Protection of consumer rights from the contract in the field of trade, services

The Law of the Republic of Kazakhstan "On Consumer Rights Protection" regulates the relations that arise between consumers and manufacturers, performers, importers, sellers when selling goods (performing work, providing services), establishes the rights of consumers to purchase goods (works, services) of appropriate quality and safe for life, health, consumer property and the environment, obtaining information about goods (works, services) and their manufacturers (performers, sellers), education, state and public protection of their interests, as well as determines the mechanism for the implementation of these rights.

Consumer protection legislation regulates the relationship between a citizen who intends to order or purchase or who orders, purchases or uses goods (works, services) exclusively for personal, family, household and other needs unrelated to entrepreneurial activity, on the one hand, and an organization or individual entrepreneur producing goods for sale to consumers, selling goods to consumers under a purchase and sale agreement, performing work and providing services to consumers under a paid agreement, - on the other hand.

In accordance with the clarifications of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 25, 1996. No. 7 "On the practice of application by courts of legislation on consumer protection" as amended by the regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5, the Law of the Republic of Kazakhstan "On Consumer Protection" dated May 4, 2010 defines the legal, economic and social foundations of consumer protection, as well as measures to ensure consumers safe and high-quality goods (works, services) and regulates relations between consumers - individuals, i.e. 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).

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..

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, the Civil Code and the Law.

This resolution also states that courts should seek and study the regulatory 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 do not are subject to application (paragraph 5 of Article 3 of the Civil Code).

If the decisions of maslikhats and akims contradict legislative acts, the court must resolve the dispute on the basis of legislative acts.

The jurisdiction of cases in this category is determined in accordance with the general rules provided for in art.31 of the CPC RK, 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, in accordance with the requirements of paragraph 9 of Article 32 of the Civil Procedure Code of the Republic of Kazakhstan, at the plaintiff's choice, 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.

Considering that the claim for monetary compensation for moral damage is a non-property claim and is derived from a property claim, the question of the jurisdiction of the dispute must be resolved by a judge depending on the main claim.

At the same time, the provisions of the CPC of the Republic of Kazakhstan and the Law of the Republic of Kazakhstan "On Consumer Rights Protection" do not exclude the possibility of applying contractual jurisdiction in consumer rights protection cases.

In accordance with the principle of dispositivity of the civil procedure, the consumer has the right to determine the court itself, which has jurisdiction over the case before the court accepts the statement of claim for its proceedings.

If, at the conclusion of a contract, including a loan agreement, the consumer has exercised his right to choose the court to consider the dispute, if any, then, guided by the principle of dispositivity of the civil procedure, the dispute must be resolved by the specified court.

The inclusion in the contract of a condition on the contractual jurisdiction of the dispute does not deprive the consumer of the right to challenge such a condition of the contract in accordance with the procedure established by the current legislation.

In accordance with paragraph 4 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 25, 1996 No. 7 "On the practice of application by courts of legislation on consumer protection" and in accordance with the general rules (Article 31 of the CPC), claims are filed against an individual at his place of residence and against a legal entity at his location. At the same time, at the choice of the plaintiff (part 9 of Article 32 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.

Preliminary out-of-court procedure for resolving claims

Article 42 of the Law of the Republic of Kazakhstan "On Consumer Rights Protection" also establishes a preliminary out-of-court procedure for resolving claims of public consumer organizations. If the specified organizations have not followed such a dispute resolution procedure, and such an opportunity has not been lost, the judge in accordance with subparagraph 1) Part 1 of Article 154 of the CPC returns the application.

The law does not provide for an out-of-court procedure for resolving claims for consumers.

State duty

Due to the requirements of subparagraph 10 of Article 541 of the Code of the Republic of Kazakhstan "On Taxes and other mandatory Payments to the Budget" and Article 42 of the Law of the Republic of Kazakhstan "On Consumer Rights Protection", claims filed by public associations of consumers, associations (unions) in the interests of consumers for consideration in court are not subject to state duty.

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 110,115,116 of the CPC RK.

According to the Law of the Republic of Kazakhstan "On Consumer Rights Protection", which regulates the relations that arise between consumers and manufacturers, performers, importers, sellers when selling goods (performing work, providing services), establishes the rights of consumers to purchase goods (works, services) of appropriate quality and safe for life, health, consumer property and the environment. environment, obtaining information about goods (works, services) and their manufacturers (performers, sellers), education, state and public protection of their interests, it also defines the mechanism for exercising these rights.

Preparing the case for trial

According to Article 166 of the Civil Procedure Code of the Republic of Kazakhstan, when preparing a case for trial, the plaintiff or his representative provides the defendant with copies of evidence substantiating the factual grounds of the claim, and the defendant or his representative submits written objections to the plaintiff or his representative and the court regarding the claims, and provides the plaintiff or his representative and the judge with evidence substantiating objections to the claim.

This is due to the fact that, in accordance with the requirements of art.65 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, unless otherwise provided by federal law.

As a general rule, established by the Law of the Republic of Kazakhstan "On Consumer Rights Protection", the burden of proving circumstances exempting from liability for non-fulfillment or improper fulfillment of obligations lies with the seller (manufacturer, contractor, authorized organization or authorized individual entrepreneur, importer) (Articles 19 and 34 of the Law of the Republic of Kazakhstan "On Consumer Rights Protection).

The exception is cases of sale of goods (performance of services) of inadequate quality, when the distribution of the burden of proof depends on whether a warranty period has been established for the goods (work, service), as well as on the time of detection of defects.:

- Clause 2 of Article 17 of the Law of the Republic of Kazakhstan "On Consumer Rights Protection" - the seller (manufacturer), an authorized organization or an authorized individual entrepreneur, the importer is responsible for defects in goods for which a warranty period has not been established, if the consumer proves that they arose before the goods were transferred to the consumer or for reasons that arose before that moment;

- paragraph 4, paragraph 2, Article 17 of the Law of the Republic of Kazakhstan "On Consumer Rights Protection" - in cases where the warranty period stipulated in the contract is less than two years and defects in the goods are discovered by the consumer after the expiration of the warranty period, but within two years, the consumer has the right to present to the seller (manufacturer) the requirements provided for in Article 17 of this Law, if proves that the defects of the product occurred before its transfer to the consumer or for reasons that arose before that moment.;

- Clause 1 of Article 17 of the Law of the Republic of Kazakhstan "On Consumer Rights Protection" - in case of significant defects of the goods, the consumer has the right to submit to the manufacturer (authorized organization or authorized individual entrepreneur, importer) a claim for the gratuitous elimination of such defects if he proves that they arose before the transfer of the goods to the consumer or for reasons that arose before that moment;

- Clause 4 of Article 30 of the Law of the Republic of Kazakhstan "On Consumer Rights Protection" – the contractor is responsible for the shortcomings of the work (service) for which the warranty period has not been established, if the consumer proves that they arose before its acceptance by him or for reasons that arose before that moment.

- Clause 5 of Article 30 of the Law of the Republic of Kazakhstan "On Consumer Rights Protection" - in relation to the work (service) for which a warranty period is established, the contractor is responsible for its shortcomings, unless he proves that they arose after the acceptance of the work (service) by the consumer due to his violation of the rules for using the result of the work (service), the actions of third parties persons or force majeure (Law).

- paragraph 4 of Article 17 of the Law of the Republic of Kazakhstan "On Consumer Rights Protection" - in cases where the warranty period stipulated in the contract is less than two years and the defects of the work (service) are discovered by the consumer after the expiration of the warranty period, but within two years, the consumer has the right to make the claims provided for in paragraph 1 of this Article, if he proves that the shortcomings arose before the acceptance of the result of the work (service) or for reasons that arose before that moment;

The practice of considering consumer rights protection cases has shown that most sellers and performers, knowing about the responsibility provided for by the Law of the Republic of Kazakhstan "On Consumer Rights Protection", satisfy the consumer's requirements on a voluntary basis, and if the case goes to court, they try to settle the dispute before the court considers the case on its merits and conclude an amicable agreement with the consumer.

The specifics of consumer protection cases require, when considering a case in order to establish the presence of defects in the product and the causes of the defects, conducting a forensic examination of the case, which entails an increase in the time for consideration of the case.

When considering cases on consumer protection, judges took into account the provisions of the Plenum of the Supreme Court of the Republic of Kazakhstan dated July 25, 1996, No. 7, as amended on December 30, 2011, "On the practice of courts considering cases on consumer protection".

Moral damage is compensated by the harm-doer

By virtue of Article 21 of the Law of the Republic of Kazakhstan "On Consumer Rights Protection", moral damage caused to a consumer as a result of a violation by the manufacturer (performer, seller, authorized organization or authorized individual entrepreneur, importer) on the basis of a contract with him, his rights provided for by laws and regulatory legal acts of the Republic of Kazakhstan in the field of consumer rights protection, is compensated by the causer harm only in the presence of guilt in the amount determined by the court.

Since moral damage is determined by the court regardless of the amount of compensation for property damage, the amount of monetary compensation to be recovered for moral damage cannot be made dependent on the value of the product (work, service) or the amount of the penalty to be recovered, but should be based on the nature and extent of the moral and physical suffering inflicted on the consumer in each specific case.

In resolving the consumer's claims for monetary compensation for moral damage, the courts took into account the circumstances relevant to the proper resolution of the dispute, found out what types of suffering the plaintiff had suffered, and what they specifically expressed.

Property damage caused by products of inadequate quality is subject to compensation

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 due to constructive, manufacturing, prescription and other deficiencies is subject to full compensation according to the rules of Chapter 47 of the Civil Code of the Republic of Kazakhstan.

The damage caused is subject to compensation by the seller (manufacturer, performer) in accordance with paragraph 1 of Article 31 of the Law, regardless of his fault and regardless of whether the consumer was in a contractual relationship with him or not.

Example: On January 23, 2014, the North Kazakhstan Public Association "Association for the Protection of Consumer Rights and Entrepreneurs" filed a lawsuit in the interests of V.A. Parshukova against IP Kurilko D.P, on termination of the contract, compensation for material damage in the amount of 55,000 tenge, moral damage in the amount of 80,000 tenge, recovery of a penalty in the amount on the day of the decision, explaining that V.A. Parshukova placed an order from IP Kurilko D.P. on 11.07.2013 for the manufacture of doors in the amount of 2 pieces, with a total cost 69,000 tenge. The plaintiff made an advance payment in the amount of 35,000 tenge. Within the agreed period of three weeks, the doors were not manufactured, the defendant requested an additional prepayment in the amount of 20,000 tenge, but even after that the order was not fulfilled. V.A. Parshukova repeatedly addressed the defendant regarding the manufacture of doors, to which the defendant delayed the deadlines for the execution of the order. The doors were not manufactured before the lawsuit was filed.

Due to the unlawful actions of the defendant, V.A. Parshukova suffered moral harm, which was expressed in the fact that she experienced humiliation, irritation, anger, discomfort, and the defendant refused to satisfy her legitimate demand for a refund of the amount paid.

In accordance with art. 642 of the Civil Code of the Republic of Kazakhstan, unless otherwise provided by legislative acts or the contract, including the terms of the forms or other standard norms to which the customer subscribes, the household contract is considered concluded in proper form from the moment the contractor issues to the customer a receipt or other document confirming the conclusion of the contract.

By virtue of clause 2 of Article 277 of the Civil Code of the Republic of Kazakhstan, in cases where an obligation does not provide for a time limit for its fulfillment and does not contain conditions allowing it to determine this time limit, it must be fulfilled within a reasonable time after the obligation arises.

According to clause 1 of Article 34 of the Law of the Republic of Kazakhstan "On Consumer Rights Protection", the contractor is obliged to perform the work (provide the service) within the time period established by the contract for the performance of work (provision of services), unless otherwise established by the laws of the Republic of Kazakhstan.

Under the above circumstances, the court came to the correct conclusion about the satisfaction of the claim.

             According to clause 12, clause 1, Article 7 of the Law of the Republic of Kazakhstan "On Consumer Rights Protection", the consumer has the right to compensation for moral damage.

In accordance with Article 951 of the Civil Code of the Republic of Kazakhstan, moral harm is understood as the violation, diminution or deprivation of personal non-property benefits and rights of individuals and legal entities, including moral or physical suffering (humiliation, irritation, depression, anger, shame, despair, physical pain, inferiority, discomfort, etc.) experienced by the victim in as a result of an offense committed against him, which is subject to compensation by the causer in the presence of his guilt.

In this case, as a result of the defendant's unlawful actions, as indicated above, the plaintiff's non-property rights were violated, which, of course, she experienced humiliation, anger, irritation, and discomfort.

When determining the amount of compensation for moral damage provided for in Article 952 of the Civil Code of the Republic of Kazakhstan, the court takes into account the claimant's subjective assessment of his moral suffering and emotional experiences.

Determining the amount of compensation for moral damage, the court considered it sufficient to satisfy the claim in the amount of 15,000 tenge.

The Consumer Rights Protection Society was exempted from paying the state fee when filing a claim.

In accordance with paragraph 1 of Article 116 of the Civil Procedure Code of the Republic of Kazakhstan, the costs associated with the proceedings and the state fee from which the plaintiff was exempted are collected from the defendant, who is not exempt from paying court costs, to the state's income in full or in proportion to the satisfied part of the claim.

Based on the above, the court granted the claim of the North Kazakhstan public association "Association for the Protection of Consumer Rights and Entrepreneurs" in the interests of Victoria Alekseevna Parshukova to individual entrepreneur Dmitry Pavlovich Kurilko for termination of the contract, partial compensation for material and moral damage.

Terminated the contract for the provision of services concluded between Victoria Alekseevna Parshukova and Dmitry Pavlovich Kurilko, an individual entrepreneur, on July 11, 2013.

He recovered 55,000 (fifty-five thousand) tenge from individual entrepreneur Dmitry Pavlovich Kurilko in favor of Victoria Alekseevna Parshukova, in compensation for moral damage in the amount of 15,000 (fifteen thousand) tenge.

Relations regulated by legislation on consumer protection.

When considering civil cases, courts should take into account that a relationship in which one of the parties is a citizen who uses, acquires, orders or intends to purchase or order goods (works, services) exclusively for personal, family, household, household and other needs not related to business activities, and the other - an organization or individual entrepreneur (manufacturer, contractor, seller, importer) engaged in the sale of goods, performance of works, provision of services are relations regulated by the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code of the Republic of Kazakhstan), the Law of the Republic of Kazakhstan "On Consumer Rights Protection, other regulations and laws.

If certain types of relations involving consumers are regulated by special laws of the Republic of Kazakhstan containing norms of civil law (for example, a contract of participation in shared construction, an insurance contract, both personal and property, a bank deposit contract, a transportation contract, an energy supply contract), then the Law on Protection of Property Rights applies to relations arising from such contracts. consumer rights are applied to the extent not regulated by special laws.

b) a product should be understood as a thing(s) defined either by generic (number, weight, measure) or individual characteristics intended for sale or other introduction into civil circulation;

c) work should be understood as an action (set of actions) that has a tangible result and is performed by the contractor in the interests and at the request of the consumer on a paid contractual basis;

d) the service should be understood as an action (set of actions) performed by the contractor in the interests and at the request of the consumer for the purposes for which the service of this kind is usually used, or meeting the purposes about which the contractor was informed by the consumer at the conclusion of a paid contract;

e) a financial service should be understood as a service provided to an individual in connection with the provision, attraction and (or) placement of funds and their equivalents acting as independent objects of civil rights (provision of loans, opening and maintaining current and other bank accounts, attracting bank deposits, servicing bank cards, pawnshop transactions, etc.).

The legislation on consumer protection applies to the relations of the parties to the preliminary agreement, under the terms of which a citizen actually expresses his intention to order or purchase goods (works, services) on a paid basis exclusively for personal, family, household, household and other needs not related to business activities.

Consumer protection legislation also applies to the purchase of goods (works, services) under a paid contract, if the price is not specified in such a contract.

The legislation on consumer protection does not apply to relations involving the performance of notarial acts by a notary, as well as to relations involving the provision of professional legal assistance by lawyers.

Consumer protection legislation does not regulate citizens' relations with homeowners' associations, housing construction cooperatives, housing savings cooperatives, horticultural, horticultural and suburban non-profit associations of citizens, if these relations arise in connection with citizens' membership in these organizations. On relations regarding the provision of paid services (works) by these organizations to citizens, including members of these organizations The law on Consumer Protection is being extended.

The rights and legitimate interests of citizens who are entitled to State social assistance and who use goods or services in the course of its sale are subject to protection in accordance with the procedure provided for by legislation on consumer protection. Claims may be made against the manufacturer (seller) of these goods or the service provider.

Consumer protection legislation applies to the provision of medical services to citizens provided by medical organizations within the framework of voluntary and compulsory medical insurance.

In accordance with the requirements of Article 35 of the Law, if a consumer finds deficiencies in the work performed (service rendered), he has the right, at his discretion, to demand:

1).gratuitous elimination of deficiencies in the work performed (service rendered);

2) a corresponding reduction in remuneration for the work performed (service rendered);

3) gratuitous manufacture of another thing from a homogeneous material of the same quality or repeated performance of work (provision of services);

4) reimbursement of their expenses for the elimination of deficiencies, when the consumer's right to eliminate them is provided for in the contract.

The consumer has the right to terminate the contract and claim damages if, within the prescribed period, the deficiencies in the work performed (service rendered) have not been eliminated by the contractor or if the deviations in the work (service) deviations from the terms of the contract or other shortcomings of the work (service) are significant and unavoidable.

The requirements set out in paragraphs 10 and 11 may be presented in the event of defects being discovered when accepting a work (service) or during its execution (provision) or use within the time limits established by the Civil Code of the Republic of Kazakhstan, and if it is impossible to detect defects when accepting a work (service) during the warranty period, in the case of detection of hidden defects - one year, in relation to works related to buildings and structures, as well as, regardless of the type of work, in relation to defects that were intentionally hidden by the contractor., - three years from the date of acceptance of the work.

A claim for the gratuitous elimination of such deficiencies in the work (service) that may pose a danger to the life or health of the consumer and other persons may be submitted by the consumer or his legal successor within three years from the date of acceptance of the work (service).

Such a claim may be made regardless of when these defects are discovered, including when they are discovered at the end of the warranty period.

The deficiencies of the work (service) discovered during its execution (provision) and the deficiencies of the work performed (service rendered) must be eliminated within ten calendar days from the date of the relevant claim, unless another term is established by the contract.

The deadline set by the consumer or agreed upon by the parties for the elimination of deficiencies is fixed in the contract.

For violation of the deadlines for the start and end of the work (provision of services), as well as for violation of the deadlines for eliminating deficiencies in the work (service), the contractor is obliged to pay a penalty in the amount of one percent of the cost of the work (service) for each day of delay, unless otherwise established by the contract, the laws of the Republic of Kazakhstan.

Example: The plaintiff of the Russian State Institution "Taldykorgan City Consumer Protection Authority" filed a lawsuit against the defendant GUZ "Regional Tuberculosis Dispensary" to suspend the activities of the hospital GUZ "Regional Tuberculosis Dispensary", located at 1 Zheltoksan Street, Taldykorgan, until the identified violations were eliminated, arguing that on 14.01.2014G. by the chief specialist of the department of sanitary and hygienic supervision of the Taldykorgan city Administration for Consumer Protection (the legal successor of UGSEN in Taldykorgan), F.S. Dzheksembayeva. An unscheduled sanitary and epidemiological examination was conducted to comply with the prescription No. 03/4-248 dated 28.10.2013 of the GUZ "Regional Tuberculosis Dispensary", located at 1 Zheltoksan str., Taldykorgan.

During the inspection, it was found that the points of the above-mentioned prescription regarding supply and exhaust ventilation remained unfulfilled, namely, the supply and exhaust ventilation of the hospital was not activated, and a separate gravity-driven exhaust ventilation system was not installed.

All of the listed violations do not comply with the requirements of the sanitary rules and regulations "Sanitary and epidemiological requirements for healthcare facilities", approved by Resolution of the Government of the Republic of Kazakhstan dated January 17, 2012 No. 87, paragraph 90 of paragraph 2.

During the court session, it was established that the elimination of violations had been planned since 2009, however, to date, the problem of proper functioning at the facility has not been resolved for various reasons, and therefore, the court considers that this cannot serve as a basis for further violation of the sanitary norms and rules established by the legislation of the Republic of Kazakhstan and endanger life and health of people. In addition, the court found that the supply and exhaust ventilation system is not functioning, which the defendant does not deny and indicates in his objection submitted to the court, which is unacceptable in accordance with sanitary requirements.

In paragraphs 90, 91 of Section 2 of the Sanitary Rules "Sanitary and epidemiological requirements for healthcare facilities", approved by Resolution No. 87 of the Government of the Republic of Kazakhstan dated January 17, 2012, it is stipulated that buildings are equipped with supply and exhaust ventilation systems with artificial stimulation. In infectious and tuberculosis hospitals (departments), a separate gravity-driven exhaust ventilation system is installed in each box and semi-box in the ward section, equipped with air disinfection devices and a deflector. In the absence of artificially induced ventilation in the infectious diseases departments, natural ventilation is equipped with a recirculating air disinfection device for each box and half-box. In all rooms, except for operating rooms, in addition to mechanical forced ventilation, there must be natural ventilation.

145 of the Code of the Republic of Kazakhstan "On the Health of the People and the Healthcare system", sanitary rules and hygienic standards establish sanitary and epidemiological requirements, including for the maintenance and operation of industrial, public, residential and other premises, buildings, structures, for the design, construction, reconstruction, repair and commissioning and maintenance of facilities., as well as to the air and microclimate of industrial, residential and other premises.

According to Part 2 of Article 53 of the Code of Administrative Offences of the Republic of Kazakhstan (hereinafter referred to as the Administrative Code), a statement of claim for suspension of activities or certain types of activities of a legal entity is sent to court in accordance with the procedure and on the grounds established by legislative acts of the Republic of Kazakhstan. The application is considered by the court within ten days.

Based on the requirements of paragraph 3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 26, 2004 No. 18 "On certain issues of the application of legislation on administrative offenses by courts" in cases where the sanction of the relevant article of the special part of the Administrative Code does not provide for such a measure of punishment as suspension or prohibition of activities, the issue of suspension or prohibition of the activities of a legal entity is subject to consideration by the court in the order of claim proceedings. In this case, the relevant body (official) must attach to the statement of claim a protocol on an administrative offense drawn up in respect of a person whose suspension or prohibition of activity is subject to court review, or a decision on bringing to administrative responsibility.

According to the results of the sanitary and epidemiological examination of the GUZ "Regional Tuberculosis Dispensary" to verify the fulfillment of a previously issued prescription, on January 14, 2014, a protocol on administrative offenses No. 09 was drawn up against the first head of the inspected institution, Sarsembaev S.S., in connection with administrative liability under Part 3 of Article 356 of the Administrative Code of the Kyrgyz Republic, as for non-compliance the legal requirements of the regulation. Despite the fact that this protocol states that the person against whom the administrative case was initiated refused to sign and provide explanations, and there is a corresponding record of the person who drew up the protocol, at the hearing the defendant Sarsembayev S.S. admitted a violation, expressed in the lack of proper functioning of the ventilation system.

In accordance with paragraph 4 of Article 24 of the Law of the Republic of Kazakhstan "On State Control and Supervision in the Republic of Kazakhstan" dated January 06, 2011, upon violations identified as a result of the audit, the audited entity is obliged to provide information on measures to be taken to eliminate the identified violations no later than three working days, in the absence of objections, indicating the deadlines to be agreed. with the head of the government agency that conducted the audit.

The specified requirements of the law were not fulfilled by the defendant.

On the basis of Part 1 of Article 636 of the Administrative Code of the Kyrgyz Republic in cases of administrative offenses considered by the courts, protocols on administrative offenses may be drawn up by authorized officials of sanitary and epidemiological surveillance authorities. Part 3 of Article 356 of the Administrative Code of the Kyrgyz Republic does not provide for such a measure of punishment as suspension or prohibition of activities. In this connection, the plaintiff reasonably filed a lawsuit with the court.

The decision of the specialized interdistrict Economic Court of the Almaty region satisfied the claim of the Russian State Institution "Taldykorgan City Administration for Consumer Protection".

-the operation of the hospital of the Regional Tuberculosis Dispensary, located at 1 Zheltoksan str., Taldykorgan, has been suspended until the identified violations are eliminated.

By the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Almaty Regional Court dated April 29, 2014, the court's decision remained unchanged.

By the decision of the cassation instance of the Almaty Regional Court, the decision of the specialized Interdistrict Economic Court of the 15th Almaty region dated March 03, 2014 and the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Almaty Regional Court dated April 29, 2014 remained unchanged.

A significant disadvantage of a product (work, service), a disadvantage of a technically complex product

Based on the preamble of the Law on Consumer Protection, a significant defect in a product (work, service), which has legal consequences, should be understood as:

a) an unavoidable defect of a product (work, service) is a defect that cannot be eliminated by taking measures to eliminate it in order to bring the product (work, service) in accordance with the mandatory requirements provided for by law or in accordance with the procedure established by it, or the terms of the contract (in their absence or incompleteness of the terms - usually imposed requirements), leading to the impossibility or inadmissibility of using this product (work, service) for the purposes for which the product (work, service) of this kind is usually used, or for the purposes about which the seller (contractor) was notified by the consumer at the conclusion of the contract, or by the sample and (or) description when selling the goods according to the sample and (or) according to the description;

b) a disadvantage of a product (work, service) that cannot be eliminated without disproportionate costs is a disadvantage whose elimination costs are close to or exceed the cost of the product (work, service) itself or the benefit that could be obtained by the consumer from its use.

With respect to a technically complex product, the disproportionality of the costs of eliminating defects in the product is determined by the court based on the characteristics of the product, the price of the product or its other properties.;

c) a shortage of goods (work, services) that cannot be eliminated without a disproportionate expenditure of time is a defect that takes time to eliminate, exceeding the time limit set by the written agreement of the parties and limited to forty-five days for eliminating the shortage of goods, and if such a period is not defined by the agreement of the parties, the time exceeding the minimum the period objectively necessary to eliminate this shortcoming in a commonly used manner;

d) a shortage of goods (work, service) identified repeatedly - various deficiencies of the entire product identified more than once, each of which individually makes the product (work, service) not meet the mandatory requirements provided for by law or in accordance with the procedure established by it, or the terms of the contract (in their absence or incompleteness of the conditions - usually imposed requirements) and leads to the impossibility or inadmissibility of using this product (work, service) for the purposes for which the product (work, service) of this kind is usually used, or for the purposes about which the seller (contractor) has been notified by the consumer at the conclusion of the contract, or to the sample and (or) description when selling the goods according to the sample and (or) description; e) a defect that reappears after its elimination - a defect in the goods that reappears after measures to eliminate it.

With regard to a technically complex product, in accordance with the requirements of the Law on Consumer Protection, various defects of the product should be understood as a defect of the product, which together take time to eliminate, resulting in the inability to use the product (work, service) for more than thirty days during each year of the warranty period.

Example: On November 08, 2013, the North Kazakhstan Public Association "Association for the Protection of Consumer Rights and Entrepreneurs" in the interests of Ilyasova D.M. filed a lawsuit against the defendant for termination of the contract of sale, compensation for damages, recovery of penalties, moral damages, stating that in May 2013 Ilyasova D.M. acquired from the defendant The Nokia 6700 classic cell phone, worth 28,000 tenge, is in the Planeta boutique. After using the product for a week, a defect was discovered: the phone was turned off, despite the battery being fully charged.

Repairs were carried out by the defendant, and when the phone was returned, the receipt and warranty card were seized by the staff. After the repair, the defect was not eliminated, and the plaintiff appealed to the defendant with a request to replace the low-quality goods with high-quality ones, eliminate the defects free of charge, or refund the money, which was refused. On 18.10.2013, the plaintiff filed a written application with the JSC "AZPPiP", after which a written claim No. 1540 dated 22.10.2013 was sent to the defendant.

The defendant received the claim, which is confirmed by the signature, but the issue was not resolved in a pre-trial order. In addition, the plaintiff points out that she suffered moral harm, expressed in moral suffering. He asked to terminate the purchase and sale agreement between the defendant and the consumer, to recover from the defendant in favor of Ilyasova D.M. material damage in the amount of 28,000 tenge paid for the goods, a penalty at the rate of 1% of the total value of the goods for each day of delay from the moment the defendant received the claim from 24.10.2013 until the court decision, moral damage in the amount of in the amount of 50,000 tenge.

According to clause 6 of Article 7 of the Law of the Republic of Kazakhstan "On Consumer Rights Protection", consumers have the right to proper quality of goods (works, services).

In accordance with paragraph 2 of Article 17 of the Law of the Republic of Kazakhstan "On Consumer Rights Protection", if a warranty period is established for the product, the consumer has the right to make claims related to defects in the product if defects in the product are found during the warranty period. The warranty period begins to run from the moment the goods are handed over to the buyer, unless otherwise stipulated in the contract.

Paragraph 1 of Article 15 of the Law of the Republic of Kazakhstan "On Consumer Rights Protection" regulates the rights of the consumer in case of sale of goods of inadequate quality, namely, the consumer, at his choice, has the right to demand a proportionate reduction in the purchase price; gratuitous elimination of defects in the goods; reimbursement of his expenses for eliminating defects in the goods; replacement with goods of a similar brand (model, article); replacement with the same product of another brand (model, article) with a corresponding recalculation of the purchase price; termination of the contract and refund of the amount of money paid for the product. The right to compensation for damages remains with the consumer, regardless of the claim chosen by him, specified in subitems 1) - 6) of the first part of this paragraph.

At the hearing, it was established that D.M. Ilyasova had been sold goods of inadequate quality, according to technical opinion No. 0395 dated 12/20/2013 issued by the service center, based on testing, the commission concluded that there were no traces of moisture, no traces of impacts, and the phone was inoperable due to systematic shutdown. Cold soldering, manufacturing defect, which is a typical malfunction of this model.

The plaintiff filed a claim within the warranty period, however, the defendant's obligations to refund the amount paid for the goods have not been fulfilled, whereas in accordance with paragraph 1 of Article 15 of the Law of the Republic of Kazakhstan "On Consumer Rights Protection", the plaintiff has the right to demand termination of the contract of sale of a Nokia 6700 classic cell phone, worth 28,000 tenge, concluded with the defendant May 14, 2013.

In accordance with art.272 of the Civil Code of the Republic of Kazakhstan, 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.

According to art.428, paragraph 1, paragraph 5 of the Civil Code of the Republic of Kazakhstan, the right to demand termination of the contract remains with the buyer.

According to paragraph 6 of Article 30 of the Law of the Republic of Kazakhstan "Consumer Rights Protection", for late fulfillment of consumer requirements, the seller (manufacturer), who committed such violations, pays the consumer a penalty in the amount of one percent of the value of the goods for each day of delay, unless otherwise established by the laws of the Republic of Kazakhstan.

In accordance with paragraph 12 of Article 7 of the Law of the Republic of Kazakhstan "On Consumer Rights Protection", the consumer has the right to compensation for moral damage.

According to Articles 951, 952 of the Civil Code of the Republic of Kazakhstan, moral harm is a violation, diminution or deprivation of personal non-property benefits and rights of individuals and legal entities, including moral or physical suffering (humiliation, irritation, depression, anger, shame, despair, physical pain, inferiority, discomfort, etc.) experienced (suffered, experienced) by the victim as a result of the offense committed against him.

According to Article 21 of the Law of the Republic of Kazakhstan "On Consumer Rights Protection", Ilyasova D.M. is subject to compensation for moral damage, since her rights provided for by the Law "On Consumer Rights Protection", namely the right to proper product quality, were violated. However, the amount of compensation claimed by the plaintiff does not comply with the principles of fairness and sufficiency established by the Regulatory Decree of the Supreme Court of the Republic of Kazakhstan dated 06/21/2001 No. 3 "On the application of legislation on compensation for moral damage by courts", there is no intent on harm on the part of the defendant, therefore the court considers it necessary to reduce the amount of the claimed moral damage, and to recover 10 000 tenge in favor of Ilyasova D.M.

By the decision of the Petropavlovsk court No. 2, the claim of the North Kazakhstan Public Association "Association for the Protection of Consumer Rights and Entrepreneurs" in the interests of Ilyasova Diana Maulitovna to individual entrepreneur Gavryuk Olga Igorevna for termination of the contract, compensation for material damage, penalties and moral damage was partially satisfied.

-terminate the purchase and sale agreement for a Nokia 6700 classic cell phone, worth 28,000 tenge, concluded on May 14, 2013 between Diana Ilyasova and Olga Igorevna Gavryuk, an individual entrepreneur.

The amount of 28,000 (twenty-eight thousand) tenge paid for the goods, a penalty in the amount of 20,160 (twenty thousand one hundred and sixty) tenge, 10,000 (ten thousand) tenge compensation for moral damage, and 5,000 (five thousand) tenge compensation for the preparation of a technical opinion were recovered from Olga Igorevna Gavryuk, an individual entrepreneur. thousand) tenge, a total of 63,160 (sixty-three thousand one hundred and sixty) tenge.

Procedural features of consideration of consumer protection cases

Cases on claims related to violation of consumer rights, by virtue of article 22 of the Law on Consumer Rights Protection and article 32 of the Civil Procedure Code of the Republic of Kazakhstan, are subject to the jurisdiction of courts of general jurisdiction.

The subjects of applying to the court for consumer protection disputes are: citizens of the Republic of Kazakhstan, foreign citizens and stateless persons; the prosecutor; the executive authority authorized to carry out state supervision in the field of consumer protection, and its territorial bodies, as well as other bodies in cases established by law (hereinafter referred to as authorized bodies); local government bodies; public consumer associations (their associations, unions) that have the status of a legal entity.

A citizen registered as an individual entrepreneur has the right to apply to a court of general jurisdiction for protection on transactions concluded by him with a seller (performer) when selling goods (performing works, rendering services) exclusively for personal, family, household, household and other needs not related to his entrepreneurial activity.

In the event of termination of the state registration of a citizen as an individual entrepreneur, in particular due to the expiration of the certificate of state registration or cancellation of the state registration, the consumer has the right to apply to the court to the specified person with claims related to his previous activities for the sale of goods (performance of work, provision of services).

Cases on applications for the liquidation of the manufacturer (contractor, seller, authorized organization, importer) or for the termination of the activity of an individual entrepreneur (authorized individual entrepreneur) for repeated (two or more times within one calendar year) or gross (resulting in death or mass diseases, poisoning of people) violation of consumer rights filed by officials of the authorized body. bodies subordinate to the court of general jurisdiction.

In accordance with article 6 of the Law on Consumer Rights Protection, State bodies within their competence:

1) consider the appeals of individuals or legal entities in the field of consumer protection;

2) apply liability measures to violators of the legislation of the Republic of Kazakhstan on consumer rights protection;

3) monitor compliance with the legislation of the Republic of Kazakhstan on consumer rights protection;

4) exercise other powers provided for by the laws of the Republic of Kazakhstan, acts of the President of the Republic of Kazakhstan and the Government of the Republic of Kazakhstan.

Authorized bodies, local self-government bodies, public associations of consumers (their associations, unions) having the status of a legal entity, in order to carry out their statutory activities, have the right to apply to the court to protect the rights and legitimate interests of a particular consumer (consumer group) only if there is their respective request (requests) expressed in the complaint (complaints) submitted (submitted) in writing.

In accordance with paragraph 2 of Article 17 of the Law on Consumer Rights Protection, claims in this category of cases are submitted to the court at the place of residence or residence of the plaintiff, or at the place of conclusion or execution of the contract, or at the location of the organization (its branch or representative office) or at the place of residence of the defendant, who is an individual entrepreneur.

Cases of disputes over the protection of non-property rights of consumers (for example, in case of refusal to provide necessary and reliable information about the manufacturer), as well as property claims that cannot be assessed, as well as claims for compensation for moral damage, are within the jurisdiction of the district court.

Applications of an authorized body, a local government body, a public association of consumers (their associations, unions) with the status of a legal entity for the protection of the rights of an indefinite circle of consumers are considered by the court in compliance with the general rules of jurisdiction provided for in Article 31 of the CPC RK, at the location of the defendant.

Authorized bodies exercising their duties to protect the rights and legally protected interests of consumers and local self-government bodies may, prior to the court's decision on the case, enter into the case on their own initiative or on the initiative of persons participating in the case, and are also involved in the case by the court as authorized bodies entering into the process in accordance with for the purpose of giving an opinion on the case. In this case, the involvement of these authorities in the process as third parties is not allowed.

When resolving consumer claims, it is necessary to take into account that the burden of proving circumstances exempting from liability for non-fulfillment or improper fulfillment of obligations, including for causing harm, lies with the seller (manufacturer, contractor, authorized organization or authorized individual entrepreneur, importer).

The exception is cases of sale of goods (performance of work, provision of services) of inadequate quality, when the distribution of the burden of proof depends on whether a warranty period has been established for the goods (work, service), as well as on the time of detection of defects.

Ways to protect and restore violated consumer rights

When considering cases that have arisen in connection with the exercise and protection by the consumer of his rights enshrined in the Law on Consumer Protection, it should be borne in mind that the legislation of the Republic of Kazakhstan, as well as the contract may provide for the liability of the manufacturer (contractor, seller, authorized organization or authorized individual entrepreneur, importer) for the violation of obligations for which The Law on Consumer Rights Protection does not provide for liability or establishes a higher amount of liability.

Such conditions of liability of the manufacturer (contractor, seller, authorized organization or authorized individual entrepreneur, importer), provided for by law or a contract with the consumer, must be taken into account by the court when resolving a dispute that subsequently arose between these persons.

When considering cases that have arisen in connection with the exercise and protection by the consumer of his rights enshrined in the Law on Consumer Protection, it should be borne in mind that the legislation of the Republic of Kazakhstan, as well as the contract may provide for the liability of the manufacturer (contractor, seller, authorized organization or authorized individual entrepreneur, importer) for the violation of obligations for which The Law on Consumer Rights Protection does not provide for liability or establishes a higher amount of liability.

Such conditions of liability of the manufacturer (contractor, seller, authorized organization or authorized individual entrepreneur, importer), provided for by law or a contract with the consumer, must be taken into account by the court when resolving a dispute that subsequently arose between these persons.

Losses caused to the consumer in connection with a violation by the manufacturer (contractor, seller, authorized organization or authorized individual entrepreneur, importer) of his rights are subject to full compensation, except in cases where the law establishes a limited amount of liability. At the same time, it should be borne in mind that losses are compensated in excess of the penalty (penalty fee) established by law or contract, and also that payment of the penalty and compensation for losses do not release the person who violated the consumer's right from fulfilling in kind the obligations imposed on him to the consumer.

Losses should be understood as expenses that the consumer, whose right has been violated, has incurred or will have to incur in order to restore the violated right, loss or damage to his property (real damage), as well as lost income that the consumer would have received under normal conditions of civil turnover if his right had not been violated (lost profits). If the person who violated the consumer's right received income as a result of this, the consumer has the right to demand compensation, along with other losses, for lost profits in an amount not less than such income.

Considering this, when considering the consumer's claims for damages related to the return of goods of improper quality, the court has the right to satisfy the consumer's claim for recovery of the difference between the price of such goods established by the contract of sale and the price of similar goods at the time of satisfaction of claims for recovery of the amount of money paid for goods of improper quality.

If a citizen submits a claim for invalidation of a transaction, the provisions of the Civil Code of the Republic of Kazakhstan shall apply.

The court must bear in mind that the consumer has the right to choose the type of claims that may be brought against the seller when selling goods of inadequate quality, if its shortcomings have not been specified by the seller.

In this case, the consumer has the right to demand the replacement of a technically complex product or to refuse to execute the purchase agreement and demand a refund of the amount of money paid for the product, regardless of how significant the deviations from the quality requirements of the product were, provided that such claims were made within fifteen days from the date of its transfer to the consumer.

Citizens' requirements for the quality of software used in a technically complex product (for example, for the operating system that serves to ensure its functioning) should be considered as requirements for the quality of the product as a whole, taking into account its consumer properties.

When the court decides on compensation for moral damage to the consumer, the established fact of violation of consumer rights is a sufficient condition for satisfying the claim. The amount of compensation for moral damage is determined by the court regardless of the amount of compensation for property damage, and therefore the amount of monetary compensation to be recovered for moral damage cannot be made dependent on the value of the product (work, service) or the amount of the penalty to be recovered.

The amount of compensation awarded to the consumer for moral damage in each specific case must be determined by the court, taking into account the nature of the moral and physical suffering inflicted on the consumer, based on the principle of reasonableness and fairness.

If the court satisfies the consumer's claims in connection with a violation of his rights established by the Law on Consumer Protection, which were not voluntarily satisfied by the manufacturer (performer, seller, authorized organization or authorized individual entrepreneur, importer), the court shall recover a fine from the defendant in favor of the consumer, regardless of whether such a claim was made to the court.

When resolving consumer protection claims, it should be borne in mind that, as a general rule, the manufacturer (contractor, seller, authorized organization or authorized individual entrepreneur, importer) is the subject of liability regardless of the participation of third parties (agents) in consumer dealings.

The legal basis for regulating consumer rights:

-The Constitution of the Republic of Kazakhstan;

- The Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code of the Republic of Kazakhstan);

-The Code of the Republic of Kazakhstan "On Taxes and other mandatory payments to the Budget" The Civil Procedure Code of the Republic of Kazakhstan;

-The Law of the Republic of Kazakhstan dated 4.05.2010 "On Consumer Rights Protection" as amended by the Law of the Republic of Kazakhstan dated 29.12.2014 No. 269- V (effective from 01.01.2015).

-Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 25, 1996 No. 7 "On the practice of application by courts of legislation on consumer protection" as amended by the regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 30, 2011 No. 5.

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