Petition for review of a judicial act that has entered into legal force

 

 

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To the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan.

 

Copy:          R.A.

(the procedural situation in the case is the plaintiff).

 

Copy:          N.M.M.

(the procedural situation in the case is the defendant).

 

from: E.J.

(the procedural situation in the case is the defendant).

Representative

by proxy: B.E.S.

Astana, K.. str., 28-82

tel. +......

 

The petition

on the revision of a judicial act that has entered into legal force

(decisions of the Judicial Board for Civil Cases of the Almaty City Court on November 23, 2022, case No. 7599-22-00-2a/11098).

By the decision of the Bostandyk District Court of Almaty dated August 18, 2022, the satisfaction of the claim of R.A. to E.Zh., N.M.M. for the recovery of the amount of the principal debt, penalties was denied. It was decided to recover from R.A. in favor of N.M.M. court costs in the form of representation expenses in the amount of 300,000 (three hundred thousand) tenge (hereinafter referred to as the decision of the court of first instance).

 

By the decision of the Judicial Board for Civil Cases of the Almaty City Court on November 23, 2022, R.A.'s application dated June 16, 2022 for the restoration of the limitation period was satisfied.

The decision of the Bostandyk District Court of Almaty dated August 18, 2022 has been changed.

The decision to dismiss the claim of R.A. to E.Zh. for recovery of the amount of the principal debt of 10,200,000 tenge due under the contract of purchase and sale of equipment of .... LLP dated March 28, 2016 was canceled and a new decision was made to satisfy this claim. It was decided to collect from E.Zh. in favor of R.A. a debt in the amount of 10,200,000 (ten million two hundred thousand) tenge.

The decision to dismiss R.A.'s claim against E.Zh. for the recovery of a penalty in the amount of KZT 6,336,222 was changed, the decision regarding the refusal to recover a penalty in the amount of KZT 2,582,214 was canceled, and a new decision was made to partially satisfy this claim.

It was decided to collect from E.Zh. in favor of R.A. a penalty in the amount of 258214 (two hundred and fifty-eight thousand two hundred and fourteen) tenge.

The rest of the solution remains unchanged.

It was decided to recover from E.Zh. in favor of R.A. the costs of paying the state fee in the amount of 103531 (one hundred three thousand five hundred and thirty-one) tenge. It was decided to recover from R.A. in favor of N.M.M. the costs of paying for the representative's assistance in the amount of 50,000 (fifty thousand) tenge.

The appeal of the plaintiff R.A. was partially satisfied (hereinafter referred to as the court decision).

 

In accordance with paragraph 5 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 5 dated July 11, 2003, a decision is lawful when it is rendered in compliance with the norms of procedural law and in full compliance with the norms of substantive law applicable to this legal relationship, or is based on the application, if necessary, of a law regulating a similar relationship, or It proceeds from the general principles and meaning of civil legislation and the requirements of good faith, reasonableness and fairness (Article 5 The Civil Code of the Republic of Kazakhstan (hereinafter referred to as – Civil Code of the Republic of Kazakhstan) and Article 6 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC RK).

A decision is considered justified if it reflects facts relevant to the case, confirmed by evidence examined by the court that meet the requirements of the law on their relevance, admissibility and reliability, or are well-known circumstances that do not need to be proven and are collectively sufficient to resolve the dispute.

 

According to Article 218 of the CPC RK, the court's decision must be lawful and justified.

 

We disagree with the judicial act of the court of appeal regarding the satisfaction of the claims against the defendant E.Zh.: the court of appeal incorrectly determined and clarified the range of circumstances relevant to the case, violated the norms of substantive and procedural law, which in turn is the basis for the cancellation or amendment of the judicial act.

 

Thus, the court of first instance made a lawful and reasoned decision, which is confirmed by the following reasoned conclusions:

"... - the plaintiff did not submit the original equipment purchase and sale agreement dated March 28, 2016; however, the plaintiff and defendant N.M.M. did not dispute the fact of concluding and signing this agreement in the stated wording at the court hearing.;

- the plaintiff's arguments about the conclusion of the contract in his absence, during his stay abroad, do not consist, since it follows from the plaintiff's own explanations that the contract was signed at the request of N. M.M. "retroactively" after his return to Kazakhstan, approximately on April 26 and/or 28, 2016;

- the evidence of the equipment's location on the partnership's balance sheet has not been presented to the court.;

- it follows from the content of the agreement that it was concluded by the founders of the partnership, and not by the partnership itself, and evidence of the partnership's claims, including for non-fulfillment of obligations under the agreement, has also not been presented to the court.;

- the court takes into account that the receipt for the transfer of N.M.M. E.Zh. money under the contract in the amount of 20,400,000 tenge is dated March 26, 2016, whereas the date of conclusion of the contract is March 28, 2016"; according to N.M.M., the money was transferred on March 28 before signing the contractOh, the receipt was written at the same time, but with a misprint in the date.;

- E.J. evidence of the transfer of money to the plaintiff was not provided; however, from the literal content of the contract dated March 28, 2016, which was not recognized as invalid in accordance with the established procedure, signed by the plaintiff, as well as N.M.M., E.J., it follows that the funds were paid by the buyer to the sellers before signing the contract;

- the claim must also be dismissed due to the omission of the limitation period established by paragraph 1 of Article 178 of the Civil Code; the plaintiff, having signed a contract with the above content, did not apply to the court for protection of his right within the prescribed period for more than six years, and also did not provide evidence of the validity of the omission.;

- the plaintiff is not deprived of the right to apply to the court upon completion of the initiated criminal proceedings in accordance with article 455 of the Code of Civil Procedure with a request for review of this decision on newly discovered or new circumstances ...".

         The court of first instance also legitimately applied the limitation period established by paragraph 1 of Article 178 of the Civil Code of the Republic of Kazakhstan, since the plaintiff filed a lawsuit more than 6 years after the conclusion of the loan.

         Also, one of the legal grounds for the refusal to satisfy the claim by the court of first instance was the application of the requirements of clauses 3.4, 5 of Article 8 of the Civil Code of the Republic of Kazakhstan (fair, reasonable use of civil rights ...), since the court found abuse of the right by the plaintiff, and therefore the court refused to protect the person's right.

The court of first instance fully examined the evidence in the case and gave it a proper legal assessment, correctly identified and clarified the range of circumstances relevant to the case, thus, the court of first instance correctly applied the norms of substantive and procedural law, therefore, the judicial act of the court of first instance is legitimate.

 

Whereas the court of appeal issued an illegal judicial act regarding the satisfaction of claims against the defendant Ermenova Zhanat.

 

 

ILLEGALITY OF THE JUDICIAL ACT OF THE COURT OF APPEAL:

 

According to the circumstances of the conclusion of the contract of sale and transfer of funds:

 

   The Court of Appeal made the following illegal conclusion:

 

"... The court's attention was also due to the basis of the claim or the argument in the plaintiff's explanations that he could not sign the purchase contract on March 28, 2016 and receive the money owed to him for the equipment from the defendants due to his stay abroad, he signed the contract in April of the same year.

In an electronic letter from the border guard service of the National Security Committee of the Republic, it is reported that Rakhmanov A. flew from Almaty to Hong Kong (PRC) on March 18, 2016, and arrived from Hong Kong to Almaty on April 1, 2016.

The above indicates that all of the above-described arguments of the court, including arguments about the plaintiff's failure to provide the original contract, the conclusion of the contract by the founders of the partnership, and not by the partnership itself, the failure to provide evidence of claims from the partnership, including for non-fulfillment of obligations under the contract, do not disclose the essence of the decision to dismiss the claim.

Neither E.J. nor N.M.M. refute the fact that the first receipt was drawn up, according to which she assumed the obligation to transfer half of R.A.'s equipment to another owner...".

 

This conclusion of the court of appeal is illegal, since the draft contract for the purchase and sale of equipment was prepared in mid–March 2016, however, due to the need to compile an inventory of the equipment being sold, the signing of this agreement in the person of the founders R.A., E.J. on the part of the seller N.M.M. on the part of the buyer took place in April in 2016.

Paragraph 2 of the equipment purchase and sale agreement stipulates that the equipment being sold is valued by the parties at 20,400,000 (twenty million four hundred thousand) tenge, this amount is transferred by the buyer to the sellers prior to signing the agreement.

The court of Appeal did not assess the fact that R.A. did not dispute the fact that he personally signed the contract for the purchase and sale of equipment. The available materials of the criminal case are not evaluated – the protocol of the confrontation dated 04/24/2018 between the victim R.A. and the witness N.M., where R.A. also confirms that the contract was signed "retroactively" after his return to Kazakhstan, approximately on April 26 and/or 28, 2016.

Consequently, the court of first instance unreasonably concluded that, to date, the defendant E.Zh. has not transferred to the plaintiff R.A. part of the funds owed to him from the sale of equipment. Since, from the contents of even the receipt itself, it follows that E.Zh. undertakes to transfer the funds to R.A. at a meeting that took place on the day of signing the purchase agreement, that is, in April 2016 after R.A.'s return to Kazakhstan.

 

According to the obligations of R.A., Z.D.N., established by judicial acts to the defendant N.Zh.:

 

The Court of appeal has not given a proper legal assessment of the available judicial acts:

 

Thus, according to the decision of the Medeu District Court of Almaty dated March 26, 2018, the amount under the loan agreement in the amount of 5,004,000 tenge was recovered from R.A. in favor of N.M.M.

According to the protocol of the confrontation dated 04/24/2018, R.A. does not deny that he took money from N.M. for utility bills, rent for joint business.

By the decision of the Medeu District Court of Almaty dated June 11, 2019, an amount of 836,475 tenge was recovered from R.A. in favor of N.M.M. according to the receipt. To date, enforcement proceedings have been initiated, judicial acts have not been executed.

 

By the decision of the Bostandyk district Court dated 04/25/2018, according to which an amount of 20,400,000 tenge was recovered from Z.D.N. in favor of N.M. This judicial act establishes arrears under the contract for the purchase and sale of equipment with an installment payment dated April 13, 2016 (please note that the judicial act was issued for the same equipment that is the subject of this civil case).

Consequently, there are currently a number of judicial acts that confirm the existence of other relationships between R.A., Z.D. and N.M., which the court of appeal did not give a proper legal assessment. While Z.D. and the plaintiff R.A. were and are in friendly relations, it was R.A. who was asked to buy out Z.D.'s business, which generally indicates a malicious agreement between them, subsequently not to pay money for the equipment, but in fact, to conduct a joint business. This is also confirmed by the fact that when concluding a share donation agreement, He was aware of the unprofitability of the acquired business and acquired it with an obligation to third parties (these conditions are reflected in the donation agreement for shares in the LLP).

 

   Currently, enforcement proceedings have been initiated on an illegal judicial act issued by the court of appeal of the CHSI district of Almaty Sarybekov D.Zh.

A number of resolutions were issued, including on the seizure of movable property dated 02/24/2022, on the transfer of movable property to auction dated 02/24/2022, and on foreclosure on property dated 02/21/2022.

Consequently, an illegal judicial act of the court of appeal may entail irreversible consequences for the defendant E.J. in the form of loss of movable property (its sale) in the framework of enforcement proceedings, which violates her rights and legitimate interests.

By statute of limitations:

The Court of Appeal granted the application of the plaintiff R.A. for the restoration of the missed deadline on the basis of the following:

 

"... Taking into account the results of the investigation of the circumstances on which R.A.'s application for the restoration of the general limitation period is based, it is necessary to consider this application to be satisfied.

In April 2018, R.A. applied to the police department of the Medeu district of Almaty with a written statement on the initiation of a criminal case on fraud against E. Zh. A criminal case on the grounds of a criminal offense provided for in paragraph 2) Part 4 of Article 190 of the Criminal Code has been initiated, the proceedings were terminated several times, and then resumed after the cancellation of the decisions to terminate the case, and currently the pre-trial investigation is ongoing.

It was found out that on February 8, 2019, R.A. filed a lawsuit with the Medeu District Court of Almaty against E.Zh., N.M.M. to recover the amount of the debt.

The case file contains a copy of the ruling of the judge of this court dated January 15, 2020 on the transfer of the civil case under the jurisdiction (subparagraph 3) of the second part of Article 34 of the Civil Procedure Code) to the Bostandyk District Court of Almaty. On April 29, 2020, this district court dismissed R.A.'s claim without consideration under subparagraph 8) of Article 279 of the said Code, which was determined.

In addition, E.Zh. does not deny his obligation to transfer R.A. his share in a monetary amount equal to 10,200,000 tenge. It has not been refuted based on objective factual information..."

 

We believe that the court of appeal, restoring the statute of limitations, did not indicate a single conclusion that the plaintiff missed the statute of limitations for a valid reason, whereas:

 

Article 185 of the Civil Code of the Republic of Kazakhstan establishes the obligation for the court to recognize valid reasons for missing the limitation period.

In turn, the evidence available in this civil case that the plaintiff has repeatedly contacted law enforcement and judicial authorities since 2018 indicates that he was reliably aware that his rights had been violated and he should have taken all measures to go to court in a timely manner.

Consequently, the court of first instance lawfully established that the plaintiff had not applied to the court for protection of his rights and legitimate interests for 6 (six) years. The plaintiff also failed to provide evidence of the validity of the missed deadline.

Also, the court of first instance reasonably referred to clauses 4.5 of Article 8 of the Civil Code of the Republic of Kazakhstan (abuse of law by the parties to the civil procedure).

We believe that the court of appeal did not consider this civil case objectively, in violation of the principle of legality and objectivity, which in turn led to a change in the lawful and justified judicial act - the decision of the Bostandyk District Court of Almaty dated August 18, 2022 (on the refusal to satisfy the claim in full).

 

We believe that all of the above indicates a gross violation of the norms of substantive and procedural law by the court of appeal, and therefore, guided by the requirements of Articles 444, 451 of the CPC RK, we ask the court:

to claim the case and submit the petition with the case for consideration at the court session of the cassation instance;

in accordance with Article 448 of the CPC of the Republic of Kazakhstan, to suspend the execution of the decision of the Judicial Board for Civil Cases of the Almaty City Court on November 23, 2022.

to amend the resolution of the Judicial Board for Civil Cases of the Almaty City Court on November 23, 2022 regarding the satisfaction of claims for the principal debt, penalties and representative expenses to the defendant E.Zh.

 

Application:

A copy of the power of attorney for the representative;

A copy of the notice of representation;

A copy of the lawyer's certificate;

A copy of the receipt for payment of the state fee;

A copy of the enforcement proceedings.

..

Representative by proxy        

B.E.S.______________

 

 

 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

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