Review of the statement of claim for the protection of honor, dignity and compensation for moral damage

 

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Auezovsky District Court No. 2, Almaty

To Judge T.K. Dalabayeva.

Republic of Kazakhstan, Almaty, 050043,

44 A. Kuanyshbayeva St.

 

from the defendant: M.Z.B.

IIN ……………

Almaty Auezovsky district,

mkr. Mamyr, 2 Aftsinao St., sq. 2.

Representative by proxy:

Law and Law Law Firm

BIN 201240021767

79 Abylai Khan Ave., office 304, Almaty.

info@zakonpravo.kz / www.zakonpravo.kz

+ 7 708 980 5251 ; +7 708 971 78 58.

 

 

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for a statement of claim for the protection of honor, dignity and compensation for moral damage

 

     You are currently investigating civil case No. 7540-23-00-2/863 on the claim of A.A.A. (hereinafter referred to as the Plaintiff) against M.Z.B. (hereinafter referred to as the Defendant) for the protection of honor, dignity and business reputation.

We do not agree with A.A.A.'s claim, we consider them unfounded and illegal on the following grounds.

          The plaintiff worked at the dental clinic of Best Stom LLP from June 01, 2021 to September 01, 2022 (based on employment contract No. 1 dated June 01, 2021), as a practicing dentist therapist during the period of her employment, there were violations of labor laws and other regulatory legal acts, orders and requirements, regulating the activities of private dental clinics (lateness , not going to the workplace (absenteeism for no good reason , etc. )).

        The plaintiff got a job on the basis of Order No. 6 dated 06/01/2021 for the vacant position of a general practitioner. Subsequently, the plaintiff wanted to work as an orthodontist dentist, which she learned from the chief physician M.Z.B.

         On 07/26/2022, the plaintiff submitted a letter of resignation at her own request, the director signed: "from August 09, 2022, she will be considered unemployed." At the plaintiff's oral request "to cancel the signed inscription from August 09 to consider it inactive," the correspondence continued to work, as evidenced by the vacap.

         On September 01, 2022, the plaintiff under the vacap system confronted the fact that she would not go to work.

      Subsequently, the plaintiff, violating the norms of labor legislation, who found employment in another dental clinic, began to lure patients to another dental clinic, as evidenced by the vacap correspondence between the plaintiff and patients of Best Stom LLP, patient K.G.A., T.A.T. Also, at the same time, the plaintiff, feeling her inefficiency, arbitrarily entered the storage warehouse of tangible assets, stole the "braces" of customers, thereby causing material damage to Best Stom LLP, as evidenced by the acts of shortage of tangible assets presented by the current employees of Best Stom LLP, as well as the video recording.

        In addition, the defendant repeatedly tried to reach the plaintiff, who did not pick up the phone and then blocked it altogether, after September 05, 2022, the defendant sent a notice of violation of the employment contract to the plaintiff. However, having not received a response back from the plaintiff, the defendant published violations of labor legislation on the merits.

       

The plaintiff in his statement indicates that the defendant systematically violates her rights and publicly spreads false information about her on social networks.  In this case, former colleagues called and wrote to A. that M. had openly threatened and insulted her, posted Instagram posts about A., speaking unfavorably about her, hurting her professional and personal qualities. A. saw this for herself when she went to the social network, where she also saw the reviews of some alleged patients whom she did not treat.

A. would not have reported the violations mentioned above later if M. had not behaved inappropriately. However, M., abusing her position as director and chief physician of the clinic, decided to take revenge on A. for the disrespect shown to her. To this end, M.Z. began calling AA and sending messages with threats and insults, accusing her of theft, and that she would write a statement against her.

In this case, the defendant did not violate the plaintiff's rights and did not spread any false information, especially did not insult or threaten the plaintiff, only expressed her opinion on the fact of violation of labor discipline (lateness, missing for no good reason (absenteeism), etc.), as evidenced by an employee of Best Stom LLP in the position of the administrator is M.M.M., the defendant has no relation to patient reviews on social networks.

The defendant did not abuse her official position as director and chief physician, nor could she insult or threaten, much less take revenge. Upon the theft of material assets, after the plaintiff's departure, a shortage of material assets (braces) was discovered, and a corresponding act on the shortage of material assets was drawn up on 09/03/2022 by the doctors of the Best Stom LLP clinic, orthodontist K.A.D. dentist, as well as Zh.B. doctor..

Due to the shortage of material assets, the defendant did not contact law enforcement agencies about this incident, as they say.: "I didn't take out the garbage from the hut," she just called and said: "return the illegally taken material valuables, otherwise I will have to contact the police."

Also, when A.A.A. left incorrectly, the employment contract No. 1 dated June 01, 2021, concluded between the employer represented by director M.Z.B. and employee A.A.A., was violated, where an agreement on non-disclosure of confidential information of the Employment Contract was signed. In addition, the plaintiff grossly violated clauses 7, 3.1. of the contract, where she took the patients of the clinic with her, which caused material damage.

 

The plaintiff in the lawsuit claims, "moreover, without stopping there, M.Z. began calling patients and her friends, asking them to send their unfavorable reviews and comments to A., on the Instagram network, calling her a traitor, etc."

The defendant has never called anyone with an incorrect request for unfavorable reviews and comments addressed to the plaintiff.

In the dialogue, the defendant and her opponents used words that refer to interjections in Russian in the spelling section.

In oral speech, we can express emotions with facial expressions, intonation, and gestures, while written speech would be completely boring and dry if it weren't for interjections. They help to talk about feelings, identify certain sounds and make the text truly alive.

Source Online School ......................................

 

  Extract from the lawsuit: "On September 19, 2022, on the social network Instagram, on the page ........ belonging to M.Z.B., with 1,400 (thousand four hundred) subscribers, a post was published where she also posted a photo of A.A. without her consent, as well as their personal photos It contains correspondence concerning the treatment plan for patients at the Best Stom clinic. At the same time, comments were attached to the post, where patients who were not served by AA, but spoke about her as a doctor, unfavorably, insulting her as a specialist and a person. At the same time, the chapter itself.The doctor also wrote in the chat rooms that A.  "rotten man, onbagan."

Thus, it follows that the director of the clinic, exceeding her authority, violating all norms of ethics and morality, violating the legitimate rights and interests of AA, invaded her privacy, humiliated and insulted her, hurting her honor and dignity, as well as her business reputation."

The accusation has not been substantiated on this fact, there is no fundamental basis for bringing any charges. The defendant in this case states only the facts and it is not an invasion of privacy, an insult.

According to Article 72 of the Civil Procedure Code of the Republic of Kazakhstan, "Each party must prove the circumstances to which it refers as the grounds for its claims and objections." Thus, it follows from this rule that the duty of proof is assigned to the parties and each of the parties is obliged to prove the facts that it has cited in order to substantiate its claims or objections. When filing a claim, the plaintiff does not indicate or present the facts substantiating his claims.

The plaintiff in the statement of claim highlights the event on October 15, 2022, a seminar on dentistry was held in Almaty, with the participation of an international specialist from the Russian Federation and dentists from the Republic of Kazakhstan. During the seminar, the director of M.Z.B., having seen a long-time colleague of A.A., S.L., in the presence of other dental specialists, began to spread slanderous information about her, saying that she was incompetent, had stolen braces, a traitor, whom she allegedly taught everything, insulting her, using non-normative vocabulary.

According to this circumstance of the case, the defendant participated in this seminar, however, the Plaintiff exaggerates the October 15 event about the dissemination of defamatory information about her, since in this conversation the defendant discussed this incident among doctors in the presence of a participant in the seminar from the Turkestan region, dentist S.Y., who can confirm that the defendant did not offend with non-normative vocabulary and did not defamatory information.    

According to paragraph 4 of Article 8 of the Civil Code of the Republic of Kazakhstan, citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation and the moral principles of society. This obligation cannot be excluded or limited by the contract. Good faith, reasonableness and fairness of the actions of participants in civil law relations are assumed.

From the text of the statement of claim: " After that, A. complained about M.Z.'s actions to the Almaty City Health Department and the Almaty City Labor Inspection Department. After some time, A. was called to the SES of the Auezovsky district to conduct an administrative procedure to clarify the circumstances specified in the complaint. At that time, when the SES was checking A.'s arguments, she became aware that Manasheva had sent an audio message to K.D., where she asked to bring everything into line, because A. had written a complaint to the SES, calling her "an ass, a little fool," and that now the clinic would be checked, (audio recording is available)."

   Yes, based on the plaintiff's complaint, the SES verification commission was established and an appropriate verification report was drawn up, where the plaintiff's arguments were not confirmed. This is evidenced by the conclusion of the SES.  In addition, the plaintiff's arguments regarding the defendant's sending a voice message to an employee of the clinic, K.D., were not sent to the plaintiff's address, since the defendant discussed with K.D. about the visit of the SES and did not violate the confidentiality conditions and did not send it to third parties. Oral speech can be expressed by emotions, facial expressions, intonation, gestures, and written speech would be completely boring and dry if it were not for interjections. In this way, the sentence helps to tell about feelings, identify some sounds and make the text truly alive.

Discrediting the honor and dignity of a citizen is such untrue information that detracts from the honor and dignity of a citizen in public opinion or the opinion of individual citizens in terms of compliance with laws and moral principles of society. At the same time, demands for refutation of information containing relevant criticism of shortcomings in work, in a public place, in a team, or in everyday life cannot be considered justified.

        152 and 279 of the Civil Procedure Code of the Republic of Kazakhstan and Article 402 of the Civil Code of the Republic of Kazakhstan, stipulating that the judge returns the statement of claim and the court leaves the statement of claim without consideration if the plaintiff has not complied with the pre-trial procedure established by law for this category of cases, the mandatory procedure for preliminary pre-trial dispute resolution and the possibility of this procedure has not been lost and preserved. – we believe that in this category of cases, the plaintiff has not regulated the pre-trial procedure for resolving a civil case, which prevents further consideration of the civil case.

       

 

The Plaintiff in his statement of claim draws special attention to the fact that the Plaintiff is forced to go to court in order to protect his rights, which are systematically violated by the Defendant. In relation to her, the Defendant publicly disseminated deliberately false information on social networks that undermined her honor and dignity. She spread slanderous information about her, that she was incompetent, had stolen braces, and was a traitor, whom she allegedly taught everything to,

The plaintiff does not agree with the above arguments, as they are unfounded and not supported by facts, and I would like to clarify the theft of the braces of the clinic's patients. After being dismissed from the clinic, the plaintiff arbitrarily, without warning the management of the partnership, took away the braces of the clinic's patients, with whom written agreements were concluded and on which 043 medical records (Patient history) were opened. In total, the plaintiff, violating the norms of morality and good faith, took 65 patients of the clinic with her without terminating the patient's agreement with the clinic.

Also, regarding the words that the defendant allegedly taught the plaintiff everything in the specialty of orthodontics, this is a true fact, whereas before employment, the plaintiff had no knowledge and experience in the specialty of orthodontics, which the plaintiff fully mastered thanks to the defendant's knowledge and practice, this is evidenced by the plaintiff's grateful appeal to the defendant.

         In the Normative Resolutions of the Supreme Court of the Republic of Kazakhstan dated December 18, 1992 No. 6. "On the application in judicial practice of legislation on the protection of honor, dignity and business reputation of individuals and legal entities" in paragraph 1. It is stipulated that the dissemination of information discrediting the honor and dignity of a citizen or an organization means publishing it in the press, broadcasting it on radio, television, using other mass media, presenting characteristics, public speeches, statements addressed to various organizations, officials, or otherwise, including orally, to several persons or at least one person. The communication of such information to only one person concerned cannot be recognized as its dissemination.

 

According to the vocal accusation, the defendant did not mean to offend anyone when talking to opponents, the words that were said as a bunch of words, namely an interjection.

         In refuting this fact, I would like to remind the Plaintiff of Article 274 of the Criminal Code of the Republic of Kazakhstan, "Dissemination of knowingly false information," where the dissemination of knowingly false information causing significant harm to the rights and legitimate interests of citizens or organizations or the legally protected interests of society or the state is responsible.

Article 68 of the CPC RK. The "Evidence Assessment" section states Each

The evidence is subject to evaluation taking into account its relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve a civil case. In this civil case, we observe groundlessness.

113 of the Civil Procedure Code of the Republic of Kazakhstan, it is stipulated at the request of the party in whose favor the Decision was made, the court awards, on the other hand, the costs incurred to pay for the assistance of a representative (several representatives) who participated in the process and is not in an employment relationship with this party, in the amount of the costs actually incurred by the party (payment order, fiscal receipt). For property claims, the total amount of these expenses should not exceed ten percent of the satisfied portion of the claim. According to non-property requirements, the amount of expenses is collected within reasonable limits, but should not exceed three hundred monthly calculation indices.

By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests.

According to Art. 166 of the CPC RK, the defendant submits to the court a response to the claim with

The attachment of documents that refute the arguments regarding the claim, as well as copies of the review and the documents attached to it.

 

On the basis of the above, and in accordance with Articles 68, 72, 166 of the CPC RK,

 

I ask the court:

 

A.A.A.'s claim to M.Z.B. for the protection of honor, dignity and business reputation should be denied;

To collect from A.A.A. in favor of M.Z.B. the amount of expenses for the representative's assistance in the amount of 500,000 (five hundred thousand) tenge.

 

Representative

by proxy: "____" ___________2023 the year ___________/ Sarzhanov G.T.

 

 

 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

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