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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE KYRGYZ REPUBLIC

of December 5, 2003 No. 20

About some questions of court practice of the dispute resolution of protection of honor, advantage and goodwill

According to Art. 18 of the Civil code of the Kyrgyz Republic the citizen has the right to demand by court action confutations of the data discrediting his honor, advantage or goodwill, and the legal entity - the data discrediting its goodwill.

Due to the questions which arose in case of application by courts of regulations of the legislation on protection of honor, advantage and goodwill for the purpose of ensuring the correct and uniform application of the legislation regulating these legal relationship, plenum of the Supreme Court of the Kyrgyz Republic, being guided by article 15 of the Law "About the Supreme Court of the Kyrgyz Republic and Local Courts"

decides:

1. Draw the attention of courts that protection of honor, advantage and goodwill is constitutional right of citizens, and the goodwill of legal entities is one of conditions of their successful professional activity. It obliges courts to analyze all circumstances of each case by consideration of disputes on honor and dignity protection of citizens, and also goodwill of citizens and legal entities.

2. In case of permission of this category of cases courts should consider that the concepts "honor", "advantage", "reputation" determine themselves moral categories: honor is socially important objective assessment of the moral, business and other qualities of the personality which are positively determining its provision in society; advantage - reflection of this provision in consciousness of the personality, i.e. value judgment (self-assessment) based on socially important criteria of moral, business and other qualities of the personality; goodwill - the developed opinion on professional qualities, merits and demerits of the citizen, group (collective) of people, the organization or the legal entity prevailing in certain public circle.

3. Under distribution of the data discrediting honor and advantage of the citizen, goodwill of the citizen or legal entity it is necessary to understand publication of such data in seals, the message on radio, television, with use of other mass media, statement in the office characteristics, public statements, statements addressed to officials or the message in other, including oral form to several persons or at least one person. The message of such data only to person whom they concern cannot be recognized their distribution.

4. Explain to courts that the untrue data containing approvals about violation by the citizen or legal entity of the current legislation or the moral principles (about making of dishonest act, the wrong behavior in labor or other collective, life and other data discrediting business and public work, goodwill, etc.) which belittle honor and advantage of the citizen or goodwill of the citizen or legal entity are discrediting.

5. According to the procedure, determined by Art. 18 of the Civil code of the Kyrgyz Republic, requirements about confutation of the data containing in judgments and sentences, resolutions of bodies of pretrial investigation and other official documents for which appeal other procedure established by the laws is provided cannot be considered.

6. Legal entities and citizens who consider that the untrue damaging evidence is spread on them have the right to make claims for cases of this category.

According to Art. of the Art. 4, 5 of the Code of civil procedure, item 1 of the Art. 18, item 3 of the Art. 50, item 3 of Art. 1120 of the Civil code of the Kyrgyz Republic upon the demand of the interested person is allowed judicial protection of honor, advantage and goodwill of the citizen and after his death.

7. If the damaging evidence is spread concerning the minor or person recognized in accordance with the established procedure incapacitated the claim for protection of their honor and advantage their legal representatives (parents, adoptive parents, guardians, custodians), the prosecutor according to the procedure of the Art. of the Art. 45, have the right to show 56 Codes of civil procedure of the Kyrgyz Republic and other interested persons.

8. According to Art. 18 of the Civil code of the Kyrgyz Republic if the data discrediting honor, advantage or goodwill of the citizen, and also the data discrediting goodwill of the legal entity are distributed in mass media, they shall be confuted in the same mass media.

If the specified data contain in the document proceeding from the organization, such document is subject to replacement or response.

In other cases the court establishes procedure for confutation taking into account the facts of the case.

Person concerning whom the information discrediting the honor and advantage or goodwill having the right to take a legal action with the statement for recognition of the spread information untrue and in that case when person who spread this information is not established is spread.

9. The right provided to citizens and legal entities to demand from mass media of the publication of confutation or the answer to the published data do not deprive of these citizens and legal entities of the right to direct appeal to the court with the claim for confutation of the data discrediting honor, advantage or goodwill of the citizen, and also the data discrediting goodwill of the legal entity.

10. By preparation of cases for legal proceedings by courts it shall be considered that defendants in claims for confutation of the data discrediting honor and advantage or goodwill are persons which extended them. According to requirements of Art. 60 of the Code of civil procedure the claimant shall prove the fact of distribution of the data discrediting it by person to which the claim is made, and the obligation of proof of compliance of the spread information of reality is assigned to the defendant.

If the claim contains the requirement about confutation of data in mass media, as defendants are attracted the author and the body representing appropriate means of mass information, person which provided information material. In case of publication or other distribution of such data without designation of name of the author (for example, in the editorial article) the body (edition) representing appropriate means of mass information is attracted by the defendant in case.

In claims for confutation of the damaging evidence stated in office characteristics, defendants are persons which signed them, and the company, organization, the organization on behalf of whom the characteristic is issued.

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