State duty
The state duty in accordance with Article 607 of the Code of the Republic of Kazakhstan "On Taxes and Other mandatory Payments to the Budget" (Tax Code) is a mandatory payment levied for the commission of legally significant actions and (or) the issuance of documents by authorized state bodies or officials. According to Article 149 of the CPC, a document confirming payment of the state fee is attached to the statement of claim. In accordance with subparagraph 11) of Part 1 of Article 104 of the CPC, in claims for ownership of immovable property, the price of the claim is determined by the market value of such objects at their locations on the day the claim is filed. Thus, civil law disputes over the ownership of unauthorized buildings relate to property-related claims that must be assessed. The disputed object is tangible and has a monetary value, so its price is determined by market value. In accordance with subparagraph 1) paragraph 1 of Article 610 of the Tax Code, unless otherwise established by this paragraph, a state fee is charged on property claims: 1 percent from individuals and 3 percent from legal entities of the amount of the claim. When filing a claim for recognition of ownership of an unauthorized building, the plaintiffs pay a state fee based on the value of the property, with documents on its market value attached to the application (a real estate valuation report, information certificates on the average market value of disputed objects). The generalization showed that the courts of the Kyzylorda region accept claims for recognition of ownership of an unauthorized building without a document confirming the market value of the erected object. O. appealed to the court with a claim for recognition of ownership of an unauthorized building, paid a state fee of 10,000 tenge, however, an assessment report or a certificate of the market value of the object the case file is not available. At the same time, it is impossible to determine from which market value the plaintiff proceeded when paying the state fee (Kyzylorda City Court). The same can be seen in the claims of E. (Kazalinsky District Court), A. (Syrdarya District Court).
The judicial practice of considering civil cases on the recognition of ownership of an unauthorized building shows that such applications are accepted by the courts after payment of a state fee in the amount of 1% (3%) of the market value of the property on the day of the claim. Paragraph 11 of the Requirements for the form and Content of the assessment report, approved by the Order of the Minister of Finance of the Republic of Kazakhstan dated May 3, 2018 No. 501 (a similar provision was contained in the expired rules dated February 25, 2015), stipulates that the value of the valuation object indicated in the assessment report is valid for six months from the dates of its compilation. Therefore, the submitted documents on the market value of the object must meet the specified requirements. There are facts of determining the price of a claim based on valuation certificates drawn up more than 6 months before the date of the claim. On November 13, 2018, S., applying to the court for recognition of ownership of an unauthorized building, paid a state fee in the amount of 1% of the market value of the property indicated in the assessment report, which was compiled on February 16, 2016 (court No. 2 of Petropavlovsk, North Kazakhstan region). On November 21, 2016, K. He applied to the court for recognition of ownership of an unauthorized building, paid a state fee of 1% of the market value of the property, and attached to the application a certificate of value issued on October 20, 2015 (Ekibastuz City Court of Pavlodar region). Similarly, according to B.'s claim to the mayor of Kostanay for recognition of ownership of an unauthorized building.
The lawsuit was filed on October 19, 2017 with payment of the state fee, based on the market value indicated in the assessment report dated April 4, 2016 (Kostanay City Court). It should be noted that the rules of part 1 of Article 109 of the CPC, prescribing the mandatory distribution of court costs to the party in whose favor the decision was made, do not apply to a claim filed against a local executive body for recognition of ownership of an unauthorized building, therefore the courts reasonably do not recover from such defendants in favor of the plaintiffs the costs of paying the state fee. This is due to the fact that the defendant in such cases does not violate the plaintiff's material rights and, therefore, there is no fault in the fact that the plaintiff uses a judicial form of protection. The Supreme Court had previously conducted a generalization on this issue. The relevant clarifications are available in the regulatory decree "On the application by the courts of the Republic of Kazakhstan of legislation on court costs in civil cases." At the same time, there are cases when the court, in accordance with Article 109 of the CPC, collected a state fee from a local executive body in this category of cases. By the decision of the Burlinsky District Court of the West Kazakhstan region dated June 23, 2017, S.'s claim to the akim of Aksai city for recognition of ownership of an unauthorized building - an apartment building was satisfied. The issue of court costs has been resolved. From akim of Aksai city in favor of S. The state fee paid by the plaintiff in the amount of 36,886 tenge has been recovered. Similarly, in the claims of M. and B. to the akim of Aksai city for recognition of ownership of an unauthorized building (Burlinsky District Court). By the decision of the Zh district court. On August 2, 2018, the claim of B. to the akimat of Zh district was satisfied in the North Kazakhstan region. on the recognition of ownership of unauthorized buildings. In the reasoning part of the decision, the court indicated that, on the basis of Article 109 of the CPC, the akimat is subject to collection of state duty in favor of the plaintiff. However, the operative part of the decision reflects the collection of a state fee in the amount of 6,000 tenge from the akimat to the state revenue.
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