Refused to recover the amount of tuition fees | Legal defense in court proceedings

On August 12, 2021, the Zhitikarinsky District Court of the Kostanay region, consisting of: the presiding judge Akhmedova A.K., with the secretary of the court session Murzagulova M.Zh., considered in open court a civil case against the claim of: Municipal state institution "Employment Center" of the state institution "Department of Employment and Social Programs of the Akimat of the Zhitikarinsky district" B.A.M., to the Partnership limited liability company "Profi Training Center" on the recovery of the amount of training costs Prosecutor Kuzvesova A.V. Representative of the plaintiff Z.A.M. Defendant B.A.M. Representatives of the defendant B.A.I., A.O.A. Since January 13, 2020, B.A.M. has been registered as unemployed. On August 12, 2020, B.A.M. submitted an application for inclusion in the Program of the first direction of the State Program for the Development of Productive Employment and Mass Entrepreneurship for 2017-2021 "Enbek" (hereinafter referred to as the program) - technical and vocational education. Based on the minutes of the commission meeting No. 9 dated August 17, 2020, B.A.M. was included in the list of potential participants in the program. Based on Order No. 272 dated August 18, 2020, B.A.M. enrolled in the specialty "electric and gas welder". On August 18, 2020, a social contract was signed on the provision of state support for vocational training between the Municipal State Institution "Employment Center" of the state institution "Department of Employment and Social Programs of the Akimat of the Zhitikarinsky district" (Employment Center), B.A.M. and the Limited Liability Partnership "Profi Training Center" (Profi LLP). For the period from September 14 to November 24, 2020, to the current account of B.A.M. The Employment Center has transferred a scholarship, funds for a medical examination, tuition fees, a total of 218,106 tenge. On November 18, 2020, following the results of B.A.M.'s training, a certificate of professional training in the profession of an electric and gas welder was issued. The plaintiff appealed to the defendants to recover from Profi LLP the amount of 147189 tenge for tuition, from B.A.M. the amount of the scholarship and the amount for medical examination in the amount of 70917 tenge, arguing that B.A.M. violated the clause of the social contract, expressed in not notifying about employment in Zhek Batyr LLP.

 

The respondents provided feedback, the arguments of the review are identical to the explanations given. At the hearing, the plaintiff's representative, Z.A.M., supported the claims with a request to recover funds, and explained to the court that B.A.M., in violation of subparagraph 4) of paragraph 2 of Article 15 of the Law of the Republic of Kazakhstan "On Employment", had found a job during his studies and concealed this fact from the employment authority. Due to the fact that the social contract was violated, the funds are subject to refund. At the hearing, representatives of the defendant, Profi LLP, B.A.I. and A.O.A., did not recognize the claims, and explained to the court that B.A.M. He was enrolled in training, as a result, he passed an exam, after which a certificate was issued. Since the terms of the contract have not been violated, they ask to dismiss the claim. At the hearing, the defendant B.A.M. did not recognize the claims, explained to the court that he had completed training at Profi LLP, had made the payment on time, and had been issued a certificate upon graduation. I didn't know that I couldn't work during my studies. I informed the employment center about the employment by e-mail. He got a job at Zheke Batyr LLP, the workplace was located 20 km from the city of Zhitikary, he worked there in October and November in night shifts as a watchman, and therefore employment did not interfere with training. Since he has 3 dependent minor children, he had to look for a job on his own. As a result of the accident, he received a group 2 disability, and therefore does not work as an electric and gas welder, but in the future, if disability is not confirmed and he plans to work in his specialty. Prosecutor Kuzvesova A.V. She gave an opinion, according to which she considered the claims to be fully satisfied. The plaintiff appealed to the defendants on the grounds of Articles 271-272 of the Civil Code of the Republic of Kazakhstan (CC RK) as an unfulfilled obligation, indicating that the defendants violated the clauses of the social contract and the requirements of Article 15 of the Law of the Republic of Kazakhstan "On Employment" (hereinafter – the Law). According to paragraph 4.2.1 of the State Program approved by the Decree of the Government of the Republic of Kazakhstan dated November 13, 2018 No. 746, one of the tasks is to provide participants of the Enbek program with technical and vocational education and short-term vocational training. Based on the provisions of the State Program, unemployed persons are participants in this program, regardless of registration in employment centers, which means that the state guarantees such persons financial support in case of training without any conditions. At the hearing, it was established that B.A.M., upon graduation from Profi Training Center LLP, received a certificate of professional training in 2020 in the profession of electric and gas welder. Under the terms of the social contract, the employment center directs B.A.M., and B.A.M. undertakes to undergo training in accordance with the procedure and conditions defined by the Legislation of the Republic of Kazakhstan on employment, the contract, the training agreement and the internal order of the educational organization, with the provision of state support measures in the form of a scholarship of 21787 tenge and 2 MCI for medical examination. The defendants fulfilled the conditions of the State Program: B.A.M. completed training, as a result of which he was certified and received a certificate of professional training, and the sums of money were provided as financial assistance and payment for his training, and therefore there is no dishonesty in the actions of the defendants. The plaintiff's party did not provide evidence that the defendant B.A.M. was familiar with the legal consequences of non-fulfillment of obligations under the contract or under another agreement. The plaintiff did not provide the court with any supporting documents on the defendant's notification of his rights and obligations as an unemployed person. Article 378 of the Civil Code of the Republic of Kazakhstan, which regulates the agreement of two or more persons on the establishment, modification or termination of civil rights and obligations, however, the plaintiff did not provide evidence of an agreement and the establishment of obligations of the defendants to refund tuition and scholarship funds. From the literal interpretation of the terms of the contract, it is necessary to take into account the literal meaning of the words and expressions contained therein and, in case of ambiguity, is determined by comparing with other terms and the meaning of the contract as a whole. If the rules do not allow determining the content of the contract, the actual common will of the parties must be clarified, taking into account the purpose of the contract. In this case, all relevant circumstances are taken into account, including negotiations and correspondence prior to the contract, the practice established in the mutual relations of the parties, business practices, and subsequent behavior of the parties (Article 392 of the Civil Code of the Republic of Kazakhstan). The plaintiff did not provide evidence that there was a common will of the parties that, in case of employment, B.A.M. and Profi Training Center LLP undertake to refund the amount for tuition and scholarships. Obligations to repay tuition and scholarship fees must be formalized properly, since by virtue of Article 393 of the Civil Code of the Republic of Kazakhstan, a contract is considered concluded when an agreement has been reached between the parties on all essential terms and conditions in the required form. In order to return the payment as illegally received as a result of the actions of the person who received it, it is necessary to establish the general grounds for civil liability, one of which is to establish the defendant's guilt. In this case, there are no clauses in the social contract that specify the obligation to refund the amounts received for training and financial assistance in the form of scholarships, due to violations of the clauses of the employment contract for B.A.M. There is also no evidence that failure by the defendant to notify B.A.M. about employment affected the fulfillment of obligations for his education, because the main purpose of the contract was to train him. At the same time, the contract does not reflect the points where 5 training is terminated, and all tuition fees are subject to refund, in view of the removal of the recipient from the register as unemployed by the authorized employment agency. The court considers it inconsistent and unfounded to proceed from the mere fact of not reporting employment with a statement of dishonesty of the defendants' actions. The Employment Law also does not provide for financial liability for violations of paragraph 15 of the Law. Thus, it is impossible to determine the obligation that, in the plaintiff's opinion, was violated by the defendants, for non-fulfillment of which financial liability arises. Paragraph No. 11 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 5 dated July 11, 2003 "On the judicial decision" states that the decision cannot be based on assumptions about the circumstances of the case. The court has no right to refer in its decision to evidence that has not been examined at the court session. A cumulative analysis of the available factual data on the case allows us to conclude that there are no signs of dishonesty in the actions of the defendants, which excludes the repayment of the amounts received for training and financial support.

 

In this regard, the plaintiff's claims must be dismissed, as they have not been confirmed on the grounds of Articles 271-272 of the Civil Code of the Republic of Kazakhstan as an unfulfilled obligation. Nor has it been confirmed on the grounds of unjustified enrichment. In accordance with part 1 of Article 117, the state fee from which the plaintiff was exempted, as well as the costs associated with the proceedings, 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. According to part 1 of Article 113 of the CPC RK, at the request of the party in whose favor the decision was made, the court awards, on the other hand, the costs incurred by her to pay for the assistance of a representative who participated in the process and is not in an employment relationship with this party, in the amount of the actual costs incurred by the party. According to non-property requirements, the amount of expenses is collected within reasonable limits, but should not exceed three hundred monthly calculation indices. The defendant's party, Profi LLP, presented a contract for the provision of legal assistance and a receipt for the amount of 50,000 tenge. The court, taking into account the provisions of Article 113 of the Civil Procedure Code of the Republic of Kazakhstan, satisfies the request for recovery of expenses for the representative's assistance. Based on the criteria of reasonableness, he considers it necessary to recover 25,000 tenge in favor of the defendant, recognizing it as sufficient, taking into account the participation of the representative in the preparation and trials. Guided by Articles 223-226 of the CPC, the court DECIDED: To refuse to satisfy the claim of the municipal state institution "Employment Center" of the state institution "Department of Employment and Social Programs of the Akimat of the Zhitikarinsky district to B.A.M., the Limited Liability Partnership "Profi Training Center" to recover the amount of tuition costs. To collect from the municipal state institution "Employment Center" of the state institution "Department of Employment and Social Programs of the Akimat of the Zhitikarinsky district" in favor of the Limited Liability Partnership "Profi Training Center" expenses for a representative in the amount of 25,000 (twenty-five thousand) tenge.  Refused to recover the amount of tuition fees and legal protection in court proceedings

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