The Ministry of Justice declared the order illegal and cancelled
No.6001-23-00-6ap/753) dated 19.10.2023
Plaintiff: A.I.
Respondent: State Institution "Ministry of Justice of the Republic of Kazakhstan" (hereinafter – the Ministry)
Interested party: Russian State Institution "Department of Justice of the Ministry of Justice of the Republic of Kazakhstan" (hereinafter – the Department)
The subject of the dispute: the recognition of the illegal and cancellation of the order
Review of the plaintiff's cassation complaint PLOT:
Based on the purchase and sale agreement dated May 21, 2016, T. was the owner of a 2016 Toyota Land Cruiser 200 car, identification number JTMHX02J904120392.
On December 9, 2016, notary A.I. issued a power of attorney on behalf of T. authorizing A.M. and K.A. to de-register and dispose of the car, including its sale, and receive the money owed to T. (hereinafter referred to as the power of attorney).
On February 19, 2020, T. filed an application with the internal affairs authorities to bring I.A. to criminal responsibility for fraud in the purchase of a car.
On August 7, 2020, by a decision of the prosecutor, the pre-trial investigation into the criminal case initiated on the basis of T.'s statement was terminated, there was a will of T. herself.
By a court decision that entered into force on December 8, 2020, T.'s claim for invalidation of the power of attorney was denied due to the court's application of the statute of limitations. The purchase and sale of a car, made on the basis of a power of attorney, was upheld by the court. On August 2, 2022, the Department received T.'s request that the power of attorney on her behalf for A.M. and K.A. was certified by notary A.I.
illegal in her absence.
By the Act of August 4, 2022, the Department appointed an inspection on this fact.
According to the Inspection Results Act No. 47 dated August 12, 2022, violations of paragraph 1 of Article 58 of the Law of the Republic of Kazakhstan "On Notaries" (hereinafter referred to as the Law), paragraph 9 of the Rules for performing Notarial Acts by Notaries, approved by Order of the Minister of Justice of the Republic of Kazakhstan No. 31 dated January 31, 2012 (hereinafter referred to as the Rules), were revealed.
On September 16, 2022, the Department sent a submission to the Ministry regarding the suspension of license No. 12003781 dated May 24, 2012, issued in the name of A.I.
On October 7, 2022, the Ministry issued an order suspending license No. 842 for a period of six months.
A.I. sued the Ministry to declare illegal and revoke Order No. 842 of October 7, 2022 suspending the license for a period of six months, arguing that the basis for issuing the order was the Department's submission based on an expert opinion dated December 9, 2016, which stated that the signature on the power of attorney was not made by T. herself, but by another person. He believes that the reference to one conclusion cannot be justified, since it is subject to evaluation in conjunction with other evidence.
Judicial acts:
1st instance: the claim is satisfied. It was decided to declare illegal and cancel the Ministry's order No. 842 dated October 7, 2022 "On suspension of the license".
Appeal: the court's decision was overturned, and a new decision was made to dismiss the claim.
Cassation: the decision of the judicial board is upheld.
Conclusions: The court of first instance motivated the satisfaction of the claim by the fact that A.I.'s actions had not violated T.'s rights and legitimate interests.
The court of appeal motivated the cancellation of the SMAS decision and the refusal to satisfy the claim on the following grounds.
Thus, according to paragraph 2 of Article 10 of the Law, the validity of a notary's license is suspended for up to six months in the event that a notary violates the legislation of the Republic of Kazakhstan when performing notarial acts that violate the rights and legitimate interests of the state, individuals and legal entities.
Paragraph 9 of the Rules provides that transactions, applications and other documents certified by a notary are signed by the participants in the presence of a notary with a signature and writing their surnames, first names and patronymics (if any) (hereinafter – surname, first name, patronymic) in their own hand.
During the trial, it was established that T. was the owner of the car.
On December 9, 2016, A.I. issued a power of attorney on behalf of T. authorizing A.M. and K.A. to de-register and dispose of the car, including its sale, and receive the money due.
On the basis of the specified power of attorney, the car was sold.
On August 2, 2022, T. applied to the Department, stating that the power of attorney on her behalf had been illegally certified by the plaintiff in her absence.
Based on the consideration of the appeal, an audit was conducted against A.I., an audit report was drawn up on August 12, 2022, and a submission was made to the Ministry.
A.I. does not deny the fact of certifying T.J.'s signature on the power of attorney in the absence of the specified person.
In addition, the absence of T.'s signature on the power of attorney was confirmed by the conclusion of the forensic examination dated December 9, 2016 of the Institute of Forensic Examinations conducted pursuant to the decision of the police investigator.
The conclusions of the court of first instance on the absence of a violation of T.'s rights are based on the court decision of December 8, 2020, which entered into force, which considered T.'s claims to invalidate the power of attorney, the car purchase agreement dated March 7 and August 24, 2017.
It follows from this court decision that the car purchase and sale transaction was the expression of T.'s will.
The established circumstances in the court's decision cannot be used as a basis for the consideration of the present case, since in the civil case the court assessed car purchase and sale transactions, in addition, one of the grounds for rejecting the claim was the omission of the statute of limitations.
T.'s repeated appeals to the Department and the criminal prosecution authorities regarding the circumstances of the sale of the car and the issuance of a power of attorney show that the said person considers his rights violated.
By virtue of the requirements of Article 24-1 of the Law, the disciplinary commission of the Notary Chamber is the body for reviewing appeals and complaints about violations by members of the notary chamber of the requirements of the legislation of the Republic of Kazakhstan, the Notary Code of Ethics, the charter of the Notary Chamber, and the conditions of membership in the Notary Chamber.
The suspension of a license by the Ministry is not a disciplinary action, therefore, the time limits for disciplinary liability provided for in the Regulations on the Disciplinary Commission of the Notary Chamber and the procedure for reviewing complaints are not applicable.
The provisions of the Law do not provide for the terms of suspension or revocation of a license to engage in notarial activities in the event of violations of the legislation on the notary.
The certification of a signature in a power of attorney in the absence of the person on whose behalf the power of attorney was issued is a gross violation of the requirements of the Law and Rules when performing notarial acts, which is unacceptable in the activities of notaries.
The Judicial Board agrees with the conclusions of the court of appeal, as they correspond to the circumstances established in the case, are made with the correct application of substantive law and its interpretation, based on the evidence provided by the parties, which has been properly evaluated.
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