Recognition of movable property as ownerless and recognition of the right of communal ownership of immovable property

The requirements of the law for the consideration of this category of cases are set out in the norms of substantive and procedural laws.

The procedural requirements of the law are set out in detail in Chapter 36, Articles 314-317 of the CPC. Cases in this category are classified as special cases.

The content of the application for recognition of the thing as ownerless, acceptance of the application for production

               According to Article 315 of the CPC, an application for recognition of a movable thing as ownerless and recognition of the right of communal ownership must specify which thing is to be recognized as ownerless, describe its main distinguishing features, and provide evidence indicating that the owner abandoned the thing without intending to retain ownership of it, and evidence indicating that the applicant took possession of the movable a thing.

When recognizing the right of communal ownership, the date of registration as ownerless property should be indicated in the application. It follows from this rule of law that the application must contain two types of information.

Signs. Among the signs of a thing, its dimensions, color, cost, numbers, markings, year of manufacture, color and other distinctive and individualizing signs should be described, in relation to an immovable thing - address, land registry number, etc.

Proofs. A. The evidence indicating the owner's renunciation of ownership includes, first of all, notarized written refusals, written refusals addressed to the State authority or its bodies, witness statements that movable items were abandoned by the owner or otherwise abandoned by him in order to renounce ownership of them (abandoned items)..

As evidence indicating the absence of the owner of an ownerless immovable, there may be acts of inventory of property, documents confirming the absence of information in the state register of real estate, publications of information about property in order to identify the owner, other written, as well as witness statements. b. Evidence that the person submitting the application owns the movable thing. c. Evidence of the statement the immovable property is registered with the registration authority of the state.

In the absence of such information in the application, the court has the right to leave the application without motion. Jurisdiction and jurisdiction of cases.

At the stage of acceptance of the application for production, it is necessary to determine the jurisdiction of the case and its jurisdiction.

Cases of this category cannot be considered by Specialized Inter-district Economic Courts due to the absence of a dispute.

According to Article 314 of the CPC, territorial jurisdiction is determined by the place of residence of an individual or the location of an organization that has taken possession of a movable thing. Or, in relation to immovable property, cases are subject to consideration at the location of this property.

The grounds for recognizing a thing as ownerless and the right of communal ownership are provided for by the norms of material laws: the norms of the Civil Code, the Law "On State Property".

Ownerless is a thing that, firstly, has no owner, or, secondly, the owner of which is unknown, or, thirdly, the ownership of which the owner has renounced.

Refusal may be expressed in non-fulfillment of the duties of the owner, or public renunciation of property. The purpose of legislation is to involve things in civil circulation, to prevent the destruction of things.

The result of the review. As a result of the consideration of the case in court, the ownerless thing has an owner: – either the owner becomes the owner, or the right of communal ownership of the thing arises. The consequences of recognizing movable and immovable property as ownerless are different. The court's decision must specify who has the right of ownership.

As the generalization has shown, courts often do not adhere to the wording of the procedural law when drafting the operative part of the decision.

Preparation and judicial review of cases on the recognition of movable property as ownerless, recognition of the right of communal ownership of immovable property. At the stage of preparation, the judge finds out which persons (the owner, the actual owners, and others) can provide information about the ownership of the property, the registration of rights to it, and also requests information from the organization, interested persons provide feedback on the application.

The individualization of a thing at the stage of preparation is one of the important points of consideration of the case.

As indicated in art. 314 part 1 of the CPC, the application must indicate the distinguishing features. These signs of a thing should be clarified at the preparation stage in order to reflect them in the decision. Accordingly, such signs should also be indicated in the operative part. This requirement of the law is not always respected in decisions. A study of the cases has shown that in most cases the courts correctly determine the range of circumstances relevant to the case.

However, sometimes courts unreasonably expand the range of circumstances to be established in a case. A court decision.The requirements for the solution are general in nature. The studied decisions comply with the requirements of Articles 221 and the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 5 "On judicial decision".

The operative part of the decision should contain the information specified in art. 317 of the CPC: in respect of movable property, a decision to recognize the movable property as ownerless and transfer it to the applicant's ownership, in respect of immovable property, a decision to recognize the immovable property as ownerless and recognize the right of communal ownership to it.

317 of the CPC it follows that the court has no right to make decisions • on the recognition of state ownership of an ownerless thing, • on the transfer of the thing to the income of the state. • about the destruction of a thing , etc . Subjects.

According to art. 314 of the CPC, an application for recognition of a movable thing as ownerless is submitted by an individual or an organization.

Taking possession of this item is required as a prerequisite for accepting the application. An application for recognition of the right of communal ownership of immovable property is filed with the court by the body authorized to manage communal property. Interested parties. The participation of an interested party is mandatory.

Consideration of a case without involving interested parties is a violation of the procedural law. 170, Part 3 of the CPC, the court must identify and involve in the case all persons who may be interested in the outcome of the case.

The largest number of cases considered in this category of cases relate to real estate. Among them, cases related to housing, extortionate property and land plots are most often considered.

When considering cases of this category of property, the following range of circumstances must be established:

ownerless immovable property is registered by the body that carries out the state registration of rights to immovable property.;

basis : at the request of the relevant authorized body of the city of republican significance, capital, district, city of regional significance, on the territory of which it was identified, in accordance with the Land Code of the Republic of Kazakhstan.

submission of an application to the court after the expiration of a one-year period from the date of registration of an ownerless immovable

the local executive body of cities of republican significance, the capital, districts, cities of regional significance may apply to the court, taking into account the requirements of paragraph 2 of art. 314 of the CPC RK.

if the owner renounces the right of ownership by announcing this, the local executive body applies to the court with a request to recognize this thing as having entered communal ownership from the moment of the announcement of the refusal.

Thus, one of the innovations is always the judicial procedure for deciding whether to recognize a land plot as having entered communal ownership, regardless of whether the waiver of private ownership of the land plot was voluntary.

Housing has no differences from other immovable properties. However, it is rare for courts to refer to Regulatory Rulings of the Supreme Court when applying this rule. In this group of objects, there are cases when property is recognized as ownerless, while it is in the possession and use of persons who are not the owner, but at the same time are bona fide owners.

Kostanay City Court of Kostanay region considered case No. 2-3252/2015 on the application of the Akim of Kostanay to interested persons of the State Institution "Justice Department of Kostanay", Marina Nikolaevna Zhadko on recognition of the right of communal ownership of an apartment registered for JSC BEREKELI.

Zhadko, objecting to the application, explained to the court that in 1993, an exchange took place between Zhadko and JSC Berekeli, namely, M. Zhadko and her father, N. Zhadko, presented JSC Berekeli with apartment No. 73 at No. 14 Abaya Street in Kostanay, in return, JSC Berekeli gave them two apartments: No. 29 in building 1 of the 6th microdistrict in Kostanay and apartment No. 51 in building 156 on Baymagambetova St. in Kostanay.

However, the barter agreement was not formalized. Subsequently, Berekeli JSC was liquidated without transfer of succession - approximately in 1998-2000. After repeated appeals, on the basis of Akim's decree No. 447 dated 04/02/2004, a contract of employment was concluded with M. Zhadko. From the moment of settlement until the liquidation of JSC Berekeli, as well as after its liquidation, she has owned the dwelling as her property for 20 years, appealed to the court with a claim for recognition of ownership rights due to the statute of limitations, and also challenged Akim's resolution No. 447 dated 04/02/2004 and the lease agreement dated 04/02/2004.

However, by the decision of the Kostanay City Court of 11.11.2013, her claim was denied. As of today, Zhadko M. She was left without an apartment. The court granted the application, the objections of the person concerned were not taken into account.

If the ownership right is not registered with anyone, then the property is state property.

According to part 1 of art . 36 of the Law "On State Property" "If there is no dispute about the recognition of ownership of a building, structure and other immovable property placed on the balance sheet of a state-owned legal entity before the introduction of the system of state registration of rights to immovable property in the Republic of Kazakhstan, the right of state ownership of this property, in the absence of the necessary title documents, it can be confirmed by documents of the authorized body for state property (local executive body) on the location of such property as part of state property.

Part 2 of this article states that "All historical and cultural monuments, as well as monuments of urban planning and architecture, archeology, located on the territory of the Republic of Kazakhstan and not owned by individuals and legal entities, are the property of the Republic of Kazakhstan."

This rule of law is not applied by the courts. Civil case No. 2-124 on the claim of the Akimat of Bukhar-Zhyrau district "On recognition of the monument to the memory of those who died during the Great Patriotic War as ownerless and entered into communal ownership" was considered. Meanwhile, the monument was and remained in state ownership.

The non-privatized state property of the Kazakh SSR is recognized by the courts as ownerless.

According to the "Order of state accounting of the housing stock of the Republic of Kazakhstan", approved by the Resolution of the Cabinet of Ministers of the Republic of Kazakhstan dated June 3, 1993. No. 458, adopted in accordance with Article 9 of the Housing Code of the Republic of Kazakhstan, the Cabinet of Ministers of the Republic of Kazakhstan decided: The state housing stock includes residential buildings and living quarters in other buildings under the jurisdiction of local Councils of People's Deputies (communal housing stock), under the jurisdiction of ministries, state committees and departments, state-owned enterprises, institutions and organizations (departmental housing stock), as well as those owned by state-owned enterprises, built or acquired by them at the expense of own funds (housing stock of enterprises).

BULLETIN of the Supreme Court of the Republic of Kazakhstan (2015, No. 8, p.44) writes: on February 11, 1992, the Cabinet of Ministers of the Republic of Kazakhstan provided an explanation on the privatization of state property, according to which all housing built before 01.01.1991, including housing stock, is on the balance sheet of local councils of people's deputies, enterprises and organizations, as well as houses that are assigned the right of full economic management or transferred to the operational management of enterprises, institutions and organizations belong to state ownership.

At the same time, according to paragraph 3 of the Normative Resolution of the Supreme Court2, the state and its bodies do not have the right to relinquish ownership of their housing, except in cases of alienation in accordance with the established procedure.

Thus, in this case, it can be concluded that immovable property built before 01.01.1991 and which does not have an owner whose rights are registered in accordance with the established procedure belongs to the state and cannot be acquired on the basis of the statute of limitations."

It seems that the Supreme Court unreasonably indicated registration in accordance with the established procedure. Until 1991, registration was carried out at the Bureau of Technical Inventory (BTI). After the publication of the law "On state registration and the creation of the RSE "Real Estate Center", etc., computerization of data, it turned out that many objects were not re-registered and were not included in today's database. It is very common to find privatization contracts with the BTI seal on them, but upon request to the Department of Justice it turns out that there is no information on them, these objects do not legally exist. As employees of the registration authorities explain, not all objects were transferred to them, and also often objects were not entered into the database.

Frequent failures in the program also contributed to this. Therefore, it seems that all objects that were not personally owned or owned by trade unions or cooperatives before 01.01.1991 should be considered state property. State property can be transferred to private ownership only through privatization. If no privatization agreement has been concluded, then the transfer of unregistered housing or other property to communal ownership seems incorrect, since communal ownership is a type of state ownership.

Courts often transfer property that was not registered as state property due to the inaction of the executive authorities or due to their lack of money for registration to communal ownership as having no owner. This unreasonably increases the workload of the vessels.

Land plots.

               In relation to land plots, when considering applications, the courts should keep in mind the simultaneous effect of three normative acts: the Civil Code. CC and art. 23 of the Law "On State Property". The norms of Article 23 of the Law of the Republic of Kazakhstan "On State Property dated March 1, 2011 regulate the acquisition of state ownership of ownerless immovable property.

               Renunciation of the right of ownership of a land plot or the right of land use.

               In relation to land plots, clarification of the provisions of two codes is required: part 3 of Article 82 of the CC refers to Article 242 of the Civil Code. Part 3 of Article 82 of the CC states: The owner may renounce ownership of the land plot belonging to him by announcing this or by performing other actions that definitely indicate his removal from his rights to the land plot without intending to preserve this right.

An analysis of this rule allows us to conclude that the Code provides for two cases indicating the owner's renunciation of ownership rights.

1) the announcement of the owner's renunciation of ownership;

2) the commission by the owner of other actions that clearly indicate his removal from his rights to the land plot without the intention to preserve this right. Such a conditional division affects the further actions of the participants in the legal relations that have arisen.

Further, the norm of Part 2 of paragraph 1 of Article 82 of the CC RK prescribes :

The waiver of the right of temporary land use or the right of temporary use of a privately owned land plot is carried out in accordance with the procedure established for the termination of a lease agreement or an agreement on temporary gratuitous land use. Along with this norm, Article 82 of the CC RK contains paragraph 4, according to which the rules of this article also apply to cases of refusal of land users from the right of land use.

Taking into account the above, we believe that the norms of Part 2, paragraph 1, of Article 82 of the CC RK apply when the land user has announced the waiver of the right of land use, in this case, the norms of paragraph 2, paragraph 3, of Article 81 of the CC RK apply.

The rules of art.82 of the CC RK apply to cases where land users renounce the right to land use only when they commit actions that clearly indicate their removal from their rights to the land plot without the intention to preserve this right.

This conclusion is based on the following, it is not difficult if the land user wants to give up the right of land use himself, and since a lease agreement has been concluded between the parties, then, accordingly, it is subject to termination by mutual agreement of the participants in the land relations, therefore, the norms of Part 2, paragraph 1, art.

They contain a reference rule stating that the waiver of the right of temporary land use is carried out in accordance with the procedure established for the termination of a lease agreement or an agreement on temporary gratuitous land use.

The difficulty is presented by cases when a land user does not officially announce the waiver of the right of land use, but commits other actions that definitely indicate his removal from his rights to the land plot without the intention to preserve this right. The land user does not use the land plot for its intended purpose and its actual location is unknown, that is, the state cannot forcibly seize the land plot from the land user in accordance with the procedure provided for in art. 92, 93 CC RK, in this case, the norms of art. 82 CC RK are subject to application to such a land user.

The current norm since 2011 1) paragraph 2 of art. 82 of the CC RK in a new version states that in case the owner renounces ownership of a land plot, this land plot is registered as an ownerless immovable thing in accordance with Article 242 of the Civil Code of the Republic of Kazakhstan.

An analysis of this norm and a reference to Article 242 of the Civil Code of the Republic of Kazakhstan stating that a land plot is registered as an ownerless immovable in accordance with Article 242 of the Civil Code of the Republic of Kazakhstan allows us to conclude that the norms of Article 242 of the Civil Code of the Republic of Kazakhstan are applicable only in terms of registration as an ownerless thing.

There is a question: are the norms of art. 242 of the Civil Code of the Republic of Kazakhstan applicable in terms of the procedure for recognizing an ownerless thing that has entered communal ownership? Since the norms of land legislation do not regulate the procedure for recognizing an ownerless land plot as state property, it is possible that the norms of paragraph 3 of Article 242 of the Civil Code of the Republic of Kazakhstan are subject to application. This conclusion is based on the following.

According to paragraph 4 of Article 6 of the Land Code of the Republic of Kazakhstan, property relations in the ownership, use and disposal of land plots, as well as transactions with them, are regulated by the civil legislation of the Republic of Kazakhstan, unless otherwise provided by land legislation.

According to paragraph 3 of Article 242 of the Civil Code of the Republic of Kazakhstan, if the owner renounces the right of ownership by declaring it, the local executive body applies to the court with a demand to recognize this thing as having entered communal ownership from the moment of the announcement of the refusal.

The literal interpretation of Article 82 of the CC requires that the land plot, which the owner refused, must be registered under Article 242 of the Civil Code. Then the land plot must be registered for a year and then transferred to communal ownership. This literal interpretation distinguishes between land plots and other real estate.

In case of public renunciation of immovable property, the right of communal ownership according to Part 3 of Article 242 of the Civil Code arises from the moment of refusal.

I think it's not entirely logical to transfer land and other real estate to communal ownership in different ways. Therefore, it would be more logical to transfer land plots that the owner (land user) refuses to immediately, without registration, to communal ownership.

Since this is only the author's interpretation, it seems that the Supreme Court should provide clarification in a Regulatory Ruling. So far, the practice on the ground is very different. Some courts apply the norms of art. 242 Part 3 of the Civil Code and land plots immediately, without registration. They are transferred to communal ownership.

Others are registered and, after one year, apply to the court for transfer of ownership. Still others accept and consider such applications if less than one year has passed since the date of registration.

The rule on "public announcement of the abandonment of land plots" is also interpreted in various ways. The law (Civil Code and CC) requires that a public renunciation of real estate be made in the form of a notarized statement.

This requirement is often replaced by a written request to government agencies. Although this does not mean literal compliance with the law, the courts accept such statements.

(Perhaps due to the fact that the generalization is carried out only according to decisions, without studying the case materials, the author of the generalization may be mistaken). But below are examples where the decision does not show how the refusal is issued.

To summarize, the above can be stated in the following form. Special features in relation to ownerless immovable property - a land plot:

1) in case of voluntary renunciation of the right of private ownership of a land plot, the basis for registering a land plot as an ownerless immovable thing is a notarized written statement from the owner of the land plot.

for the duration of being registered as an ownerless immovable, such a land plot may be transferred to temporary land use by another person.,

3) In case of voluntary refusal, a land plot may not be registered as an ownerless immovable thing.

Movable property Provisions of the legislation on the recognition of movable property as ownerless

               Paragraph 2 of Article 243 of the Civil Code defines the rules for acquiring ownership of movable items that the owner has refused: A person who owns, owns or uses a land plot containing an abandoned item, the value of which is clearly lower than the amount corresponding to twenty monthly calculation indices, or abandoned scrap metals, defective products, has the right to reverse these things are taken into their own ownership by starting to use them or by performing other actions that indicate that the thing has become property. Other abandoned items become the property of the person who took possession of them, if, at the request of this person, they are recognized by the court as ownerless.

Thus, the legislator in the code provides for two ways in which ownership of a thing that the owner has renounced can arise, depending on its value. Ownerless movable items are divided into two groups:

priced above 20 MCI and • priced below 20 MCI.

In the first case, the owner just uses this thing. In the second case, a court decision is required to declare the property ownerless.

Similar norms are contained in Articles 23 and 24 of the Law "On State Property". Cases involving items worth more than 20 MCI should be considered in court. If there is no information about its value in the application to the court for the recognition of a thing as ownerless, then the court should find out the value of the thing at the stage of preparing the case for consideration.

The legislator separately regulates the emergence of ownership rights to neglected animals in art. 246 of the Civil Code. Neglected cattle may be purchased by a person who has kept such cattle for 2 or six months. Only if the person who detained such cattle refuses it, it becomes communal property.

"In accordance with paragraph 6 of Article 98 of the Criminal Code, money, securities and other valuables found on convicts, as well as on the territory of the institution, whose ownership cannot be established, are seized by the administration in accordance with the internal regulations of the institutions and, by court order, are subject to state revenue.

Items, documents, things, products, substances, food, including those found on the territory of the institution and in the territories adjacent to it, where regime requirements are established that are not provided for by the internal regulations of the institutions, are transferred to relatives or for storage by a commission decision of the administration of the institution, or destroyed by order of the head of the institution, which is drawn up the act."

Thus, it follows from this rule that only money, securities and other valuables are subject to conversion to state revenue, the ownership of which cannot be established and in respect of them the court issues a resolution on conversion to state revenue, and in respect of all other objects, things and others, the issue of destruction, storage, etc. is resolved. by the administration of the institution itself.

Civil legislation does not provide for the destruction of an ownerless item.

The Regulatory Resolution addresses the issue of the fate of items that are material evidence in criminal cases.

As you know, the fate of physical evidence must be resolved within the framework of a criminal case. However, sometimes a criminal case lasts for years, and the storage of physical evidence requires expenses.

The generalization showed that the courts in civil proceedings apply art. 18, part 3, paragraph 4 of the CPC not only in the presence of a dispute, but also at the request of the prosecutor.

The Semey transport prosecutor appealed to the court with a statement declaring the unreliably declared goods ownerless and turning them into state revenue, pointing out that on 26.06.2014, Shayakymet Nurtai, a representative by proxy of Kara-Kerey LLP, without concluding any relevant agreements from the territory of the former Irtysh copper plant located in the village of Glubokoe East Kazakhstan region, purchased from unidentified persons in During the pre-trial investigation of persons named "Kuat" and "Fazyl", the copper concentrate ore was found in the amount of 184.7 tons in the amount of 77,238,624 tenge and tried to export them outside the Republic. On 05.06.2014, the senior investigator for the Department of Internal Affairs and the Department of Internal Affairs of East Kazakhstan Region, as part of the pre-trial investigation, decided to terminate the criminal case due to the active repentance of Shayakymet N.

By the decision of the investigator of the DBEKP in East Kazakhstan region, the unreliably declared goods were recognized as material evidence.

By the decision of the investigating judge of the Semey Court No. 2 dated 06/03/2015, the above contraband items were seized, the seized goods are stored in the temporary storage warehouse of Customs Asian Terminal JSC. The court, satisfying the application, applied the norm of art. 254 of the Civil Code in cases provided for by legislative acts of the Republic of Kazakhstan, property may be seized from the owner free of charge in court in the form of a sanction for committing an administrative or criminal offense (confiscation).

The court further stated that "in accordance with paragraph 4 of Part 3 of Article 118 of the CPC, when making a decision to terminate the criminal case, the issue of physical evidence must be resolved.

At the same time, contraband items are "subject to conversion to state revenue" by court decision. The court's application of substantive and procedural law raises questions. Article 254 of the Civil Code regulates the grounds for termination of ownership rights, but does not specify the procedure. A court in a civil proceeding does not have the right to apply the rules on confiscation, unless it is a question of the consequences of invalidating a transaction and applying art. 157, part 4,5 of the Civil Code.

The court also correctly pointed out that the fate of physical evidence is decided according to the norms of the criminal process.

However, when issuing procedural documents on the criminal process, the criminal prosecution authority had to decide the fate of the physical evidence.

(Article 118, paragraph 3, paragraph 4 of the CPC states the following: When making a decision to terminate a criminal case or sentence, the issue of physical evidence must be resolved). There is no reference in the decision that the criminal prosecution authority has transferred consideration of the fate of the item to the civil process.

The Court applied the norms of paragraph 20 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 2 "On certain issues of qualification of crimes in the sphere of economic activity", in accordance with paragraph 4, Part 3, Article 118 of the CPC, property, items directly used to extract income from illegal business activities, recognized as material evidence, are subject to an appeal to the revenue of the state.

In the materials of the criminal case, there is a statement by Shayakymet N. that he agrees to transfer contraband items to the state revenue. Apparently, the court proceeded from the following wording of the State of emergency.4, Part 3, Article 118 of the CPC "money and other valuables acquired by criminal means, as well as items of illegal business and contraband, are subject to state revenue by court decision."

The words "by court decision", when interpreted literally, suggest that the decision is being made in a civil proceeding.

However, the provision that the criminal prosecution body must decide the fate of the thing also gives reason to assume that in the absence of a dispute, this body should turn the material evidence into state revenue.

The fate of material evidence in a criminal case must be resolved within the framework of a criminal case.

The Court applied the norms of paragraph 20 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 2 "On certain issues of the qualification of crimes in the sphere of economic activity", in accordance with paragraph 4, Part 3, Article 118 of the CPC, property, items directly used to extract income from illegal business activities, recognized as material evidence, are subject to an appeal to the revenue of the state.

In the materials of the criminal case, there is a statement by Shayakymet N. that he agrees to transfer contraband items to the state revenue. Apparently, the court proceeded from the following wording of the State of emergency.4, Part 3, Article 118 of the CPC "money and other valuables acquired by criminal means, as well as items of illegal business and contraband, are subject to state revenue by court decision."

The words "by court decision", when interpreted literally, suggest that the decision is being made in a civil proceeding.

However, the provision that the criminal prosecution body must decide the fate of the thing also gives reason to assume that in the absence of a dispute, this body should turn the material evidence into state revenue.

The fate of material evidence in a criminal case must be resolved within the framework of a criminal case.

The Kordai District Court of the Zhambyl region, having considered the application of the prosecutor of the Kordai district, Elamanov Zh.B., for recognition of property as ownerless, by ruling in case No. 2-1-715/15 dated June 23, 2015, the court refused to accept the application in accordance with subparagraph 1) part 1 of Article 153 of the CPC.

The circumstances of the case. On December 22, 2014, the investigator of military unit 2038 established the fact of the movement of contraband cargo by Mammadov R.Ya. and Shakhverdiev A.E. in the area of border sign No. 88.

The criminal prosecution authorities have not made a decision on this fact and the issue of physical evidence has not been resolved.

In accordance with parts 2 and 3 of Article 118 of the CPC, material evidence is attached to the case by a decision of the body conducting the criminal proceedings and is with it until the verdict or decision to terminate the case comes into force.

When making a decision to terminate a criminal case or sentence, the issue of physical evidence must be resolved.

Extortionate property If there are heirs, the property cannot be recognized as extortionate.

               Court No. 2 of Petropavlovsk considered case No. 2-2542/15 on the claim of the State Institution "Petropavlovsk Finance Department" against Bayguzhina Aliya Sapargalievna, State Institution "Department of Internal Affairs of the North Kazakhstan region" on termination of ownership of a vehicle of the brand "AUDI 80, 1991, Mr. T 269 KZM, recognition of the said vehicles as scrap metal, recognition of scrap metal as extortionate and transfer of scrap metal to communal ownership.

The car of the AUDI 80 brand, built in 1991, Mr. T 269 KZM, according to the information of the UDP of the Ministry of Internal Affairs of the Republic of Kazakhstan, is registered with Bolat Tasbayevich Bayguzhin. Baiguzhin B.T. died on 07/03/2011, an inheritance case was opened, in which there is no information about the car. On July 03, 2011, the car was placed in a special parking area.

By the court's ruling, the claim regarding the recognition of the AUDI 80 brand vehicle, 1991, Mr. T 269 KZM as scrap metal, the recognition of scrap metal as extortionate and the transfer of scrap metal to communal ownership was terminated.

The decision does not specify the grounds for termination. By a decision dated 04/21/2015, the court dismissed the claim for termination of ownership rights. The court reasoned its decision as follows.

"According to paragraph 1 of Article 249 of the Civil Code of the Republic of Kazakhstan, the right of ownership ceases when the owner alienates his property to other persons, the owner renounces the right of ownership, the death or destruction of property and the loss of ownership of property in other cases provided for by legislative acts.

In this case, the plaintiff's rights have not been violated by storing an AUDI 80 car, made in 1991, Mr. T 269 KZM in the territories of a special parking lot, therefore, the claim in this part is not subject to satisfaction.

The court concludes that the State Institution "Petropavlovsk Finance Department" has no right to file a claim for termination of ownership of the vehicle for Baiguzhin T.B. since this vehicle is not communal property.

In addition, the plaintiff, having filed a claim, asks to terminate the ownership of Baiguzhin B.T. for an AUDI 80, 1991 model year vehicle, Mr. T 269 KZM, whereas there is no information in the case file that the specified vehicle is registered with Baiguzhin T.B.

               In this case, it is of interest to consider in one lawsuit the claims that relate to both the claim (termination of ownership) and the special one – recognition as extortionate and transfer to communal ownership.

The property is recognized as extortionate and ownerless at the same time.

Civil case No.2-3214/15 of the Aktobe City Court on the application of the Aktobe City Prosecutor's Office to interested parties of the Russian State Institution "Department of Justice of the Aktobe region", JSC "ForteBank", Ayatollina Aktota Kuanyshevna on the recognition of movable property as ownerless and extortionate with its conversion to state revenue.

The court granted the application and ruled: "To recognize a movable thing – a half share of a Lada 21150 car, state registration number D 833 OSM, 2006, engine No. 4479245, body No. 4290543, metallic silver color Ayatolina Aktota Kuanyshevna, stored in a special parking lot of IP Garaev as ownerless and turn it into state revenue.

To recognize a movable thing – a half share of a Lada 21150 car, state registration number D 833 OSM, 2006, engine No. 4479245, body No. 4290543, metallic silver color by Ayatollah Galymzhan Akhotuly, who died on March 3, 2010, stored in a special parking lot of IP Garayev as extortionate and convert it into income States"

Article 118, part 3, paragraph 4 of the CPC states:

When making a decision to terminate a criminal case or sentence, the issue of physical evidence must be resolved. At the same time:

4) money and other valuables acquired by criminal means, as well as items of illegal business and contraband, are subject to a court decision to be converted into state income; the remaining items are given to the rightful owners, and if the latter are not identified, they become state property. In the event of a dispute over the ownership of these items, the dispute is subject to resolution through civil proceedings.;

The words "by court decision", when interpreted literally, suggest that the decision is being made in a civil proceeding. However, the provision that the criminal prosecution body must decide the fate of the thing also gives reason to assume that in the absence of a dispute, this body should turn the material evidence into state revenue.

The courts apply the provisions of Chapter 36 of the CPC, giving an extended interpretation to its norms.

So, if, according to the requirements of this chapter, movable things must be transferred to the ownership of the owning person, then the courts, recognizing the things as ownerless, transfer it to the income of the state. Moreover, there are owners of things recognized as material evidence, so the courts refuse to recognize them as ownerless, which also does not resolve the issue on its merits.

118, part 3, paragraph 4 of the CPC is given in the book by A. T. Zhukenov "Issues of the application of the new Criminal and Penal Enforcement Codes of the Republic of Kazakhstan and judicial practice": "in the case of a dispute over the ownership of things, the dispute is subject to resolution in civil proceedings and applies only to those things whose criminality has not been proven.

Important in the criminal process is the fact that the confiscation of the instrument of a criminal offense, the conversion of illegal business and contraband items, as well as money and other criminally acquired valuables, in accordance with the requirements of art. 118 of the CPC, is carried out only by a court decision, including when the criminal case is terminated at the pre-trial stage. stages by the criminal prosecution authorities.

The new CPC, having provided for the provision that the fate of material evidence in cases where proceedings have been terminated by the criminal prosecution authorities is resolved only by the court, at the same time did not establish a specific mechanism for such legal proceedings.3" Further, the author suggests a mechanism for its consideration by an investigating judge, but not in a civil trial.

If in the above-mentioned legal norm, the courts interpret the literal interpretation of the words "by court decision" as a civil procedure, then in Article 98, Part 6 of the Criminal Code, the legislator used the words "by court order": Money, securities and other valuables found in convicts, as well as on the territory of the institution, whose ownership cannot be established, are seized. the administration, in accordance with the internal regulations of the institutions and by court order, is subject to appeal to the State revenue.

Article 98, Part 6 of the Criminal Code does not specify in which court proceedings the case on the transfer of items found in places of deprivation of liberty to the State's income should be considered.

The law uses the phrase "by court order." By analogy with Article 77, Part 9 of the previously existing Criminal Code, courts continue to consider cases in civil proceedings. Meanwhile, the civil process does not end with a ruling.

Decisions and definitions are made in civil proceedings. In addition, cases in this category are related to the execution of criminal penalties.

Issues of execution of criminal punishment are resolved by courts or judges who consider criminal cases and consider issues related to serving a sentence. These courts may issue rulings.

Therefore, it seems that these issues should not be considered in a civil procedure. Probably, they should be interpreted in the same way as the interpretation of Article 118, Part 3 of the Criminal Procedure Code by A. Zhukenov.

Important in the criminal process is the fact that the confiscation of the instrument of a criminal offense, the conversion of illegal business and contraband items, as well as money and other criminally acquired valuables, in accordance with the requirements of art. 118 of the CPC, is carried out only by a court decision, including when the criminal case is terminated at the pre-trial stage. stages by the criminal prosecution authorities.

The new CPC, having provided for the provision that the fate of material evidence in cases where proceedings have been terminated by the criminal prosecution authorities is resolved only by the court, at the same time did not establish a specific mechanism for such legal proceedings.3" Further, the author suggests a mechanism for its consideration by an investigating judge, but not in a civil trial.

If in the above-mentioned legal norm, the courts interpret the literal interpretation of the words "by court decision" as a civil procedure, then in Article 98, Part 6 of the Criminal Code, the legislator used the words "by court order": Money, securities and other valuables found in convicts, as well as on the territory of the institution, whose ownership cannot be established, are seized. the administration, in accordance with the internal regulations of the institutions and by court order, is subject to appeal to the State revenue.

Article 98, Part 6 of the Criminal Code does not specify in which court proceedings the case on the transfer of items found in places of deprivation of liberty to the State's income should be considered.

The law uses the phrase "by court order." By analogy with Article 77, Part 9 of the previously existing Criminal Code, courts continue to consider cases in civil proceedings. Meanwhile, the civil process does not end with a ruling.

Decisions and definitions are made in civil proceedings. In addition, cases in this category are related to the execution of criminal penalties.

Issues of execution of criminal punishment are resolved by courts or judges who consider criminal cases and consider issues related to serving a sentence. These courts may issue rulings.

Therefore, it seems that these issues should not be considered in a civil procedure. Probably, they should be interpreted in the same way as the interpretation of Article 118, Part 3 of the Criminal Procedure Code by A. Zhukenov.

The main regulatory legal acts regulating the grounds and procedure for recognizing property as ownerless, recognition of communal property are:

               The Civil Code of the Republic of Kazakhstan, Articles 242, 243, 246, 250 of the Civil Code. 82 of the Law of the Republic of Kazakhstan "On State Property", Chapter 36 of the Civil Procedure Code of the Republic of Kazakhstan Recognition of movable property as ownerless and recognition of the right of communal ownership of immovable property.

Regulatory Resolution of the Government of the Republic of Kazakhstan dated July 28, 2002 No. 833 "Some issues of accounting, storage, valuation and further use of property that has been converted (to be converted) into State ownership on certain grounds."

The normative resolution of the Supreme Court of the Republic of Kazakhstan "On the practice of judicial review of disputes on the right to housing abandoned by the owner". In addition, local regulations must be applied.

For example, Articles 118/1 – 118-17 of the Decision of the Maslikhat of Astana dated March 30, 2004 No. 28/6-III "On the rules of landscaping, sanitary maintenance, organization of cleaning and cleanliness in the territory of Astana" as amended on June 29, 2011 No. 463/65-IV.

These changes regulate the identification, registration, sale or disposal of ownerless vehicles in the city.

 

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