On recognition and commitment
No. 6001-23-00-6ap/1071 dated 11/23/2023
Plaintiff: S.A.
Respondent: University
Interested parties: Ministry of Education and Science of the Republic of Kazakhstan, RSE "National Institute of Intellectual Property" of the Ministry of Justice of the Republic of Kazakhstan
The subject of the dispute: the recognition and imposition of obligations.
Review of the plaintiff's cassation complaint PLOT:
In 2020, the plaintiff, as an applicant, passed the entrance exam for admission to the doctoral program of the University, conducted in groups of doctoral educational programs in the form of a presentation.
According to the minutes of the meeting of the examination committee on passing the entrance exam for the doctoral program D141 "Medicine" dated August 20, 2020, the plaintiff passed the exam with a score of 67.8 points "satisfactory", which is not enough for admission to the doctoral program.
The plaintiff filed an application for a review of the entrance exam result.
According to the minutes of the appeal commission meeting dated August 22, 2020, no points were added to the plaintiff and the conclusion was made about: insufficient disclosure of scientific novelty, insufficient scientific foundation, insufficient relevance and priority of the research topic, low English language proficiency and professional specifics, lack of publications on the research topic.
In order to resolve the dispute in a pre-trial manner, the plaintiff appealed to the defendant and other state bodies, which left his appeals without satisfaction.
Judicial acts:
1st instance: the claim was denied.
Appeal: the court's decision remains unchanged.
Cassation: judicial acts are upheld.
Conclusions: by virtue of the second part of Article 5 of the CPC, the task of administrative proceedings is the fair, impartial and timely resolution of administrative cases in order to effectively protect and restore violated or disputed rights, freedoms and legitimate interests of individuals, rights and legitimate interests of legal entities in public relations.
Subparagraph 18-4) of Article 1 of the Law of the Republic of Kazakhstan "On Education" defines that doctoral studies are postgraduate education, the educational programs of which are aimed at training personnel for scientific, pedagogical and (or) professional activities, with the award of the degree of Doctor of Philosophy (PhD), doctor in profile.
Paragraph 31 of Appendix 2 of the Model Rules for Admission to Educational Organizations implementing educational programs of Higher and Postgraduate education (hereinafter referred to as the Rules), approved by the order of the Minister of Education and Science of the Republic of Kazakhstan dated October 31, 2018, established that persons who have completed an entrance examination are enrolled in doctoral studies under a state educational order on a competitive basis. the exam score is at least 75 points.
Paragraph 20 of paragraph 2 of the Rules stipulates that the entrance exam for groups of doctoral degree programs in the field of education
According to Appendix 5, "Healthcare" is conducted independently by the OVPO (educational organizations of the Republic of Kazakhstan that implement educational programs of higher and (or) postgraduate education), which carry out admission to doctoral educational programs. At the same time, the applicant takes the entrance exam for the group of educational programs of the doctoral program in the field of education "Health care" only in the secondary vocational school, which he enters.
This means that people who have scored at least 75 points are enrolled in a state educational order on a competitive basis.
In this case, the entrance exam was conducted in the form of a presentation and points were awarded. According to this procedure, no violations were found by the local courts. The judicial board considers the conclusions of the courts in this part to be justified, since the establishment of the entrance exam by the defendant in the form of a presentation is not a violation of the law, since the right to determine the method of its conduct is assigned to him by the Rules.
At the same time, the creation of one examination board in related areas of training did not mean the narrowing or exclusion of any educational programs, since:
1) in accordance with the Rules, applicants for training in
According to the state educational order, the entrance exam is passed for a group of doctoral degree programs in the field of education.
"Healthcare", which means that they are related at the stage of admission to doctoral studies;
2) the specialization "medicine" presupposes all medical fields, therefore, all medical fields of training specialists in the field of medicine fall under related specialties.
The Judicial Board also carefully examined whether S.A. has scientific papers, publications and patents. The members of the examination committee noted their presence in their checklists, which was established by the local courts.
The first part of Article 7 of the APPC regulates that an administrative body or official carries out administrative procedures within its competence and in accordance with the Constitution of the Republic of Kazakhstan, the APPC and other regulatory legal acts of the Republic of Kazakhstan.
The first part of Article 79 of the CPC stipulates that an administrative act must be lawful and justified.
The fourth part of Article 155 of the CPC states that the court refuses to satisfy the claim if, upon its consideration, it finds that the contested action (inaction) has been committed, the decision has been made in accordance with the competence and legislation of the Republic of Kazakhstan.
In the context of the above norms of the CPC in relation to the legal relations of the parties and the circumstances of the case established by the courts, it follows that:
a) in the case under consideration, the determination of the level of knowledge belongs to the exclusive jurisdiction of the defendant;
b) in the framework of administrative proceedings, the court verifies only the legality and validity of an administrative act and actions (inaction) within the framework of the administrative procedure preceding its adoption;
c) the court has no right to substitute the functions of an administrative body.
In view of this, the judicial board, without entering into the substance of the final assessment of the entrance exam, considers the conclusions of the courts on the denial of S.A.'s claim to be correct, since the defendant did not commit any violations of the law as part of the administrative procedure.
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