The lawyer for the recovery of the amount of damage caused by an employee in the performance of work duties and the costs of paying the state fee by the Court of First instance incorrectly determined the range of circumstances relevant to the case, and made conclusions that do not correspond to the circumstances established in the case.

L. filed a lawsuit against U. to recover the amount of damage caused by the employee in the performance of his work duties in the amount of 716,502 tenge, as well as court costs - 7,165 tenge. By an absentee decision of the Tayynshinsky district Court of the North Kazakhstan region dated October 19, 2012, the claims of IP L. were satisfied. The amount of damage from U. in favor of L. was 716,502 tenge and the cost of paying the state fee was 7,165 tenge. In the petition, the applicant asks to cancel the judicial act as illegal and unfounded, with the referral of the case for a new judicial review, indicating that the court violated the norms of substantive and procedural law. In the response to the petition, the plaintiff's representative S. asks the contested judicial act to remain unchanged and the petition to be dismissed. The supervisory judicial Board overturned the absentee decision of the Tayynshinsky District Court of the North Kazakhstan region, and sent the case for a new hearing to the same court in a different composition, stating the following. As can be seen from the case file, U. (maiden name P.) L. according to the individual employment contract dated June 11, 2010, she was accepted by the seller of the Toys department at the U Rosa store, owned by the individual entrepreneur L.

An error was made in the employment contract dated June 11, 2010 and it is stated that this contract was concluded for the period from June 11, 2010 to June 11, 2010. However, on May 31, 2011, an employment contract was signed between the parties for the period from May 31, 2011 to May 31, 2012. On June 11, 2010 and May 31, 2011, respectively, a full liability agreement was signed with U. On January 10, 2012, in the Toys department of the U Rosa store, the defendant was found to have a shortage of material assets in the amount of 715,502 tenge. According to the decision of the court of first instance, this shortage was caused by U., who did not ensure the safety of the property transferred to her, on the basis of a written agreement on assuming full financial responsibility (paragraph 1 of Article 167 of the Labor Code). The Supervisory Judicial Board considered that these conclusions of the court of first instance did not correspond to the actual circumstances of the case, they were made prematurely. As established in the case, the defendant U. She did not participate in the trial and did not provide an explanation of the claims in the case. The court made a decision in absentia on the case. At the request of the defendant's representative, the court ordered a judicial accounting examination in the present case.

Lawyer for the recovery of the amount of damage caused by an employee in the performance of work duties and the cost of paying the state fee

For the successful conduct of the forensic examination, expert E. petitioned the court to provide: an act of acceptance and transfer of goods and material values to L., an employee of U. on June 11, 2010, invoices for the period from June 11, 2010 to January 10, 2012; invoices, reports, documents confirming the transfer of proceeds from U., for the period from 11 June 2010 to January 10, 2012; cash register, cash reports of the store "At Rosa", department of "Toys" for the period from June 11, 2010 to January 10, 2012; act of inventory of the store "At Rosa", department of "Toys" on January 10, 2012; U.'s material reports for the period from June 11, 2010 to January 10, 2012, indicating the period (year). The requested documents have not been provided to the expert in full by the plaintiff. For this reason, the expert, in his opinion dated August 27, 2012, did not give a complete and objective answer to all the questions posed to the expert, which require the use of special knowledge.

The court of first instance motivated its conclusions with the conclusion of specialist M., who deduced the difference between the shortage of defendant U. in the balances in the submitted reports for the specified period and the audit report dated January 10, 2012, in the amount of 719,802 tenge, as well as the testimony of witnesses of the chief accountant of IP L. – Kh. and seller K. In addition, it should be noted that the audit report On January 10, 2012, it was conducted with the participation of these witnesses and this act was carried out by U. It is not signed, as she does not agree with the audit findings. Applicant U. In the petition, she indicated that the Rosa store had six departments, where six sellers worked. The keys to the store were always in the possession of the owner L. and his wife, who had direct access to the goods and material values. She did not participate in the audit. There is a shortage of valuables not only in the Toys department, but in all six sellers. At the same time, these arguments of the defendant were also not investigated by the court of first instance. As can be seen from the case file, there were no unauthorized entries into the store during the period of U.'s work as a salesman. At the same time, the court has not established any objective prerequisites and reasons for the shortage of commodity values in the "Toys" department of the U Rosa store. In these circumstances, the supervisory judicial board recognized as justified the arguments given in the petition that the court of first instance incorrectly determined the range of circumstances relevant to the case, and made conclusions that did not correspond to the circumstances established in the case. The court's decision is not based on the norms of substantive law applicable to this legal relationship, and does not proceed from the general principles and meaning of civil legislation.  According to subparagraph 2) of part 4 of Article 398, paragraph 1 of Article 364, subparagraphs 1), 2) of Article 365 of the CPC, incorrect definition of the range of circumstances relevant to the case, lack of evidence of circumstances relevant to the case established by the court of first instance, inconsistency of the conclusions of the court of first instance set out in the decision, the circumstances of the case, improper application The law provides grounds for the supervisory review of a court decision. In view of the above, the supervisory judicial board considered it necessary to cancel the judicial act that took place in the case and send the case for a new judicial review. Upon a new review, it is necessary to carefully check all accounting documents from the individual entrepreneur L. concerning the activities of the seller U. in the Toys department separately and in the U Rosa store as a whole, determine the causes of the shortage of commodity and material values, namely, in the Toys department during the period of the defendant's work from June 11, 2010 to January 10, 2012, if necessary, conduct additional forensic accounting examination, appoint an audit with the participation of disinterested In the outcome of the cases, the experts and U., depending on the established, resolve the dispute on the merits. 

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