of September 27, 2003 No. 14
About some questions of court practice of hearing of cases of recognition of the property right to vehicles
Realization of the property right concerning vehicles has the features which are determined by specifics of the vehicle in case of its proper use as the subject constituting the increased danger. Therefore use of the citizen of the car belonging to it on the property right is put into dependence on its registration in bodies of the State automobile inspectorate.
Studying of cases on recognition of the property right to vehicles showed that generally they were considered according to the procedure of establishment of the facts having legal value. On these cases proper pre-judicial preparation was not carried out, justification of requirements of applicants was not checked. Courts did not observe their considerations established by Chapters 29 and 30 of the Code of civil procedure of the Kyrgyz Republic procedure, circumstances under which the satisfaction of the declared requirement is possible were not considered.
From materials of the studied cases it is visible that in essence applicants took a legal action with the requirement about recognition of the property right to cars for cause of failure by bodies of the State automobile inspectorate in making of registration actions because of not removal of motor transport from accounting in the place of the last registration outside the republic, and also non-presentation of customs papers behind which it would be necessary to address to customs authorities.
Courts, meeting the declared requirements, passed unmotivated decisions on assignment of obligation on bodies of GAI to register the vehicle, to issue the relevant documents, and on the vehicle imported into the republic superficially exempted applicants from payment of the obligatory payments provided by the customs legislation.
In materials of the studied cases there are no data that applicants addressed to bodies of the State automobile and customs inspectorates for questions of registration and customs clearance of the car and to them was refused the solution of these questions. Nevertheless, courts did not explain to applicants that they have the right to take a legal action with the statement for contest of decisions and actions of officials of the specified bodies according to the procedure of Chapter 27 of the Code of civil procedure.
On some cases the property right concerning motor transport imported on the territory of the Kyrgyz Republic was established by recognition of transactions of purchase and sale valid between the owner of the car and the owner. At the same time in cases there are no data that cars passed customs clearance. Actions for declaration on these cases under the specified circumstance were not subject to satisfaction. By courts it was not considered in these cases that customs offense attracts administrative or criminal liability.
In defiance of requirements of Articles 156, of 215, of 271, 295 Codes of civil procedure of the Kyrgyz Republic cases were considered without notice and participation of bodies of the State automobile and customs inspectorates, copies of decisions did not go to these bodies, in this regard these cases in appeal and supervising procedure were not considered.
Based on stated, for the purpose of the correct and uniform application of the legislation by hearing of cases on recognition of the property right to vehicles and according to article 15 of the Law "About the Supreme Court of the Kyrgyz Republic and Local Courts", the Plenum of the Supreme Court of the Kyrgyz Republic
1. Draw the attention of local courts of the Kyrgyz Republic to the facts of violations of the current legislation by hearing of cases about recognition of the property right to vehicles.
2. Explain to courts that statements for recognition of the property right to vehicles based on refusal of registration bodies to register the car, are subject to refusal in acceptance. In case of receipt of such statements courts should explain to applicants their right of appeal of actions (failure to act) of officials of registration authorities judicially. In case of adoption of such statement, it is subject to refusal in satisfaction with suit abatement.
3. Courts have no right to recognize valid transactions, and also the property right concerning the vehicles imported to the territory of the Kyrgyz Republic on which the requirements established by the customs legislation are not fulfilled. In case of adoption of such statements they are subject to leaving without consideration.
4. Determining the facts having legal value, protecting the rights and interests of citizens, legal entities and the state, courts protected by the law at the same time shall stop use of legal process of establishment of the facts for the purpose of illegal receipt of privileges and other property benefits, including evasion from customs payment, other taxes and fees.
Chairman of the Supreme Court
Judge of the Supreme Court
Due to the arisen need the Supreme Court of the Kyrgyz Republic studies court practice of hearing of cases about recognition of the property right to vehicles by courts of Batken Province for 2000-2003.
Studying of the cases considered Batken and Kadamzhaysky by district courts, Kyzyl-Kiysky and Sulyuktinsky city courts showed that citizens took a legal action, generally in view of refusal of territorial registering bodies of the state automobile inspection of the Ministry of Internal Affairs of the republic to register vehicles for the actual owner based on:
- non-presentations of documents of title on motor transport;
- not removals of motor transport from accounting in the place of the last registration in divisions of GAI, as a rule outside the republic;
- the expirations of the power of attorney on the right of control and the order of motor transport;
- lack of the documents confirming customs clearance of the vehicles imported into the republic, and also payment of receivable customs payments and taxes.
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