Ways to protect and restore violated consumer rights
The Law "On Consumer Rights Protection", as well as the contract, may provide for the liability of the manufacturer (contractor, seller, authorized organization or authorized individual entrepreneur, importer) for violation of obligations. Such conditions of liability of the manufacturer (contractor, seller, authorized organization or authorized individual entrepreneur, importer), provided for by law or a contract with the consumer, must be taken into account by the court when resolving a dispute that subsequently arose between these persons. Losses caused to the consumer in connection with a violation by the manufacturer (contractor, seller, authorized organization or authorized individual entrepreneur, importer) of his rights are subject to full compensation, except in cases where the law establishes a limited amount of liability. At the same time, it should be borne in mind that losses are compensated in excess of the penalty (penalty fee) established by law or contract, payment of the penalty and compensation for losses do not release the person who violated the consumer's right from fulfilling in kind the obligations imposed on him to the consumer.
Ways to protect and restore violated consumer rights
Losses should be understood as expenses that the consumer, whose right has been violated, has incurred or will have to incur in order to restore the violated right, loss or damage to his property (real damage), as well as lost income that the consumer would have received under normal conditions of civil turnover if his right had not been violated (lost profits). If the person who violated the consumer's right received income as a result of this, the consumer has the right to demand compensation, along with other losses, for lost profits in an amount not less than such income. When considering disputes on consumer protection, it should be borne in mind that the consumer has the right to choose the type of claims that may be brought against the seller when selling goods of inadequate quality, if its shortcomings have not been specified by the seller. In this case, the consumer has the right to demand the replacement of a technically complex product or to refuse to execute the purchase agreement and demand a refund of the amount of money paid for the product, regardless of how significant the deviations from the quality requirements of the product were, provided that such claims were made within fifteen days from the date of its transfer to the consumer. When resolving the issue of compensation for moral damage to the consumer, the established fact of violation of consumer rights is a sufficient condition for satisfying the claim. When determining the amount of compensation for moral damage, the court is independent of the amount of compensation for property damage or the amount of the penalty to be recovered. The amount of compensation awarded to the consumer for moral damage must be determined by the court in each specific case, taking into account the nature of the moral and physical suffering inflicted on the consumer, based on the principle of reasonableness and fairness. In accordance with the requirements of Article 21 of the Law "On Consumer Rights Protection", moral damage caused to a consumer as a result of violation by the seller (manufacturer, performer) of his rights and legitimate interests provided for by the legislation of the Republic of Kazakhstan on consumer rights protection is subject to compensation in the presence of fault of the seller (manufacturer, performer) in the amount determined by the court, unless otherwise not provided for by the laws of the Republic of Kazakhstan. In resolving the consumer's claims for compensation for moral damage, the courts took into account the circumstances relevant to the proper resolution of the dispute, as well as a subjective assessment of the severity of the moral suffering caused, objective data indicating the degree of moral and physical suffering caused to the consumer, moral damage, and found out what types of suffering the plaintiff had suffered, and what they specifically expressed. The generalization showed that the courts, based on the requirements of reasonableness and fairness, correctly determined the amount of compensation for moral damage. During the analysis of the cases submitted for summary, it was found that in almost all consumer protection claims where the issue of compensation for moral damage was raised, such a claim was satisfied by the courts, with the exception of the courts of the Pavlodar region, which motivated the refusal to satisfy the claim regarding the recovery of compensation for moral damage by the fact that the plaintiff's property rights were violated, which In accordance with paragraph 4 of Article 951 of the Civil Code, compensation for moral damage is excluded. This legal position of the courts of the Pavlodar region is controversial, since paragraph 4 of Article 951 of the Civil Code has a clause "except in cases provided for by legislative acts," and Article 21 of the Law "On Consumer Rights Protection" explicitly provides for the possibility of collecting compensation for moral damage in case of violation of consumer rights as a result of the sale of substandard goods and services.
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