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Assigning the obligation to pay capitalized payments to the state due to the absence or insufficiency of property of a liquidated legal entity is one of the ways to ensure the rights of a citizen to social security guaranteed by Article 28 of the Constitution of the Republic of Kazakhstan in case of illness, disability, loss of breadwinner
A. filed a lawsuit with the Ministry of Health and Social Development of the Republic of Kazakhstan, a third party on the defendant's side - the Russian State Institution "Department of the National Bureau for Combating Corruption (Anti-Corruption Service) in the West Kazakhstan region" to recover the amount of capitalized payments in the amount of KZT 6,566,114. The plaintiff motivated his claims by the fact that, based on the court's decision, he was the recipient of monthly payments in the amount of 20,978 tenge to compensate for lost earnings from the Department for Combating Economic and Corruption Crimes in the West Kazakhstan Region (hereinafter referred to as DBEKP in the West Kazakhstan region), starting from July 24, 2013. After the liquidation of the DBECP in the West Kazakhstan Region, payments have been discontinued. Repeated requests for the resumption of payments were refused, since the newly created state bodies are not legal successors. By the decision of the Esil District Court of Astana dated November 30, 2016, A.'s claim was partially satisfied, and the amount of capitalized payments in the amount of KZT 6,419,268 was recovered from the Ministry of Health and Social Development of the Republic of Kazakhstan in his favor. The claims for recovery of court costs were refused. By the resolution of the Judicial Board for Civil Cases of the Astana City Court dated January 17, 2017, the decision of the court of first instance was changed, the amount recovered from the Ministry of Health and Social Development of the Republic of Kazakhstan in favor of A. was reduced to 440,538 tenge. The rest of the court's decision remains unchanged. The Judicial Board for Civil Cases of the Supreme Court changed the decision of the appellate instance regarding the reduction of the amount recovered from the Ministry of Health and Social Development of the Republic of Kazakhstan in favor of A. to 440,538 tenge, leaving in this part the decision of the court of first instance in force on the following grounds. As can be seen from the case file, A. worked in the DBEKP in the West Kazakhstan region as a senior inspector for particularly important cases. In September 1998, while performing his official duties, he received a labor injury and was recognized as a group 2 invalid. By the decision of the Uralsk city Court No. 2 of September 20, 2013, which entered into force, it was decided to oblige the DBECP in the West Kazakhstan region to recalculate the amounts of compensation for A.'s lost earnings, determining as a percentage, based on the average salary and disability, 80%, taking into account the degree of the employer's guilt, 20%; to recover from the DBECP in the West Kazakhstan region for A.'s benefit, 20,978 tenge was reimbursed for lost earnings, starting from July 24, 2013, on a monthly basis.
Assignment of the obligation to pay capitalized payments to the state due to the absence or insufficiency of property of the liquidated legal entity
The court's decision was enforced and was being executed by the Department for the Enforcement of Judicial Acts of the West Kazakhstan Region. By Decree of the President of the Republic of Kazakhstan "On measures to further improve the public administration system of the Republic of Kazakhstan" dated August 6, 2014 No. 883, the Agency of the Republic of Kazakhstan for Combating Economic and Corruption Crimes (hereinafter referred to as the Agency) was abolished with the transfer of its functions and powers to the newly created Agency of the Republic of Kazakhstan for Civil Service Affairs. By order of the Agency dated November 6, 2014, a special commission was established to liquidate the DBECP in the West Kazakhstan region. On September 28, 2015, the Department of State Property and Privatization of the West Kazakhstan Region approved the liquidation balance sheet, which shows that A. was included in the register of debtors and a payment of 93,752 tenge was made for the period from November 2014 to February 2015. By Order of the Department of Justice of the West Kazakhstan Region No. 400 dated October 30, 2015, the termination of the activities of the DBECP in the West Kazakhstan region was registered, the state institution was excluded from the National Register of Business Identification Numbers. The court of first instance, partially satisfying A.'s claim, made the correct conclusion that he, having applied to the liquidation commission, did not receive the capitalized payments provided for by law, therefore he has the right to demand payment of capitalized payments from the state before the age of 70. By changing the court's decision and reducing the amount recovered from KZT 6,419,268 to KZT 440,538, the court of appeal reasoned that in this case there was not bankruptcy of the enterprise, but its liquidation, and the amount was subject to recovery on the day of the court's decision. The conclusions of the court of appeal, which formed the basis of the decision, were made when the norms of substantive law were incorrectly applied, which is the basis for changing the judicial act disputed in the petition.
Assigning the obligation to pay capitalized payments to the state due to the absence or insufficiency of property of a liquidated legal entity is one of the ways to ensure the rights of a citizen to social security guaranteed by Article 28 of the Constitution of the Republic of Kazakhstan in case of illness, disability, loss of breadwinner. The Law of the Republic of Kazakhstan "On the Republican Budget for 2015-2017" approved the program 028 "Compensation for damage caused to life and health imposed by the court on the state in case of termination of the activity of a legal entity", the administrator of which is the Ministry of Health and Social Development of the Republic of Kazakhstan. In accordance with paragraphs 2.3 of Article 945 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), collected monthly payments must be capitalized in cases where the capitalization of payments cannot be made due to the absence of a legal entity, the amounts awarded are paid to the injured State in accordance with the procedure provided for by legislative acts. By virtue of paragraph 6 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated October 28, 2005 "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", in the event that capitalized payments cannot be made by the bankruptcy trustee due to the absence or insufficiency of property of the liquidated legal entity, citizens has the right, in accordance with Article 945 of the Civil Code, to apply to the court with a statement on the assignment of the obligation to pay capitalized payments to the state. The courts have reliably established that due to the abolition of the Agency, the liquidation of the state body took place, while a liquidation commission was established, which, having included A. in the register of debtors, partially paid off the debt, however, did not capitalize the payments. Currently, the DBECP in the West Kazakhstan Region has ceased its activities, information has been entered into the National Register of Business Identification Numbers on exclusion from the register. Due to the fact that A. has not received capitalized payments, he has the right to demand an appropriate payment from the State. The Judicial Board considers that the conclusions of the court of appeal that it was not bankruptcy that was carried out, but the liquidation of a legal entity, are unfounded, made with a misinterpretation of the Law, since Article 945 of the Civil Code generally refers to the capitalization of payments in the event of liquidation of a legal entity, as well as their payment by the state.
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