of December 18, 1992 No. 6
About application in court practice of the legislation on protection of honor, advantage and goodwill of physical persons and legal entities
The stipulated by the legislation measures directed to non-admission of distribution of the untrue data belittling honor, advantage, goodwill of physical persons and legal entities are effective remedy of protection of the personal non-property rights and the benefits.
For the purpose of uniform application of the legislation on protection of honor, advantage, goodwill of physical persons and legal entities, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:
1. Courts should mean that distribution of the data discrediting honor and advantage of the citizen or the organization means publication them in seals, the message on radio, television, with use of other mass media, statement the characteristics, public statements, statements addressed to the different organizations, officials or the message in other, including oral form to several persons or at least one person. The message of such data to only one person whom they concern cannot be recognized their distribution.
Such untrue data which belittle honor and advantage of the citizen or the organization in public opinion or opinion of certain citizens from the point of view of compliance with laws, the moral principles of society (for example, data on making of dishonest act, unworthy behavior in labor collective, in family are discrediting; the data discrediting production economic activity, reputation, etc.). At the same time requirements about confutation of the data containing the untrue criticism of shortcomings of work cannot be recognized reasonable the public place, collective, life.
Honor is public assessment of person, measure of its spiritual and social qualities.
Advantage - internal self-assessment person of own qualities, capabilities, outlooks, the social significance.
Goodwill - steady positive assessment business (production, professional) advantages of person public opinion.
2. By consideration of the civil cases initiated on the bases and according to the procedure provided by Articles 141, 143 of the Civil code of the Republic of Kazakhstan (further - group of companies), Articles 23 and 150 of the Code of civil procedure of the Republic of Kazakhstan (further - GPK) to courts it is necessary to find out with exhaustive completeness: whether the information about which confutation the claim is made whether they discredit honor and advantage of the citizen, reputation of the organization were spread, whether these data are true.
In case of establishment of discrepancy of validity of the data discrediting honor and advantage, the obligation on their confutation is assigned to the defendant irrespective of availability of his fault in distribution of these data. <*>
3. According to the procedure, stipulated in Article 23 GPK and Article 143 of group of companies, requirements about confutation of the data containing in judgments and sentences, resolutions of law enforcement agencies and other official documents for which appeal the law provides other procedure cannot be considered. <*>
4. According to Article 8 GPK the interested person have the right to judicial honor and dignity protection if in the publication surnames of particular persons, but from the text clearly are not specified about whom there is a speech, and also in that case when the damaging evidence is spread concerning the died member of his family or other close relative entering circle of legal heirs. <*>
5. If the damaging evidence is spread concerning the minor or person recognized in accordance with the established procedure incapacitated the claim for protection of his honor and advantage legal representatives (for example, guardians, custodians) or the prosecutor according to the procedure, provided by Article part three 54, Article 55, Article part four 148 GPK have the right to show. <*>
6. Proceeding from sense of Articles 9 and 143 of group of companies in case actions of person which extended the fabrications discrediting other person contain essential elements of offense, stipulated in Article 130 or article 131 of the Criminal Code of Kazakhstan, the victim has the right to take a legal action with the statement according to the procedure of criminal trial (article 408 of the Code of penal procedure of the Republic of Kazakhstan) about involvement of the guilty person to criminal liability and to make the claim for honor and dignity protection according to the procedure of civil legal proceedings.
Refusal of court in initiation of legal proceedings, removal accusatory and the verdict of not guilty or the termination of criminal case concerning person who spread the damaging evidence do not interfere with excitement of civil case. <*>
7. If the claim contains the requirement about confutation of the information spread in seal, other mass media (the message on radio, television, etc.), as the defendant the author and relevant organ of mass information (the editorial office, publishing house, etc.) to whom according to Item 2 of Article 143 of group of companies the court has the right to assign obligation to confute the data discrediting the claimant recognized untrue is attracted. In case of publication or other distribution of such data without designation of name of the author (for example, in the editorial article) defendant in case is the relevant organ of mass information.
In claims for confutation of the damaging evidence stated in office, household and other types of characteristics, defendants persons them signed, and the company, organization, the organization on behalf of which the characteristic is issued are recognized. <*>
8. According to Item 3 of Article 141 and Item 1 of Article 143 of group of companies the proof obligation that the spread information is true, is assigned to the defendant. The claimant shall prove only the fact of distribution of the data discrediting it by person to which the claim is made, at the same time he has the right to produce also the evidence of discrepancy of validity of the data discrediting his honor and advantage. If proofs are insufficient, the court has the right to suggest the parties to produce corroborating evidences or to request them on the initiative. <*>
9. If the data disputed by the claimant were reproduced by mass media from official reports, performances at meetings or the author's performances going to ether or received from news agencies, then, according to articles 49 and 50 GPK, courts can recruit in case in quality of the defendant, along with the editorial office of mass media, body or person which was source of such information. In this case the proof obligation that the spread information is true, is assigned to the specified body and person.
According to Article 143 of Civil Code the publication in seals or other message (on radio, television, etc.) about the judgment which recognized the spread information discrediting honor and advantage of person and untrue, it is performed by the same mass media which spread this information. Comments of mass media - defendants in case, the vessels contradicting conclusion, are inadmissible. If such comments are allowed, then the judgment is considered unexecuted.
The citizen or the organization has the right to make in court the claim at the same time to several bodies of mass media to both other bodies and persons who spread the information discrediting his honor and advantage and untrue (Article 49 GPK). <*>
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