2015 regulates public relations related to the introduction of a permissive or notification procedure for the implementation of certain types of activities or actions by private business entities and other persons provided for by this Law.
Article 1 of the Law of the Republic of Kazakhstan "On Permits and Notifications" dated May 16, 2014 uses the following concepts:
A license is a first-category permit issued by the licensor to an individual or legal entity to carry out a licensed type of activity or a subspecies of a licensed type of activity associated with a high level of danger.;
Licensor is a government agency that performs licensing in accordance with this Law.;
licensee is a natural or legal person who holds a license; a subspecies of the licensed type of activity is a specification of the corresponding licensed type of activity under one license.;
licensing is a set of measures related to the issuance and reissue of a license and (or) appendices to the license and a duplicate license and (or) appendices to the license, the implementation of permissive control, suspension, renewal and termination of the license and (or) appendices to the license;
notification is a document drawn up by the applicant in accordance with the form approved by the authorized body in the field of permits and notifications or the National Bank of the Republic of Kazakhstan, informing about the beginning or termination of an activity or action.;
Notification procedure is the establishment of the obligation of an individual or legal entity to notify the state body responsible for receiving notifications in accordance with the procedure established by this Law prior to the commencement of activities or actions.;
By virtue of subparagraph 3 of Part 3 of Article 3 of the Law of the Republic of Kazakhstan "On Permits and Notifications", this law applies to relations related to the issuance, revocation and suspension of a license.
The disputes considered on the merits in cases of this category are divided as follows: disputes related to the revocation of a license, disputes related to the suspension of a license.
In accordance with Article 2 of the said Law of the Republic of Kazakhstan "On Permits and Notifications", the legislation of the Republic of Kazakhstan on permits and notifications is based on the Constitution of the Republic of Kazakhstan and consists of this Law and other regulatory legal acts of the Republic of Kazakhstan.
In accordance with Article 3. this Law applies to all permits and notifications in the Republic of Kazakhstan that simultaneously meet the following criteria::
1) a permit must be obtained and a notification sent by an individual or legal entity to initiate an activity or action (operation);
2) obtaining a permit (except for an accompanying permit) and sending a notification in accordance with the requirements of regulatory legal acts of the Republic of Kazakhstan are mandatory for the circle of persons established by the legislation of the Republic of Kazakhstan, and carrying out activities or actions (operations) without obtaining them, it entails criminal or administrative liability.;
3) the issuance of a permit and the receipt of a notification are carried out by authorized state bodies or officials of authorized state bodies;
4) the bodies issuing permits are authorized to verify compliance with the requirements established by regulatory legal acts, and in case of non-compliance with the requirements established by the legislation of the Republic of Kazakhstan, refuse to issue permits, etc.
By virtue of subparagraph 3 of part 3 of Article 3 of the said law, this law applies to relations related to the issuance, revocation and suspension of a license.
The Law "On Permits and Notifications" regulates public relations related to the introduction of a permissive or notification procedure for the implementation of certain types of activities or actions by private business entities and other persons provided for by this Law.
In accordance with the rules of the procedural law on jurisdiction, the claim is filed at the location or place of residence of the defendant. In this case, the location of the organization or institution is the place of its state registration as a legal entity, as indicated in the certificate of state registration and constituent documents.
Civil cases on disputes related to the revocation of a license are considered according to the rules of jurisdiction established by Chapter 3 of the CPC.
For example: By the ruling of the Shemonaikha District Court of the East Kazakhstan region dated June 10, 2015, the statement of claim of the State Institution "Management of Passenger Transport and Highways of East Kazakhstan region" against individual entrepreneur Mikhail Fedorovich Shevchenko for revocation of the license for the right to engage in passenger transportation activities was returned.
The court found that the disputed legal relations between the State Institution "Management of Passenger Transport and Highways of East Kazakhstan Region" and the individual entrepreneur M.F. Shevchenko are subject to review and resolution by the specialized interdistrict economic court of the East Kazakhstan region.
In accordance with subparagraph 2) paragraph 1 of Article 154 of the CPC, the judge returns the statement of claim if the case is not within the jurisdiction of the court, and therefore this statement is returned to the applicant with all the documents attached to the application. The applicant has been informed of his right to file this claim with the specialized interdistrict economic court for the East Kazakhstan region (East Kazakhstan region, Ust-Kamenogorsk).
When considering cases of revocation of a private notary's license, the courts of the Republic lawfully follow the norms of the Law "On Notaries".
So: by the decision of the Al-Farabi district Court of Shymkent, the claim of the Ministry of Justice of the Republic of Kazakhstan to the private notary Altyn Ermekzy Aly for revocation of the license was satisfied. It was decided: to deprive a private notary of the license for the right to engage in notarial activity for No. 003260 dated 02/09/2011.
In accordance with Article 18 of the Law of the Republic of Kazakhstan "On Notaries", a notary is obliged to perform notarial acts in accordance with the requirements of the law, keep confidential information that has become known to him in connection with his professional activities, and observe professional ethics.
The Notary's Code of Honor of the Republic of Kazakhstan was developed in accordance with the Law of the Republic of Kazakhstan "On Notaries", the Charter of the Republican Notary Chamber as an expression of notaries' understanding of the responsible nature of notarial activity and the high requirements for fulfilling the professional duty of a notary, approved by the Republican Congress of Privately Practicing Notaries on February 16, 2001.
The court, having established that private notary Altyn Ermekzy Ali, being a private notary during the period of his activity, repeatedly committed violations of the law that harmed the interests of the state, individuals and legal entities, came to the conclusion about the legality and validity of the claims made by the plaintiff and their satisfaction.
Having established the above circumstances, the court came to the correct conclusion about the satisfaction of the claim. The court's decision has entered into legal force.
It can be seen from this judicial act that the court makes reference to Article 49 of the law "On Licensing", which has become invalid and in force since January 01, 2015.
When considering this category of cases, one should be guided by the Law "On Permits and Notifications" dated May 16, 2014, which entered into force and has been in force since January 01, 2015, and the Order of the Acting Minister of Justice of the Republic of Kazakhstan dated January 20, 2015 No. 20 "On certain issues of licensing of advocacy and notary activities."
For example: By the decision of the Court No. 2 of Aktau, Mangystau region, the claim of the Republican state Institution "Department of Justice of the Mangystau region of the Ministry of Justice of the Republic of Kazakhstan" to Kulzhanov Asan Bekniyazovich on termination of the state license for the right to engage in the activities of a private bailiff was denied.
It follows from the case file that A.B. Kulzhanov, while working as a state bailiff of the Aktau Territorial Department of Bailiffs of the Department for the Enforcement of Judicial Acts of the Mangystau region, received a state license for the right to engage in the activities of a private bailiff dated 07/16/2013 for No. 800.
Based on the order of the head of the Department for the Enforcement of Judicial Acts of the Mangystau region dated 11/01/2013, No. 91-ZHK Kulzhanov A.B. was dismissed from his position as a state bailiff for negative reasons for improper performance of his official duties.
In this regard, in accordance with the Rules of the competition for the vacant position of a private bailiff, he was denied admission to participate in the said competition.
By virtue of paragraph 2 of Article 140 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs", "a private bailiff may not be a person who has previously been dismissed for negative reasons from government, military service, law enforcement and special state bodies, courts and judicial authorities ...".
Based on the above, the Ministry of Justice of the Republic of Kazakhstan A.B. Kulzhanov was denied admission to participate in the competition to fill the vacant position of a private bailiff.
The termination of the license of a private bailiff is regulated by Article 144 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs", according to paragraph 1 of which "In addition to the general grounds provided for by the legislation of the Republic of Kazakhstan on permits and notifications, the termination of the license of a private bailiff is carried out in court at the request of the authorized body in the following cases:
1) repeated violations of the legislation of the Republic of Kazakhstan, including those that caused damage to the interests of the state, individuals and legal entities;
2) failure to eliminate the reasons why the license of a private bailiff has been suspended;
3) establishing the fact of providing false or intentionally distorted information in the documents that were the basis for issuing a license to a private bailiff;
4) excluded by the Law of the Republic of Kazakhstan dated 05/16/2014.;
5) failure by the acting private bailiff to carry out activities for the execution of enforcement documents for more than three days without a valid reason;
6) in case of inability to perform professional duties due to health reasons;
7) engaging in other types of paid activities, with the exception of scientific, teaching or creative activities; 8) exclusion from the Republican Chamber.
The Court of first instance concluded that Article 144 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the status of Bailiffs" provides an exhaustive list of grounds for termination of the license of a private bailiff in court at the request of an authorized body, which does not provide grounds for termination of the license of a private bailiff in connection with the dismissal of a person. from public service for negative reasons.
At the same time, the requirement of paragraph 4 of the Rules of the competition for the vacant position of a private bailiff, approved by the Order of the Acting Minister of Justice of the Republic of Kazakhstan dated 07.03.2014 No. 99, is the basis for refusal of admission to participate in the competition, in paragraph 1 of Article 35 of the Law of the Republic of Kazakhstan "On Permits and Notifications" dated 16.05.2014 No. 202-V There are also no grounds for termination of the license in connection with the dismissal of a person from public service for negative reasons.
In this regard, the dismissal of a person from public service for negative reasons is only the basis for refusal of admission to participate in a competition to fill a vacant position of a private contractor, but not the basis for termination of such a license in court.
The court considered the arguments of the plaintiff's representative that art. 144 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the status of Bailiffs" applicable in the event of termination of the license of existing private bailiffs to be unfounded, because there are no other provisions of the law governing the termination of the license of a private bailiff in court.
Thus, the court came to the conclusion that it refused to satisfy the claim for termination of the license in court. To the author, the given conclusion of the court of first instance is controversial, subject to discussion on the following grounds:
Paragraph 1 of Article 144 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" provides for the termination of the license of a private bailiff to be carried out in court at the request of the authorized body in the following cases:: 1) repeated violations by a private bailiff of the legislation of the Republic of Kazakhstan, the code of professional practice of private bailiffs when performing enforcement actions, or a single gross violation of the legislation of the Republic of Kazakhstan, which caused damage to the interests of the state, individuals and legal entities.
The court of first instance did not fully specify the disposition of clause 1 of Article 144 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the status of Bailiffs" in the judicial act, omitting the words "Code of professional conduct of private bailiffs when performing enforcement actions or a single gross violation of the legislation of the Republic of Kazakhstan."
The court also did not pay attention to Articles 143,144 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the status of Bailiffs", which does not provide for the dismissal of a private bailiff by order of the head of the Department for the Execution of Judicial Acts, and these articles regulate the suspension or termination of the license of a private bailiff at the request of the authorized body, filed on the basis of a decision of the disciplinary commission.
In such circumstances, since Kulzhanov A.B. was dismissed from his post on negative grounds for improper performance of official duties, the claim of the authorized body was subject to satisfaction. The court's decision has not been appealed or protested, and has entered into legal force.
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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