Typical violations of the rules of procedural law on the establishment of a fact of legal significance
A case concerning the establishment of a fact of legal significance is not subject to consideration in special proceedings if, when submitting an application or considering the case in special proceedings, it is established that there is a dispute over the law under the jurisdiction of the court. B., born on January 4, 1997, applied to the court with an application for the establishment of the fact of recognition of S.'s paternity in order to obtain inheritance. The application was granted by the decision of the Abai District Court of Shymkent dated December 14, 2016. In granting the application, the court of first instance was guided by the fact that S., who died on May 27, 2009, had recognized the applicant as his son during his lifetime. In accordance with article 47 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", in the event of the death of a person who recognized himself as the father of a child but was not married to his mother, the court has the right to establish the fact of his recognition of paternity. Such a fact may be established by the court according to the rules of special claim proceedings on the basis of comprehensively verified data, provided that there is no dispute about the law.
In accordance with part 2 of Article 304 of the CPC, if, when filing an application or considering a case in a special proceeding, it is established that there is a dispute over the right under the jurisdiction of the court, the court issues a ruling on leaving the application without consideration, in which it clarifies to the parties and interested persons their right to appeal to the court in the order of claim proceedings. It follows from the case file that the deceased S. was the husband of A. From this marriage they have children A., born on March 31, 1996, and B., born on November 4, 1998. The court of first instance had previously considered a claim for the division of inherited property between Zh. and A., A., which indicates that there is a dispute over the right to inherited property. Thus, when resolving the application by the court, the norms of procedural law were incorrectly applied, therefore, by the decision of the court of appeal of March 30, 2016, the court's decision to establish the fact of recognition of paternity was reasonably canceled.
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