On the practice of applying consumer protection legislation by courts
Normative resolution of the Supreme Court of the Republic of Kazakhstan dated July 25, 1996 No. 7.
The footnote. In the title, the preamble and throughout the text, the words were replaced by the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 9.
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Noting the need to clarify the issues that courts have in the practice of applying legislation on consumer protection, and in order to ensure effective judicial protection of consumer rights, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:
The Law of the Republic of Kazakhstan dated May 4, 2010 No. 274-IV "On Consumer Rights Protection" (hereinafter referred to as the Law) defines the legal, economic and social foundations of consumer rights protection, as well as measures to provide consumers with safe and high–quality goods (works, services) and regulates relations between consumers - individuals, that is citizens of the Republic of Kazakhstan, foreigners and stateless persons (Article 12 of the Civil Code of the Republic of Kazakhstan (hereinafter – Civil Code), who purchase and use goods, order works and services for personal household needs, or have such intentions, and sellers of goods, or their manufacturers, as well as performers of works and services, regardless of the forms of ownership and formation of a legal entity, including individual entrepreneurs (Article 19 of the Civil Code), and applies to legal relations, which arose or continued after its entry into force (Articles 4, 383 of the Civil Code).
The rights of consumers in the fields of financial, social, medical, tourism and other services, as well as issues of their protection, are established by the laws of the Republic of Kazakhstan (paragraph 2 of Article 2 of the Law).
The footnote. Paragraph 1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of official publication); 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).
Relations with consumers, their rights and obligations, the procedure for exercising and protecting these rights, as well as the rights and obligations of sellers, manufacturers, performers of works and services, except for the Law, are regulated by the Civil Code and other legislative and regulatory acts that do not contradict it, as well as contracts and other transactions provided for by law or not contradicting it..
The footnote. Paragraph 2 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of its official publication).
Regulatory legal acts of the Government of the Republic of Kazakhstan, ministries and departments, local representative and executive bodies may not restrict the rights of consumers and reduce the guarantees of their protection in comparison with those established by the Constitution of the Republic of Kazakhstan, the Civil Code and the Law.
Courts should demand and study the normative legal acts of the central executive bodies and, if they contain rules that use the preferential (monopoly) position of sellers, manufacturers and performers or contradict the Law on Consumer Protection, keep in mind that such acts are invalid from the moment of their adoption and are not subject to application (paragraph 5 of Article 3 GK).
If the decisions of maslikhats and akims contradict legislative acts, the court must resolve the dispute on the basis of legislative acts.
The footnote. Paragraph 3 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of official publication); dated 03/31/2017 No. 2 (effective from the date of the first official publication).
In accordance with the general rules (Article 29 of the CPC), claims against an individual are filed at his place of residence and against a legal entity at his place of residence. At the same time, at the choice of the plaintiff (part nine of Article 30 of the CPC), consumer protection claims can be filed at the plaintiff's place of residence or at the place of conclusion or execution of the contract, therefore, when accepting a statement of claim, the courts must take into account the plaintiff's right to choose the place of consideration of the case.
The footnote. Paragraph 4 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of official publication); 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).
Article 42 of the Law establishes a preliminary out-of-court procedure for resolving claims of public consumer organizations. If these organizations have not followed such a dispute resolution procedure, and such an opportunity has not been lost, the judge in accordance with subparagraph 1) The first part of Article 152 of the CPC returns the application.
The law does not provide for an out-of-court procedure for resolving claims for consumers.
Lawsuits filed by public associations of consumers, associations (unions) in the interests of consumers for consideration in court are not subject to state duty (subparagraph 11) of Article 616 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (Tax Code), Article 42 of the Law).
At the same time, consumers who independently apply to the court are not exempt from paying state duty on claims related to the violation of their rights.
In these cases, reimbursement of court costs to the State and the parties, and their distribution between the parties is carried out according to the rules established by Articles 109, 116, and 117 of the CPC.
The footnote. Paragraph 5 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of official publication); as amended by the normative 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. 7 (effective from the date of the first official publication).
In accordance with Articles 2, 10 of the Law of the Republic of Kazakhstan dated May 31, 1996 No. 3-I "On Public Associations" (hereinafter referred to as the Law on Public Associations), public consumer associations, being public non–profit organizations, operate with charters adopted by the constituent assembly, convened on the initiative of at least 10 members of the society, and are legal entities.
In cases initiated by public associations of consumers or their unions (associations), the courts should clarify their status, the subject and objectives of their activities, as well as their legal capacity, bearing in mind that, in accordance with article 10 of the Law on Public Associations, their legal capacity arises from the moment of state registration or re-registration, their registration of structural divisions (branches and representative offices).
The footnote. Paragraph 6, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of official publication); dated 03/31/2017 No. 2 (effective from the date of the first official publication).
Public consumer organizations have the right to independently file a lawsuit in court to recognize the actions of the seller, manufacturer (their representatives), contractor, who are legal entities, as well as the management body as illegal in relation to an indefinite circle of consumers (a class action) and to terminate these actions. Cases on such claims, in accordance with Article 27 of the CPC, are under the jurisdiction of specialized interdistrict economic courts.
The footnote. Paragraph 7, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/18/2004 No. 9; dated 12/30/2011 No. 5 (effective from the date of official publication); dated 03/31/2017 No. 2 (effective from the date of the first official publication).
When applying Article 21 of the Law, courts should be guided by paragraph 3 of Article 141 of the Civil Code on the protection of non-property rights, regardless of the guilt of the person who violated the right.
Article 42 of the Law does not grant public consumer organizations the right to file claims for compensation of property and moral damage against an indefinite circle of consumers, therefore, claims by consumer societies for compensation of property and moral damage without specifying specific consumers should be recognized as filed in violation of Article 148 of the CPC and, in accordance with Article 152 of the CPC, returned to the applicant.
The footnote. Paragraph 8 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/18/2004 No. 9; dated 12/30/2011 No. 5 (effective from the date of official publication); dated 03/31/2017 No. 2 (effective from the date of the first official publication).
State bodies exercising control over the safety of goods (works, services) in accordance with Article 56 of the CPC may be involved by the court to participate in the proceedings of the case either on their own initiative or on the initiative of the persons participating in the case to enter into the process to give an opinion on the issue within their competence.
The footnote. Paragraph 9, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/18/2004 No. 9; dated 03/31/2017 No. 2 (effective from the date of the first official publication).
When determining the moment of conclusion of a retail sale agreement, courts should be guided by Article 446 of the Civil Code, according to which a retail sale agreement is considered concluded in proper form from the moment the seller issues a cash or commodity receipt or other document confirming payment for the goods, unless otherwise established by legislative acts or the retail sale agreement, including the terms of the forms or other standard forms to which the buyer subscribes (Article 389 of the Civil Code).
A retail purchase and sale agreement, executed at its conclusion, is concluded verbally, regardless of the value of the goods, when an agreement has been reached between the parties on the subject of the contract, price and other conditions that at least one of the parties insists on agreeing.
The same contracts that are not executed during their execution (for pre-orders, parcel trade, car sales, and in other cases) are concluded in the form prescribed for such contracts by law or agreed upon by the parties.
The written form of the contract is considered to be fulfilled if the written proposal to conclude the contract is accepted in the order in which the person who received it performs actions to fulfill the terms of the contract specified in it (shipment of goods, provision of services, performance of work, payment of the corresponding amount, etc.) (Articles 394,396 of the Civil Code).
The footnote. Paragraph 10 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of its official publication).
The consumer and the employee of the service company have equal rights to respect their honor, dignity, and respect for moral and ethical standards in the service process. In case of violation of these norms, the victim has the right to apply to the court for protection of his right in accordance with Articles 9, 141, 142, 143 of the Civil Code.
The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of official publication); 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). 12. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of its official publication).
When resolving issues of property liability for damage caused by products of improper quality, it should be borne in mind that, in accordance with Article 16 of the Law, damage caused to a citizen's life, health or property as a result of constructive, manufacturing, prescription and other deficiencies is subject to full compensation according to the rules of Chapter 47 of the Civil Code.
The damage caused is subject to compensation by the seller (manufacturer, performer) regardless of his fault and regardless of whether the consumer was in a contractual relationship with him or not (paragraph 1 of Article 31 of the Law).
The footnote. Paragraph 13 as amended by the regulatory resolutions of the Supreme Court of the Republic of Kazakhstan dated 06/18/2004 No. 9; dated 12/30/2011 No. 5 (effective from the date of official publication).
Losses in accordance with paragraph 4 of Article 9 of the Civil Code mean expenses that are incurred or should be incurred by a person whose right has been violated, loss or damage to his property (real damage), as well as lost income that this person would have received under normal conditions of turnover if his right had not been violated (lost profit). The amount of the loss is determined according to the rules of paragraphs 3 and 4 of Article 350 of the Civil Code.
In other cases, you should follow the requirements of Article 351 of the Civil Code, which establishes the offset nature of the penalty.
This resolution comes into force from the date of publication.
The footnote. Paragraph 14, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/18/2004 No. 9; dated 12/30/2011 No. 5 (effective from the date of official publication); dated 03/31/2017 No. 2 (effective from the date of the first official publication).
© 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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