Material damage-a claim for the production of material damage, the amount of which the court can determine at its discretion, is not a moral damage, the amount of which can be determined by actual accounting documents with quantitative data
K. the statement of claim filed with the court states that he is a disabled person of Group 2, is engaged in private entrepreneurship, in 2009 he started the construction of his own restaurant "holiday", after its construction, the defendant entered into an oral agreement with U. to cover the exterior of the restaurant with Alucobond material, but after the completion of this work, the materials outside the restaurant fell out less than a month, and then he applied to the defendant to restore the poor-quality work, however, the defendant refused, fled, and then left such requests without a leg, According to the report No. 121 of" Mangystau Center for auctions and property valuation " LLP, it was found that damage was caused to him by poor-quality work of the defendant in the amount of 1,184,500 tenge, and the defendant asked U. to recover material damage in the amount of 1,184,500 tenge. By the decision of the Zhanaozen City Court of September 13, 2012, the claim of the plaintiff K. was fully satisfied, and material damage was collected from the defendant U. in his favor in the amount of 1,184,500 tenge. By the decision of the Appellate Judicial Board in civil and administrative cases of the Mangistau regional court, the court decision was left unchanged. The court of Cassation, in turn, left the decision of the court of Appeal unchanged. U. in the appeal of the Supreme Court to the supervisory judicial board for civil and administrative cases, due to the incorrect application of the norms of material and procedural law by the courts, a new decision was made to cancel the disputed judicial acts and leave the claim of K. unsatisfied. The supervisory judicial board checked the documents of the case and the arguments of the appeal, heard the conclusion of the prosecutor that it is necessary to cancel the disputed judicial acts and send the case to the appeal judicial board for a new consideration, and concluded that the appeal is subject to satisfaction on the following grounds.
Material damage-a claim for the production of material damage, the amount of which the court can determine at its discretion, is not a moral damage, the amount of which can be determined by actual accounting documents with quantitative data
In accordance with Part 3 of Article 387 of the Code of Civil Procedure of the Republic of Kazakhstan (hereinafter referred to as the code of civil procedure), a significant violation of material norms or procedural law is the basis for reviewing decisions, rulings, decisions of the court that have entered into legal force in the order of supervision. In the case, such shortcomings are allowed. As it turned out in the case, in August 2010, the parties concluded an oral agreement, under which the defendant was obliged to perform the work and installation of the exterior of the restaurant "Mereke" with Alucobond material, and the plaintiff, after completing the work, paid the defendant 170,000 tenge. To do this work, the plaintiff personally handed over Alucobond and other necessary building materials to the defendant. This fact is not denied by the parties. In October 2010, the defendant completed the work of coating the exterior of the building with Alucobond material, the plaintiff accepted the work done and paid the agreed 170,000 tenge to the defendant. This is confirmed by the defendant's receipt of October 21, 2010 and is not refuted by the parties. However, the plaintiff applied to the court with a request to recover material damage from the defendant in the amount of 1,184,500 tenge, taking into account the costs of purchasing building materials, due to the fact that the majority of Alucobond packed outside the restaurant due to poor-quality work of the defendant. The judicial instances concluded that due to the poor quality of the planned work under the contract concluded orally by the defendant, the material costs for the purchase of building materials are subject to recovery from the defendant and decided to recover from him 1,184,000 tenge in favor of K. However, the supervisory judicial board does not agree with these judicial conclusions due to the following considerations. In accordance with the requirements of articles 64, 66 of the code of Criminal Procedure, Evidence in the case is factual data obtained legally, which the court establishes in accordance with the procedure provided for by law the presence of circumstances justifying the claims and objections of the parties, as well as other circumstances that are relevant for the correct resolution of the case. These specific data are determined, including by the comments of the parties. Circumstances significant for the correct resolution of the case are determined by the court on the basis of claims and objections of the parties and other persons participating in the case. The courts, when satisfying the claim, used as evidence the assessment report submitted by the plaintiff's party as a basis.The assessment report is not irrefutable evidence of causing material damage, since it must be evaluated in combination with other evidence.
Material damage is not moral damage, the amount of which the court can determine at its discretion. Material damage is a mathematical, quantitative concept that must be confirmed by sufficient and convincing evidence, and there is no quantitative evidence of material damage caused to the plaintiff K. in the case. In particular, the plaintiff must prove the cost of the purchased building materials with specific documents, that is, provide the court with receipts, bills or other payment documents for the purchase of building materials. If there are questions that raise doubts about the documents, the court has the right to appoint an examination on its own initiative. The plaintiff K. could not prove the material damage caused to him in court in accordance with Article 65 of the code of criminal procedure. Therefore, the conclusion of the judicial instances that the defendant caused material damage to K. in the amount of 1,184,000 tenge due to poor performance of the work established under the contract concluded orally by U. is unreasonable and contradicts the norms of the law. Since the violations committed by the judicial instances are gross, the supervisory judicial board, guided by the requirements of Paragraph 3 of Article 387 of the code of criminal procedure and normative Resolution No. 2 of the Supreme Court of the Republic of Kazakhstan dated March 20, 2003"on the application by courts of certain norms of Civil Procedure legislation", considers it necessary to cancel the force of judicial acts adopted in the case, to make a new decision on leaving the claim of plaintiff K. without satisfaction.
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