of December 20, 1991 No. 5
About court practice on cases on establishment of the facts having legal value
Pronouncement of legal, reasoned and fair judgments on cases on establishment of the facts having legal value promotes protection of the rights of citizens.
Courts generally correctly resolve these cases, providing protection of the interests of citizens protected by the law and the states.
At the same time, in some cases by hearing of cases by courts mistakes in application of the law are made. Acceptance to production of statements not subordinated to court takes place. Not always it becomes clear what consequence in law result from factual determination and also whether the possibility of obtaining or recovery of the lost document extrajudicially is excluded.
The circumstances connected with factual determination sufficiently are not checked, interested persons in case are not recruited in this connection on number of cases unreasoned decisions about satisfaction of petitions from citizens are passed.
Recognitions of the fact from factual determination of its registration are not accurately determined by courts of difference of establishment of dispositive facts from abnormality of civil registrations.
For the purpose of elimination of the specified massive faults and ensuring the correct and uniform application of the legislation the Plenum of the Supreme Court of the Republic of Uzbekistan decides:
1. Draw the attention of courts to need of strict observance of the legislation by hearing of cases on establishment of the facts having legal value, every possible ensuring protection of the rights and legitimate interests of citizens and the organizations.
2. Courts are followed to mean that according to Article 295 of the Code of civil procedure of the Republic of Uzbekistan (further - GPK) the list of the facts having legal value, which are subject to establishment judicially is not exhaustive.
The court has the right to determine also other facts having legal value if it is not carried by the law to competence of other body. The court, in particular can determine the fact:
recognitions of paternity concerning the children who were born till October 1, 1968, paternity and registration of paternity;
implementations of the invention, qualification of the offer as rationalization;
ownerships of the structure, share, the car and other property which is subject to special registration;
accessories of the insurance certificate;
evacuations of the citizen or his parents during World War II to the Republic of Uzbekistan.
3. Judicially applications for establishment of such facts concerning which the current legislation provides other (extrajudicial) procedure for their establishment cannot be considered. So, the fact is not subject to establishment judicially:
a) passings of active duty, stay in guerrilla group, receipts of wound in fights;
b) age of the person;
c) terminations of higher educational institution, technical school, high school and other educational institutions;
d) accessories of party, trade-union, military documents, passports and certificates granted by bodies of civil registration.
4. In Article sense 295 GPK court take cognizance of the statement for factual determination if:
a) under the law such fact generates certain legal effects (origin, change or the termination of personal or property rights of citizens or the organizations) for the applicant;
b) the fact is not connected with the dispute resolution about the right, subordinated to court;
c) the applicant has no other opportunity to documentary certify the fact having legal value;
d) the legislation does not provide other procedure for their establishment.
The court has the right to determine the fact which does not have by the legislation of the Republic of Uzbekistan of legal value if by the legislation of other country this fact attracts consequence in law and there is international agreement about rendering on the matter of mutual legal assistance.
5. Courts need to mean that according to Article 295 GPK the facts having legal value not only according to petitions from citizens, but also according to statements of the organizations judicially are determined.
6. During preparation of case for legal proceedings the judge shall find out:
what purpose requires establishment of this fact;
what persons and the organizations can be interested in permission of case and are subject to attraction to participation in case;
what proofs confirm this fact.
The judge has the right to require also representation by the applicant of the corroborating evidences confirming impossibility of obtaining or recovery of the document certifying the fact.
The interested person on the case of factual determination, having legal value, has all rights and obligations, stipulated in Article 40 GPK.
Cases on establishment of the facts having legal value are considered by courts on general civil procedure rules with the withdrawals and amendments provided in Chapters 27 and 28 of GPK.
7. Explain to courts that under the related relations according to Item of 1 part two of Article 295 GPK mean the blood relations existing between the people occurring from each other (the great-grandfather, the grandfather, the father, the son, the grandson, the great-grandson, the great-grandmother, etc.) or from one general ancestor (brothers, sisters, uncles, aunts, nephews, etc.).
Lack of blood relations testifies also to lack of relationship.
The fact of the related relations is determined judicially when it directly generates legal effects, for example, if establishment of such fact is necessary for the applicant for receipt of the certificate on the right to inheritance, for registration of pension on the occasion of loss of the supporter, etc.
In case of factual determination of the related relations for the purpose of receipt of the certificate on the right to inheritance, courts shall proceed from circle of the relationship provided by the regulations of the civil legislation regulating succession law. In case of factual determination of the related relations with the testators who were constantly living outside the Republic of Uzbekistan, the court should be guided by the law determining circle of heirs and the relation by inheritance of that country where the testator took the last permanent place residence.
In case of factual determination of the related relations with the purpose of registration of pension on the occasion of loss of the supporter it is necessary to proceed from the circle of members of the family of the dead established by the pension legislation which is not subject to extensive interpretation having the right to it";
to exclude words from paragraph two of Item 8 "(Art. 274-275 of GPK).
8. In case of reception of an application about factual determination of the related relations the judge shall request surely the conclusion of bodies of registry office about refusal in recovery of the lost birth record or the certificate of impossibility of receipt of the certificate of birth or scrap of the applicant or persons concerning whom the application is submitted.
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