The quality of the preparation of cases for trial, Compliance with the norms of the procedural law in a civil case
The study of civil cases related to the application of land legislation has shown that the contents of claims and other statements of claim in this category of disputes, as a rule, comply with the requirements of the procedural law. If they do not comply with the requirements of Article 150 of the CPC, the applications remain motionless, with a reasonable time to eliminate the shortcomings that served as the basis for leaving them motionless. At the same time, when accepting statements of claim (applications) and civil proceedings, they do not always check the compliance of these statements with the requirements of Article 150 of the CPC and do not take measures provided for by the procedural law. When examining the cases, the fact was revealed when, according to the statement of S. When accepting the application, the judge did not pay attention to the fact that the application was not signed by the applicant, initiated a civil case and ordered a hearing on the merits, whereas according to Article 150 of the CPC, the application is signed by the plaintiff or his representative if he has the authority to sign and file a statement of claim. In such circumstances, the application did not comply with the requirements of the procedural law, and therefore it was subject to be left without motion in accordance with the provisions of Article 155 of the CPC RK. When applying to the court, plaintiffs (applicants) who are not exempt in accordance with the provisions of Article 541 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (Tax Code) pay a state fee in the amount established by law.
At the same time, there are doubtful cases when the plaintiffs in cases of reclamation (return, release) of land plots belonging to the plaintiffs on the right of private ownership (part of them) paid the state duty in the amounts stipulated for payment in non-property lawsuits.According to T. K.'s claim for the release of the land plot, the state duty was paid in the amount of 707 tenge, i.e. 50% of the MCI, or in the amount of the state duty on a non-property dispute. Meanwhile, there is actually a dispute about the reclamation of a land plot (property) from someone else's illegal possession, this property has a market value, and according to Article 102 of the CPC, in claims for the reclamation of property, the price of the claim is determined by the value of the property being sought, determined at market prices prevailing at the location of the property at the time of the claim. According to the claim of the State Institution "Akim's Office Petropavlovsk" to A. on the release of an arbitrarily occupied land plot, by the absentee decision of the Council of Economic and Social Council of December 28, 2011, left unchanged by the decision of the Appellate Judicial Board of the North Kazakhstan Regional Court of April 28, 2012, the claims were satisfied, the defendant was charged to the local budget, as in a non-property dispute in the amount of 756 tenge or 50% MCI. It should be noted that not only in the above case, but also in a number of other cases, lawsuits were filed by the State Institution "Office of the Akim of Petropavlovsk" of the akim of the district and rural district, however, this circumstance was not given a legal assessment by the courts, bearing in mind that according to articles 1, 38 of the Law "On Local Public Administration and Self-Government in The Republic of Kazakhstan" - These state institutions provide only the activities of the local executive body (if established) and akim, providing information and analytical, organizational, legal and logistical support for their activities. Based on the above, it can be concluded that these institutions only ensure the activities of the Akimat and Akim and are not authorized to file lawsuits on their behalf on issues within the competence of the local executive body and Akim.
The quality of the preparation of cases for trial, Compliance with the norms of the procedural law in a civil case
However, according to the claim against the individual entrepreneur Zh. The State Institution "Akim's Office of the Smirnovsky Rural District" filed a claim for compensation of material damage. According to the results of the case review, the claims were satisfied by the decision of the Council of Economic and Social Council of May 17, 2012. At the same time, when accepting the statement of claim and initiating a civil case, the judge did not take into account that the statement of claim was not signed by the head of the State Institution Akkayinsky District Department of Land Relations, who was also named as the plaintiff in the statement of claim, i.e. in fact, this institution did not file a claim. Despite this circumstance, when making the decision, in the introductory, motivational and resolute parts of the State Institution "Akkayinsky district Department of Land Relations", it is indicated as the plaintiff in the case. When filing claims (applications), individuals and legal entities often incorrectly indicate the name of the defendant (the body whose actions are being appealed), however, when accepting such statements, judges do not pay due attention to this, and in some cases repeat in judicial acts the names indicated by the plaintiff (applicant). These are incorrect names. I filed a lawsuit with the State Institution "Akimat of Petropavlovsk" to cancel the decision of the commission on the legalization of real estate. The judge and the court did not take measures to eliminate the lack of a statement of claim, and moreover, in the introductory and operative parts of the judgment of the Petropavlovsk City Court No. 2 dated September 20, 2010, the Akimat of Petropavlovsk was indicated as the defendant in the case, i.e. a non-existent state institution, since in accordance with Article 30 of the Law "On Local Government and Self-Government in the Republic of Kazakhstan" (cities of regional significance), the akimat is part of the unified system of executive bodies of the Republic of Kazakhstan, ensures the implementation of a national policy of executive power in combination with the interests and needs of the development of the relevant territory. The district akimat is headed by the akim of the district (city of regional significance), it is a collegial body that is not a legal entity.
The application states that KH "M" is challenging the decision of the State Institution "Akim's Office of Zhambyl district", meanwhile, it is clear from the case file that the applicant is actually raising the issue of revoking the decision of the Akimat of Zhambyl district, the legality of which was investigated by the court, however, the introductory and operative parts of the IESC decision of May 04, 2012 contain a reference to the decision of the State Institution"The Office of Akim of Zhambyl district, which indicates the inattention of the judge. Moreover, the descriptive part of the decision in this case does not comply with the requirements of Article 221 of the CPC and paragraph 10 of the normative resolution of the Supreme Court of the Republic of Kazakhstan No. 5 dated 07/11/2003 "On judicial decision", according to which the content of the stated claims, including if the plaintiff changed the grounds or subject of the claim, reduced its size, should be reflected in the descriptive part. parts of the solution. In addition, the descriptive part of the decision should contain the objections of the defendant and the explanations of other persons involved in the case. As indicated in paragraph 6 of the normative resolution of the Supreme Court No. 6 dated 07/16/2007 "On certain issues of the application of land legislation by courts" - according to Articles 26, 29, 30, 33 of the Law "On Local Government in the Republic of Kazakhstan" dated 01/23/2001" - Akim represents the interests of the relevant administrative-territorial unit in relations with citizens, legal entities and government agencies.
Consequently, when challenging decisions and actions on the provision or seizure of land, the akim of the relevant territorial unit must act as a party to the case. The legality of the ruling of the Yesilsky District Court dated October 07, 2011 on the refusal to accept the application of the State Institution "Department of Land Relations of the Yesilsky district" on the application to S. for recognition of the land plot as state property, on the grounds that this application is not subject to consideration and resolution in civil proceedings. From the contents of the application and the attached materials, it can be seen that by the decree of the Akimat of the district dated 06/20/2008, S. was granted the right of temporary paid land use for a land plot of 67 hectares on lease terms for a period of 10 years, however, on 06/16/2010, the akimat of the district received a notarized statement from S. on the waiver of the right of temporary paid land use for this land plot, in connection with therefore, this land plot was registered as ownerless on 23.06.2010. Refusing to accept the application, the judge referred to the fact that the land plot is not ownerless, since it was and is in state ownership, and therefore, if there is a notarized application from the land user, the local executive body has the right to issue a resolution partially canceling the previously issued resolution granting S. the right of temporary paid land use, i.e. termination of the lease right. The judge's conclusions that the land plot is not ownerless, since it was and is in state ownership, seem justified, since granting S. the right of land use to the land plot did not entail the termination of the state's property rights to this land plot, which continued to remain in state ownership.
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