Petition for the need to secure (collect, study) evidence located in another State

 

 

To the district court No. 2 of Almaly district

Judge Bakieva S.A. of Almaty city

​ 267 Tole Bi Street, Almaty city.

8 (727)333-11-60.

727-2872@sud.kz

From the defendants:

S.E.S. born on 08/25/1993 in: ..

residing at the address: 87 B. Street, Almaty.

S.P.K., born on 02/20/1992, IIN: . residing at:

Almaty city, A. Street, building No. 140, apartment No. 296

Representative by proxy:

Law and Law Law Firm  

BIN 201240021767

79 Abylai Khan Ave., office 304, Almaty.

info@zakonpravo.kz / www.zakonpravo.kz

+ 7 727 978 5755; +7 708 578 5758.

Plaintiff: G.O.A. born on 05/13/1974, residing at:

Russian Federation, Republic of Tatarstan, ..

 

The petition

on the need to provide (collect, research) evidence located in another State

 

In your proceedings, there is a civil case registered No. 7520-23-00-2/24027 dated 11/28/2023 on the claim of G.O.A. (Hereinafter the Plaintiff) against S.E.S., S.P.K. (Hereinafter the Defendant) and with the involvement of third parties, a private notary of Almaty, S.G.Zh. and K.E.P. (Hereinafter the Notary) to invalidate the transaction and the recovery of the amount, bringing the side of the transaction back to its original position.

Thus, in accordance with the purchase and sale agreement dated July 15, 2022 (hereinafter referred to as the agreement), S.E.S., with the consent of the spouse of S.P.K. (hereinafter referred to as the defendants), sold G.O.A. (hereinafter referred to as the plaintiff) a Toyota Land Cruiser 200 car, manufactured in 2016., identification number JTMCV02J504180477, state registration number 752MCZ02 (hereinafter referred to as the car). On July 15, 2022, this agreement was certified by a private notary of the city of Almaty, S.G.Zh., registered in the register for No. 2334.

Accordingly, between the Plaintiff and the Defendant, in accordance with Articles 151, 152, 154, 155 of the Civil Code of the Republic of Kazakhstan by agreement of the parties, there was a completely written form of the transaction, which was notarized and registered.

          According to paragraph 2 of the contract, the plaintiff paid the defendants an amount of 24,900,000 tenge, and according to paragraph 4 of the contract, it follows that the issuance of the contract to the plaintiff indicates a full settlement between the parties.

- In civil law relations, each party must fulfill its obligations under the contract, and on the part of the defendant, the contractual obligations were fulfilled properly, where, through authorized bodies, the above-mentioned car was removed from the state database for registration of vehicles and then the transit number 6512 MN was assigned and safely crossed the state border of the Republic of Kazakhstan.

 

          Further, the plaintiff claims that on 07/19/2022, during an inspection of the car, the fact of a change in the chassis and engine numbers of the car was revealed in connection with these circumstances, the car was seized from the plaintiff, which is confirmed by the protocol on the seizure of the vehicle dated 07/19/2022.

- However, the Plaintiff submitted to the court a copy of the Protocol on the seizure of the vehicle dated 07/19/2022, where it is not visible which car, when, and by whom it was inspected and seized, respectively,

In accordance with Clause 5 of Article 68 of the CPC RK, circumstances cannot be considered established if only copies of documents are provided to confirm them, when the need to present the original follows from the requirements of the law.

The court also cannot consider the circumstances proved, which are confirmed only by a copy of a document or other written evidence when challenging its content, if:

     1) the original document has been lost and has not been handed over to the court;

     2) the copies of this document submitted by each of the disputing parties are not identical to each other;

     3) it is impossible to establish the content of the original document with the help of other evidence.

 

           In addition, the Plaintiff claims that the fact of changing the identification numbers of the body and engine is confirmed by the expert's conclusion No. 911. Further, on the basis of which, on August 05, 2022, the senior investigator of the OD OP No. 4 "Electrotechnical" Department of the Ministry of Internal Affairs of Russia in Naberezhnye Chelny, a police major opened a criminal case on the grounds of a crime under Part 1 of art. The Criminal Code of the Russian Federation, which is confirmed by the Resolution on the initiation of a criminal case dated August 05, 2022.

     - As well as the Protocol on the seizure of the vehicle, the Plaintiff's side also provided the court with only a copy of the Expert Opinion for No. 911., and the Resolution on the initiation of criminal proceedings and its acceptance for production No. 12201920069000953 dated August 05, 2022. 68, 72 of the Civil Procedure Code of the Republic of Kazakhstan, a copy of the documents is considered and is not subject to application, taking into account relevance, admissibility and reliability as evidence.

           According to Articles 67, paragraphs 1, Article 68 of the CPC RK, evidence is considered reliable if, as a result of verification, it turns out that it corresponds to reality. Each evidence is also subject to assessment taking into account its relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve a civil case.

           According to the Plaintiff's arguments, the plaintiff sold a stolen vehicle with a fake body identification number, respectively, the transaction with the specified vehicle is not legitimate and not valid. And in the situation under consideration, the plaintiff was misled in terms of the vehicle identification number, as a result of which the vehicle was seized and the plaintiff is unable to use the property acquired under the transaction.

- The provisions of Articles 271, 272 of the Civil Code of the Republic of Kazakhstan stipulate that Obligations arise from a contract and the Obligation must be performed properly in accordance with the terms of the obligation and the requirements of the law, and in the absence of such conditions and requirements - in accordance with business practices or other commonly imposed requirements.

           Accordingly, the defendant, in accordance with the requirements of the Legislation of the Republic of Kazakhstan, purchased the specified car in 2020 in the city of Karaganda from a citizen of the Republic of Kazakhstan, where the authorized authorities checked it during re-registration, and it was properly executed and there were no problems on the part of law enforcement agencies during two years of operation of the car.

           On 07/15/2022, According to the Car Purchase and Sale Agreement, the specified car was also rechecked and de-registered by the authorized authorities and a Transit number was assigned for transportation to the Russian Federation and the Plaintiff was present when the contract was drawn up and de-registered. The arguments on the fact of the non-validity of the Purchase Agreement and the misleading of the Plaintiff are not substantiated.

           Article 72 of the CPC RK stipulates that each party must prove the circumstances to which it refers as the basis of its claims.

The Plaintiff also asks the court to bring the parties to the transaction back to their original position, ignoring his arguments in the lawsuit that the car was seized by law enforcement agencies of the Russian Federation.

- According to the above-mentioned arguments of the Plaintiff, article 157-1. The CPC of the Republic of Kazakhstan stipulates that in case of invalidity of the transaction, each of the parties is obliged to return to the other everything received under the transaction, and if it is impossible to return in kind, to reimburse the value of the property to be returned, etc.

If the transaction is aimed at achieving a criminal goal, the illegality of which is established by a court verdict (resolution), then, if there is intent on both sides, everything received by them under the transaction or intended to be received is subject to confiscation by court decision or verdict. In case of execution of such a transaction by one party, everything received by it and everything owed by it under the transaction to the first party is subject to confiscation from the other party. If none of the parties has begun execution, everything provided for in the execution of the transaction is subject to confiscation.

If there is an intent to achieve a criminal goal, the illegality of which is established by a court verdict (resolution), only one of the parties has everything received by her under the transaction to be returned to the other party, and what was received by the latter or owed to her under the transaction is subject to confiscation.

In accordance with Article 6 of the Civil Code of the Republic of Kazakhstan, the norms of civil legislation should be interpreted in accordance with the literal meaning of their verbal expression.

68, 72 of the Civil Procedure Code of the Republic of Kazakhstan, Each party must prove the circumstances to which it refers as the grounds for its claims and objections, each evidence is subject to assessment taking into account relevance, admissibility, reliability.

According to Articles 188, 189 of the Civil Code of the Republic of Kazakhstan, the Owner has the right, at his discretion, to perform any actions with respect to his property, including alienating this property to other persons, transferring to them, while remaining the owner, his powers to own, use and dispose of property, pledge property and encumber it in other ways, dispose of it in a different way. The owner has the right to own, use and dispose of his property to determine the legal fate of the property.

157, paragraph 2 of the Civil Code of the Republic of Kazakhstan provides that a transaction is declared invalid in violation of the requirements for the form, content and participants of the transaction, as well as for their freedom of expression on the grounds established by this Code or other legislative acts - However, in accordance with this article, the Plaintiff does not provide any substantial arguments about the violation of the form and the content of the agreement, as well as the will to conclude the Contract.

Article 159 of the Civil Code stipulates the Grounds for the invalidity of transactions and cites 12 circumstances where a transaction may be declared invalid, namely:

A transaction made without obtaining the necessary permission is void.;

A transaction that pursues the goals of unfair competition or violates the requirements of business ethics;

A transaction made by a person under the age of fourteen (a minor);

A transaction made by a minor who has reached the age of fourteen without the consent of his legal representatives;

A transaction made by a person who has been declared legally incompetent due to mental illness or dementia is void. A transaction made by a citizen who was subsequently declared legally incompetent;

A transaction made by a person limited in legal capacity by a court;

A transaction made by a legally capable person, but who was in a state at the time of its commission when he could not understand the meaning of his actions or direct them - due to this circumstance, the Plaintiff did not provide the court with the appropriate supporting documents and/or evidence.;

A transaction made as a result of a significant misconception may be declared invalid by the court at the request of the party acting under the influence of the misconception.;

A transaction made under the influence of deception, violence, threats, as well as a transaction that a person was forced to make due to a combination of difficult circumstances on extremely unfavorable terms for himself, which the other party took advantage of (bonded transaction

A transaction made as a result of a malicious agreement by a representative of one party, an unscrupulous representative - well, here the parties were directly present at the conclusion of the Contract.;

A transaction made by a legal entity in contradiction with the objectives of its business;

Transactions provided for in paragraphs 3, 5 of this Article, at the request of the legal representatives of minors or incapacitated persons.

Dear Court, Chapter 4 of the Civil Code of the Republic of Kazakhstan “Transactions” specifically defines the concept of a transaction, the form of conclusion, and the circumstances in which the Transaction is recognized as invalid. However, the Statement of Claim does not specify specific circumstances and or a reference to regulations on the recognition of the transaction as invalid. Apart from the unsubstantiated charges of the Defendant, nothing is given.

 In accordance with Articles 74, 75 of the Civil Procedure Code of the Republic of Kazakhstan, the court considering the case, on its own initiative or in case of satisfaction of petitions of persons participating in the case on the need to provide (collect, study) evidence located in another state with which the Republic of Kazakhstan has an agreement on the provision of legal assistance in civil matters, sends a court order to in accordance with the provisions of this agreement.

The execution of a court order is carried out in a court session according to the rules established by this Code. The persons participating in the case are notified of the time and place of the meeting, however, their non-appearance is not an obstacle to the execution of the order.  

In order to ensure a comprehensive, complete and objective consideration of a civil case by a court, we consider it necessary to ensure (collection, research) of evidence located in the Russian Federation, since there is an agreement between the Republic of Kazakhstan and the Russian Federation on the provision of legal assistance in civil matters and it is possible to send a court order in accordance with the provisions of this agreement.

 

By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests and on the basis of the above in accordance with Articles 46, 74, 75 of the CPC RK,

I ask the Court:

To satisfy the Request for the need to secure (collect, study) evidence located in another State;

He will send a Court order to the Russian Federation to provide a copy of the materials of the Criminal Case No. 12201920069000953 dated August 05, 2022, initiated by the senior investigator, Police Major A.S. Nurislamov, OD OP No. 4 "Electrotechnical" of the Department of the Ministry of Internal Affairs of Russia in Naberezhnye Chelny, initiated on the grounds of corpus delicti provided for in Part 1 of Article 326 of the Criminal Code of the Russian Federation.

 

With respect,

Representative by proxy

___________/ Sarzhanov G.T.

"___" __________ 2024 the year

 

 

 

 

 

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