Violation of the internship rules for the Chamber of Private Bailiffs

No. 6001-23-00-6ap/83 dated 05/11/2023.

Plaintiffs: N.A.

The defendant:       Institution "Training Center at the Republican Chamber of Private Bailiffs"

The subject of the dispute: on the recognition of the illegal and cancellation of the protocol decision of the Commission of the Training Center on the refusal to approve the conclusion of the internship, on the compulsion to approve the conclusion of the internship

 

Review of the plaintiff's cassation appeal

PLOT:

N.A., on the basis of an internship agreement dated 03/26/2021, completed an internship on a paid basis from April 1, 2021 to April 1, 2022 with a private bailiff of the executive district of the K.E. region, who subsequently submitted a submission to the Educational Center for approval of the internship report regarding N.A.

According to the decision of the Commission of the Training Center dated 30.06.2022, the plaintiff was denied approval of the internship report, disagreeing with the decision of the commission, the plaintiff appealed it to the court in the order of the ACC.

Judicial acts:

1st instance: the claim is partially satisfied. The Commission's protocol decision on the refusal to approve the internship was declared illegal and cancelled. The satisfaction of the claim in part of the invitation to approve the internship certificate was refused.

Appeal: the court's decision is overturned, the claim is returned.

Cassation: the court's decision is upheld.

Conclusions:

In Appendices 2 and 3 to the Rules for the Provision of Public Services "Certification of persons applying for employment as a private bailiff", approved by Order of the Ministry of Justice of the Republic of Kazakhstan dated May 29, 2020 No. 69 (hereinafter referred to as the Rules)It is stipulated that persons applying to engage in the activity of a private bailiff must provide an approved internship report in order to pass certification and obtain a license.

The Court of First instance, partially satisfying the claim, based its conclusions on the fact that the claim in this part was lawfully filed by the plaintiff to the proper respondent, since the Training Center has the authority of the administrative body, and the Commission's decision to refuse to approve the internship is an onerous administrative act that violates the plaintiff's right to further certification for obtaining a license.

The defendant did not comply with the requirements of the Internship Rules for a private bailiff, which resulted in a violation of the plaintiff's rights when reviewing his conclusion based on the results of the internship, in this connection, according to the court's conclusion, the protocol decision adopted by the defendant is illegal and is subject to cancellation.

Disagreeing with the above-mentioned conclusions of the court, the appellate institution overturned the court's decision and returned the claim to N.A. on the basis of paragraph 11) of paragraph 2 of Article 138 of the CPC, since, according to the conclusion of the appellate institution, the legal relations of the parties arose from the internship agreement, that is, from a civil transaction that is not subject to review in the procedure of the CPC, but are subject to review in the order of the civil legal proceedings.

The Judicial Board recognized that the conclusion of the court of appeal on the return of the claim on the above grounds is incorrect.

According to paragraph 2 of Article 102 of the CPC, the courts have jurisdiction in administrative proceedings over disputes arising from public law relations provided for by this Code.Based on the meaning of the norms of subparagraphs 4), 7) and 21) of the first part of Article 4, Article 132 of the CPC, the judicial board agreed with the conclusions of the Court of the first instance that this claim was brought against the proper defendant at the Lyceum Center and, accordingly, was subject to consideration in the administrative proceedings. Since it has been reliably established that the Commission that issued the protocol decision on the refusal to approve the applicant's internship conclusion was established at the Training Center, and the latter, in turn, is vested with the authority to adopt a favorable or burdensome administrative act regarding the approval of the internship conclusion in relation to the applicant.

At the same time, the contested decision of the Commission made in relation to the plaintiff is an onerous act, since without obtaining a positive decision of the Commission, the plaintiff is effectively deprived of the opportunity to proceed to the next stage of certification and subsequent obtaining a license to engage in the activities of a private bailiff, which violates his rights as a recipient of public services.

Consequently, the conclusions of the court of appeal that the above claim is not subject to consideration in the order of administrative proceedings, due to the fact that the legal relations of the parties arose from a civil transaction, are not based on the law.

In addition, the court of first instance, in support of its decision, legitimately pointed out a violation by the defendant of paragraphs 4, 11 of the Rules for Internship with a private bailiff, approved by Decree of the Minister of Justice of the Republic of Kazakhstan dated November 26, 2019 No. 561 (hereinafter - Rules), in particular, the Commission did not conduct the interview in full, instead of an odd number of people (at least five), including representatives of the Educational Center, members of the Republican Chamber of Private Bailiffs, as well as representatives of higher educational institutions and non-governmental organizations, only 4 members of the commission participated in the interview with Ch.A. at the meeting of the Commission (paragraph of the Rules).

The plaintiff was also notified of the time of the Commission meeting, which is scheduled for 10.00 a.m. on June 30, 2022, only the night before at 00.37 p.m., while the Training Center was obliged to notify N.A. of the date and time of the Commission meeting five calendar days before the scheduled meeting, that is, in advance (paragraph 11 of the Rules).

 

 

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