When a legal entity is liquidated as a result of bankruptcy, the State is not its legal successor.
D. filed a lawsuit with the Ministry of Labor and Social Protection of the Population (hereinafter referred to as the Ministry) to recover 4,048,145 tenge in compensation for damage caused to health, as well as postage in the amount of 70,854 tenge. By the decision of the Yessil District Court of Astana dated February 20, 2013, which was left unchanged by the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Astana City Court dated May 2, 2013, D.'s claim was partially satisfied. It was recovered from the republican budget in favor of 2,304,879 tenge. The Ministry is responsible for the execution of the court's decision. The rest of the claim was denied. By the decision of the Cassation Judicial Board of the Astana City Court dated July 2, 2013, the decision of the Court of appeal was left unchanged.By the decision of the Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of September 26, 2013, the initiation of supervisory proceedings to review the above judicial acts was refused.
When a legal entity is liquidated as a result of bankruptcy, the State is not its legal successor.
The Prosecutor General's protest raised the issue of revoking the contested judicial acts and sending the case for a new hearing on the grounds of improper application of substantive law. Having examined the case materials, the supervisory board of the Supreme Court found the protest to be satisfied by virtue of the following. It follows from the case file that D., while working as a gas-electric welder in the Alma Ata specialized mobile column of the trust "K" (hereinafter referred to as the trust), suffered an occupational injury on August 27, 1981. Since March 1, 1982, A third disability group has been identified with a 60% degree of disability. By the decision of the People's Court of the Oktyabrsky district of Alma-Ata dated October 22, 1982, 1,189 rubles 95 kopecks were collected from the Alma-Ata specialized mobile column of the trust in favor of D. as compensation for lost earnings, as well as 178 rubles each monthly from August 4, 1982 to April 1, 1983 (until the next re-examination). On September 28, 2000, D. was diagnosed with a third disability group for an indefinite period with a 60% degree of disability.
Currently, D. is a citizen of the Russian Federation and resides on its territory. Referring to the liquidation of the trust, as well as to the provisions of the Agreement on Mutual Recognition of Rights to Compensation for Damage Caused to Employees by Injury, Occupational Disease or Other Damage to Health Related to the Performance of Their Work Duties, dated September 9, 1994, to which the Republic of Kazakhstan is a party, D. previously filed a lawsuit with the Ministry for the recovery of capitalized payments. By the decision of the Turksib District Court that entered into force Almaty, on June 12, 2008, 1,081,888 tenge was recovered from the Ministry in favor of D. as compensation for lost earnings for the period from June 2003 to November 2006. Subsequently, D. applied to the court with a claim for compensation of lost earnings for the period from 2006 to October 2012. Partially satisfying D.'s claim, the court proceeded from the circumstances established by the court decision of June 12, 2008, which entered into force, which recognized the latter's right to file claims against the state for damage to health caused during his work at the trust, and, applying the statute of limitations, recovered from the Ministry the lost earnings for the period from 2009. until 2012. By virtue of the second part of Article 66 of the CPC, the circumstances relevant to the proper resolution of the case are determined by the court on the basis of the claims and objections of the parties and other persons involved in the case, taking into account the applicable rules of substantive and procedural law, which in this case was not done by the court.
When determining the amount of compensation, the court proceeded from the average salary of construction workers in the Republic of Kazakhstan in 2009 – 2012. These conclusions of the court do not correspond to the actual circumstances of the case and contradict the norms of substantive law. In accordance with paragraphs 2 and 3 of Article 945 of the Civil Code, when a legal entity responsible for harm to life and health is liquidated, the corresponding payments must be capitalized to pay them to the victim. In cases where the capitalization of payments cannot be made due to the absence or insufficiency of property of the liquidated legal entity, the awarded amounts are paid to the injured State in accordance with the procedure provided for by legislative acts. According to paragraph 1 of Article 77 of the Law "On Bankruptcy", the amount of claims of citizens to whom the debtor is responsible for causing harm to life and health is determined by capitalizing the corresponding time-based payments (in the amount on the day the debtor is declared bankrupt) to be paid to the citizen before he reaches the age of seventy. This amount is not subject to indexation, as well as upward or downward revision. From the literal meaning of the verbal expression of the above norms, it follows that the state, as the guarantor of the protection of citizens' rights to social security, can be held responsible for compensation for damage caused to employees only to the extent that existed at the time of the liquidation of the enterprise. Contrary to these requirements, the court did not determine the period of liquidation of the Alma Ata specialized mobile column of the trust, nor did it establish the amount of responsibility of the enterprise to D. at the time of liquidation. Taking into account that, by virtue of paragraph 8 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated October 28, 2005 No. 4 "On the practice of applying legislation on compensation for damage caused to life and health of citizens during the liquidation of a legal entity as a result of bankruptcy", the state is not the legal successor of the liquidated legal entity, imposing on the state the obligation to compensate D. for lost earnings based on the average salary in the country at the time of the dispute, it does not comply with the above-mentioned norms of the Civil Code and the Law "On Bankruptcy".
Taking into account the above, the supervisory board of the Supreme Court considered justified the arguments of the protest that during the consideration of the case by the court, a one-sided assessment of the evidence presented was given, the norms of substantive and procedural law were violated; the range of circumstances relevant to the case was incorrectly determined and clarified; the conclusions set out in the judicial acts did not correspond to the circumstances of the case. These violations are significant because they led to an incorrect resolution of the case, and in this regard, the board considered the judicial acts that took place in the case to be annulled and the case sent for a new hearing to the court of appeal. When reviewing the case again, it is necessary to eliminate the violations committed by the court, clarify the plaintiff's claims, establish whether the company where the plaintiff was injured has ceased operations, whether this is related to bankruptcy, liquidation or reorganization, and, depending on what is established, make a lawful and reasonable decision.
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