On judicial practice in cases of establishing facts of legal significance

Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated June 28, 2002 No. 13.

      In order to ensure the correct and uniform application of legislation in the consideration of civil cases on the establishment of facts of legal significance, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:

To draw the attention of the courts to the fact that cases on the establishment of facts of legal significance are initiated at the request of citizens, organizations, as well as other persons who, according to the law, have the right to apply to the court to protect the interests of other persons (Articles 55, 62 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC)) and are characterized by the possible presence of a dispute about the fact, but the absolute absence of a dispute about the law. If the applicant has filed applications for the establishment of several facts of legal significance, the courts have the right to consider these claims in one proceeding.

     The footnote. Paragraph 1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

The courts may accept an application for the establishment of facts of legal significance and consider such cases in a special procedure if:

      according to the law (part one of Article 305 of the CPC), 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 (Article 306 of the CPC);

     the current legislation does not provide for a different (non-judicial) procedure for their establishment (Article 306 of the CPC);

      the establishment of a fact is not associated with the subsequent resolution of a dispute on the law under the jurisdiction of the court (part two of Article 304 of the CPC).

     The footnote. Paragraph 2 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

During the preparation of the case for trial, the court must find out from the applicant whether there is a legal interest in establishing the fact, and require written evidence from the applicant 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 inability to recover a lost document should be understood as the inability of the relevant person to issue a duplicate of the required document due to its loss or destruction.

     Courts should distinguish the pre-trial dispute resolution procedure from the out-of-court procedure for establishing a legal fact.

      An out-of-court procedure for establishing a fact should be understood as the procedure provided for by legislative acts, in which it is possible, by contacting a government agency, organization, or other person, to obtain or restore proper documents certifying a legal fact.

      If the current legislation provides for a different (non-judicial) procedure for their establishment, then the court in accordance with subparagraph 1) The application must be refused in the first part of Article 151 of the CPC.

      In case of erroneous acceptance of the application and initiation of the case, it is subject to termination on the basis of subparagraph 1) of Article 277 of the CPC.

     The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 6 (effective from the date of its official publication).

      3-1. When resolving the issue of the existence or absence of a dispute over law, the courts, in order to prepare the case for trial, should find out for what purpose the applicant needs to establish a legal fact, what legal relations may arise when establishing it, and whether there are other persons who may become participants in these legal relations.

     The presence of such persons who wish or have entered into a relevant legal relationship may indicate the existence of a dispute over the law.

      If, when taking actions to prepare the case for trial, or when considering the case on its merits, the judge determines that there is a dispute over the law under the jurisdiction of the court, he is obliged to rule on leaving the application without consideration on the basis of subparagraph 13) of Article 279 of the CPC and explain to the applicant and other interested persons their right to appeal to the court in the procedure of the claim proceedings.

     The establishment of the existence or absence of a dispute over law is necessary to distinguish the type of civil proceedings in order to properly resolve the case.

     Cases cannot be considered a significant violation of the rules of procedural law when, in the absence of a dispute about the law, the court issued an erroneous ruling on leaving the application without consideration and recommended that the applicant apply to the court in the order of the claim proceedings.

      A dispute over the right may not arise when establishing the legal fact of registration of birth, adoption, marriage, divorce and death (subparagraph 3) of the second part of Article 305 of the CPC), ownership of title documents (except for military documents, passports, identity cards and certificates issued by authorized bodies) to a person, name, patronymic or whose last name, indicated in the document, does not match the first name, patronymic or surname of this person on the passport or identity card, or birth certificate (subparagraph 5) of the second part of Article 305 of the CPC), an accident, unless it can be confirmed in another manner (subparagraph 7) of the second part of Article 305 of the CPC), the death of a person at a certain time under certain circumstances in the event of a refusal by the civil registration authorities to register the death (subparagraph 8) of the second part of Article 305 of the CPC).

     The footnote. The regulatory resolution was supplemented by paragraph 3-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 6 (effective from the date of its official publication).

The fact of kinship according to subparagraph 1) of the second part of Article 305 of the CPC is established in court only in cases where the degree of kinship directly generates legal consequences, for example, if the establishment of such a fact is necessary for the applicant to obtain a certificate of inheritance rights, registration of the right to receive survivor's benefits.

      The establishment of the fact of kinship relations, as a rule, can take place in cases where relatives cannot confirm this fact by presenting relevant documents.

     It should be borne in mind that the relationship between parents and children, brothers, sisters, grandparents, who are heirs of the first and second line, can be documented by presenting certificates of registration of acts of civil status (birth certificates, registration certificates, marriage dissolution, etc.), therefore, interested persons submitting applications on the establishment of the fact of kinship relations, as a rule, the heirs of subsequent generations are the ones to enter into the right of inheritance., except for the first and second (cousins, uncles, aunts, etc.).

      The spouses are not blood relatives, therefore the fact of kinship between them cannot be established.

     The fact of a kinship relationship for the purpose of accepting an inheritance cannot be established on the grounds that the deceased recognized himself as the applicant's father during his lifetime.

     The footnote. Paragraph 4 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 6 (effective from the date of its official publication).

The courts should keep in mind that the establishment of the facts of a dependent person (subparagraph 2) of the second part of Article 305 of the CPC) is of legal importance for obtaining inheritance (Article 1068 of the CC) survivor's benefits (Article 940 of the CC), and in other cases provided for by law.

      At the same time, it should be borne in mind that in cases where the applicant had earnings, received a pension, scholarship, etc., it is necessary to find out whether the assistance from the person providing the maintenance was a permanent and main source of livelihood.

      Only disabled family members of the deceased who were dependent on him have the right to receive survivor's benefits.

     The footnote. Paragraph 5 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 2 (effective from the date of the first official publication); dated 04/20/2018 No. 6 (effective from the date of its official publication).

When considering cases on establishing the facts of registration of birth, adoption, marriage, divorce, and death (subparagraph 3) of the second part of Article 305 of the CPC), courts should keep in mind that the court does not establish the events themselves, but the fact 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.

     Cases on establishing the fact of being in an actual marital relationship in accordance with this paragraph cannot be considered.

The footnote. Paragraph 6 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

According to the requirements for establishing the fact that title documents belong 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 on a passport or identity card or birth certificate (subparagraph 5) of the second part of Article 305 of the CPC) at the stage of accepting the application, and if accepted When preparing a case for trial, the courts should require the applicant to provide evidence that the title document belongs to him and the organization that issued it., it is not possible to make appropriate corrections to it.

      The courts have no right to establish the fact that military documents, passports, identity cards and certificates issued by civil registration authorities belong to a particular person.

     At the same time, it should be borne in mind that in connection with the liquidation of the USSR and its organs, the courts have the right to establish the facts of certificates belonging to orders and medals to a person whose name, patronymic or surname indicated in these documents do not match the name, patronymic or surname of this person on a passport or identity card, or a birth certificate. At the same time, the decision to establish such facts should be based on a set of evidence reliably attesting to the identity of such documents to the applicant.

     The footnote. Paragraph 7 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

The fact of the existence of documents confirming the possession, use and (or) disposal of immovable property may be established 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 by virtue of subparagraph 6) of the second part of Article 305 of the CPC.

     Such a fact cannot be established if an error is made in the title documents on the ownership of the property.

     Such a fact cannot be established in a special procedure if the applicant's appeal is related to the existence of claims to this property by other persons.

     The footnote. Paragraph 8 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 6 (effective from the date of its official publication).

When considering cases on establishing the fact of an accident (subparagraph 7) of the second part of Article 305 of the CPC), it should be borne in mind that the court has the right to establish such a fact only if the possibility of its establishment in an extrajudicial manner is excluded.

     An application for the establishment of such a fact may be accepted for court proceedings when the accident report was not drawn up, and it is not possible to draw it up at the time of the appeal, when the report was drawn up, but was subsequently lost, and it is not possible to restore it out of court, when an error was made in drawing up the act, preventing recognition. the fact of an accident, and it is impossible to eliminate it.

      When considering an application for establishing the fact of an accident, the court does not have the right to determine the causes and degree of disability, the group and time of disability.

     The operative part of the decision must contain information to be reflected in the accident report in the form approved by the authorized labor body (Article 190 of the Labor Code of the Republic of Kazakhstan).

     The footnote. Paragraph 9 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 2 (effective from the date of the first official publication); dated 04/20/2018 No. 6 (effective from the date of its official publication).

An application for establishing the fact of a person's death at a certain time under certain circumstances (subparagraph 8) of the second part of Article 305 of the CPC) is accepted for court proceedings and is considered only when the applicant submits a document on the refusal of the civil registry office to register the death event.

     The decision to grant an application must be based on evidence that reliably attests to the death of a person at a certain time and under certain circumstances.

     The footnote. Paragraph 10 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

An application for establishing the fact of acceptance of an inheritance (subparagraph 9) of the second part of Article 305 of the CPC) may be considered in a special procedure if the body performing notarial acts is not entitled to issue a certificate of inheritance rights to the applicant due to the absence or insufficiency of relevant documents necessary to notarize the fact of taking possession of the inheritance property.

      If the necessary documents are submitted, but the issuance of a certificate of inheritance is refused, the applicant has the right to file a complaint with the court against the refusal to perform a notarial act in accordance with the provisions set out in Chapter 45 of the CPC.

     The courts should bear in mind that such facts can be established if the inheritance was actually accepted before July 1, 1999, the date of entry into force of the Civil Code of the Republic of Kazakhstan (Special Part), which provides for the presumption of acceptance of the inheritance. In this case, it is necessary to be guided by the legislation in force earlier.

      Such facts can also be established after the enactment of the Law of the Republic of Kazakhstan dated January 12, 2007 No. 225-III "On Amendments and Additions to the Civil Code of the Republic of Kazakhstan", which established a six-month deadline for accepting inheritance (paragraph 1 of Article 1072-2 of the Civil Code).

     The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 2 (effective from the date of the first official publication); dated 04/20/2018 No. 6 (effective from the date of its official publication).

The list of facts on which the emergence, modification or termination of personal or property rights of citizens and organizations depends, given in Article 305 of the CPC, is not exhaustive. The courts have the right to establish other facts of legal significance, for example, the establishment of the fact of residence at a certain time in a certain area, the presence of a person in a special settlement, as a result of the use of repression, the fact of recognition of paternity (Article 49 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" (hereinafter - KBS), the fact of refusal from accepting an inheritance, the fact of working at a certain enterprise or with another person to calculate the length of service, to establish the fact of the birth of a child by this woman (paragraph 4 of Article 187 of the KBS), on establishing the facts of registration of the birth of Oralmans (paragraph 3 of Article 184 of the KBS)..

      By decree of the Presidium of the Supreme Soviet of the USSR dated November 10, 1944, citizens who were in a de facto marital relationship before the Decree was issued on July 8, 1944, and who were unable to register their marriage with the civil registration authorities due to the death of one of the persons, were granted the right to apply to the court for recognition of the de facto marital relationship. No time frame has been set for the commission of these actions, so such facts still have legal significance and can be established by the court.

     The footnote. Paragraph 12, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/29/2012 No. 6 (effective from the date of its official publication); dated 03/31/2017 No. 2 (effective from the date of its first official publication); dated 04/20/2018 No. 6 (effective from the date of its official publication).

      12-1. They are not subject to consideration by the court in the order of special proceedings upon the application of persons for establishing the facts of ownership of an unauthorized, not commissioned building, structure, as well as a building, structure registered in another name, for establishing the facts of ownership, use and (or) disposal of motor vehicles and any other movable property acquired under the transaction., not issued in accordance with the law.

     Such claims are subject to consideration by the court in the order of claim proceedings.

     The footnote. The regulatory resolution was supplemented by paragraph 12-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 6 (effective from the date of its official publication).

The decision rendered in the case of establishing a fact of legal significance must comply with the requirements of Article 226 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.

     The footnote. Paragraph 13 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

In connection with the adoption of this resolution, to invalidate the resolution of the Plenum of the Supreme Court of the Kazakh SSR No. 6 dated December 16, 1981 "On the implementation by the courts of the resolution of the Plenum of the Supreme Court of the USSR dated February 25, 1966 No. 2 "On judicial practice in cases of establishing facts of legal significance."

According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, is generally binding and comes into force from the date of its official publication.

     Chairman of the Supreme

      Courts of the Republic of Kazakhstan

     Secretary of the plenary session,

     Judge of the Supreme Court

      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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