Private definitions and letters with comments
Private rulings of the court are one of the effective tools of judicial control. According to Part 1 of Article 270 of the CPC, when cases of violations of the rule of law are identified, the court has the right to issue and send a private ruling, and if violations are committed by government agencies, officials and civil servants, the court issues and sends a private ruling to relevant organizations, officials or other persons performing managerial functions, who are required to report on the decisions taken within one month. their measures. The grounds for making private determinations are cases of violations of the rule of law revealed at a court hearing. Thus, in a civil case, the claim of the Russian State Institution "Department of State Revenue for the Aktobe region" against LLP "Sh", LLP "S" for invalidation of transactions by local courts was denied due to the lack of evidence indicating the fictitiousness of transactions, as well as the conviction of the criminal prosecution authority confirming the guilt of the actions of the participants in the transaction. The decision on the actual execution of contracts is based on invoices and contracts submitted to refute the arguments of the tax authorities about the fictitiousness of transactions with this counterparty, which was the basis for the cancellation of judicial acts and the referral of the case for a new hearing to the court of appeal. On December 6, 2017, the Cassation Board issued a private ruling to the Russian State Institution "Department of State Revenue for the Aktobe region" stating that the Tax Authority, while suing, motivated the violation of the requirements for the form, content and participants of the transaction, as well as for the freedom of their will.
Private definitions and letters with comments
In a private definition, the board indicated that the right of the Tax Authority to declare the transaction invalid can be implemented only insofar as the satisfaction of the relevant requirement is aimed at fulfilling the tasks of the tax authorities to ensure revenue to the budget of taxes and fees. Meanwhile, when filing a claim, the Tax Authority did not ensure the completeness of the study and analysis of the defendants' tax reports, the possibility or impossibility of actually making and executing transactions, and establishing the fact of violation of taxpayers' tax obligations. Based on the results of the review of cases, the cassation board sent 35 letters to the chairmen of the courts for violations of substantive and procedural law by the judges of the lower courts. Four letters were also sent to the General Prosecutor's Office of the Republic of Kazakhstan, the Ministry of Finance, the Prosecutor's Office of the East Kazakhstan region, and the Mayor of Almaty. The regional and equivalent courts held extended meetings based on letters of comment, at which the judges who committed violations were told about the need for strict observance of the rule of law in the administration of justice. Thus, by the decision of the Judicial Board for Civil Cases of the Supreme Court dated January 11, 2017, judicial acts in a civil case on the claim of the bankrupt manager of LLP to the State Institution "Ministry of Culture and Sports of the Republic of Kazakhstan" for the return of the debtor's property were canceled, the proceedings were terminated. It was established that in 2006-2008, three public procurement contracts were concluded between the State Enterprise and the LLP, in order to ensure the execution of which the LLP deposited 61,250,000 tenge to the customer's account. In 2012, by the decision of the Council of Economic and Social Council of Almaty, the LLP was declared bankrupt with the initiation of bankruptcy proceedings. In 2015, the bankrupt manager of the LLP appealed to the State Institution with a claim to repay the debt. The State Institution replied about the expiration of the limitation period, indicating the poor performance of the LLP's obligations and the late elimination of deficiencies, which precludes the return of the collateral. After that, the bankrupt manager of the LLP filed a lawsuit to recover accounts receivable. By the decision of the Council of Economic and Social Council of Astana city of June 15, 2016, which entered into force, the claim was dismissed due to the expiration of the statute of limitations. In 2016, the disputed funds were returned to the republican budget. On March 17, 2016, the bankrupt manager of the LLP re-filed a lawsuit with the Almaty City Council of Economic Cooperation. The court's decision, left unchanged by the court of appeal, satisfied the claim. It was decided to collect 16,250,000 tenge from the GU in favor of the LLP. The local courts justified debt collection by the fact that the statute of limitations does not apply to disputed legal relations, since the disputed funds are the property of an LLP that is not deprived of the right to own them. The court of cassation pointed out that the conclusions of the local courts were erroneous, since it was not taken into account that, by virtue of part 5 of Article 240 of the CPC, upon the entry into force of the court's decision, the parties and other persons involved in the case could not re-assert the same claims in court, on the same grounds, and challenge the established court facts and legal relations.
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