Petition for review of the court's decision
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Judicial Board for Civil Cases of the Almaty City Court
The plaintiff:
Makhmutova Dinara Baktygereevna, born on January 22, 1954, IIN 540122200300, Almaty, Rozybakieva Street,188-30 Tel: 87011002233
Plaintiff's representative on the warrant and power of attorney:
Lawyer of Law Firm No. 6 AGCA Sarzhanov G.T., office 64 Bukhar zhyrau, Almaty 15. + 7 (708) 578 57 58.
The petition
on the revision of the decision of the Bostandyk District Court of Almaty dated 25.06.2018, which entered into force,
Resolutions of the Judicial Board for Civil Cases of the Almaty City Court dated 08/01/2018
By the decision of the Bostandyk District Court of Almaty dated 25.06.2018, the claim of Makhmutova D.B. for invalidation of the donation agreement concluded between Makhmutova D.B. and Kozhamzharova M.K. was denied.
By the decision of the judicial board for civil cases of the Almaty City Court, the decision was left unchanged, the appeal was dismissed. I consider judicial acts to be illegal and unjustified due to the improper application of substantive law, the incorrect definition and clarification of the range of circumstances relevant to the case that led to the issuance of an illegal judicial act. Based on the apartment donation agreement dated May 20, 2018, concluded between – ...................., and ......................., The plaintiff donated a one-room apartment free of charge, and the defendant accepted an apartment located at 188-30 Rozybakieva Street, Almaty. At the same time, at the time of signing the contract, the defendant assured the plaintiff that an annuity agreement was being signed, and not a gift agreement.
517 of the Civil Code of the Republic of Kazakhstan, under an annuity agreement, one party (the recipient of the rent) transfers ownership of property to the other party (the payer of the rent), and the payer of the rent undertakes, in exchange for the received property, to periodically pay rent to the recipient in the form of a certain amount of money or provide funds for its maintenance in another form. Due to her legal illiteracy and poor eyesight, the plaintiff took the defendant at her word and had no idea that ownership of the disputed apartment was being transferred to the defendant. In exchange for the apartment, the defendant promised the plaintiff to take care of her, help her financially and physically, but for several years there was no help from her. In addition, the disputed apartment is the sole residence of the plaintiff and there is no other property belonging to the ownership right. When concluding the donation agreement, the plaintiff, in turn, was mistaken about the consequences of such a transaction and did not assume that she was losing her only home. The conclusion of the donation agreement did not correspond to the actual will of the plaintiff, namely, she had no intention of depriving herself of ownership of the only housing. Moreover, the plaintiff was counting on financial and physical assistance from the defendant, in return for which, after my death, ownership of the disputed apartment should have passed to her. The defendant, in turn, has another place to live, namely, the apartment in which she is registered and permanently resides.
The defendant has never appeared in the disputed residential area. Based on Part 8 of Article 159 of the Civil Code of the Republic of Kazakhstan, a transaction made as a result of a significant misconception may be declared invalid by a court at the request of a party acting under the influence of a misconception. It is essential to be mistaken about the nature of the transaction, the identity or such qualities of its subject matter that significantly reduce the possibility of its intended use. An error in motives may serve as a ground for invalidating a transaction only if such a motive is included in its content as a suspensive or canceling condition (Article 150 of this Code). 401 of the Civil Code of the Republic of Kazakhstan, at the request of one of the parties, the contract may be amended or terminated by a court decision only in case of a significant violation of the contract by the other party. A violation of the contract by one of the parties is considered significant, which entails such damage to the other party that it is largely deprived of what it was entitled to expect when concluding the contract. In turn, if the consequences of such a transaction had been explained to the plaintiff at the conclusion of the contract, the plaintiff would never have agreed to conclude a donation agreement.
Due to the fact that when concluding the donation agreement, the plaintiff was misled by the defendant and after its conclusion there was a significant change in the circumstances from which the plaintiff proceeded when concluding the agreement, the specified donation agreement cannot be recognized as legitimate. Also according to part 1 of art. 511 of the Civil Code of the Republic of Kazakhstan, the donor has the right to refuse to perform a contract containing a promise to transfer a thing or right to the donee in the future, or a promise to release the donee from property obligations, if after the conclusion of the contract the property or marital status or health status of the donor has changed so much that the performance of the contract in the new conditions will lead to a significant decrease in his standard of living.
Petition for review of the court's decision
In accordance with paragraph 22 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated March 20, 2003 No. 2 "On the application by courts of certain norms of civil procedure legislation", "in accordance with Articles 412, 413 of the CPC, the court of appeal, based on the materials available in the case and additionally submitted, verifies the legality and validity of the decision of the court of first instance in full.
By the full scope of the review of the court's decision, it should be understood that the correctness of the establishment by the court of first instance of the factual circumstances of the case, the application or interpretation of the norms of substantive and procedural law is being checked." The Judicial Board for Civil Cases of the Almaty City Court did not pay due attention to this case. Contrary to the requirements of the law obliging the higher instance to eliminate the violations and make up for the shortcomings, she ignored the plaintiff's arguments set out in the appeal and duplicated the conclusions of the court of first instance, issued an unlawful ruling, finding no grounds to change the illegal and unjustified decision of the district court. Based on the above and in accordance with Articles 434-436, 444, paragraph 8, Part 2, Article 451 of the CPC RK,
I ASK THE COURT:
To conduct a preliminary examination of the petition with the request for materials of the civil case;
To submit the petition with the case for consideration at the court session of the cassation instance.
The decision of the Bostandyk District Court of Almaty dated 06/25/2018, the decision of the judicial board of the Almaty City Court dated 08/01/2018 to cancel and make a new decision in satisfaction of the claim, recognizing the donation agreement dated May 20, 2018, concluded between Makhmutova D.B. and Kozhamzharova M.K. as invalid.
Application:
The court's decision;
Thanks. personalities;
Attorney.
Representative on notification and power of attorney Lawyer of Law Firm No. 6 AGCA
______________/ Sarzhanov G.T.
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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