NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of June 28, 2002 No. 13

About court practice on cases on establishment of the facts having legal value

For the purpose of the correct and uniform application of the legislation by consideration of civil cases on establishment of the facts having legal value, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:

1. Draw the attention of courts to what put about establishment of the facts having legal value are initiated according to the petition from citizens, the organizations, and also other persons who under the law have the right to take a legal action in protection of interests of other persons (Article 55, 62 Codes of civil procedure of the Republic of Kazakhstan (further - GPK)) and are characterized by possible availability of dispute on the fact, but unconditional lack of dispute on the right. If the applicant submits applications for establishment of several facts having legal value, then courts have the right to consider these requirements in one production.

2. Courts can adopt the statement for establishment of the facts having legal value and to consider such cases according to the procedure of special proceeding if:

according to the law (Article part one 305 GPK) such facts generate legal effects (origin, change or the termination of personal or property rights of citizens or the organizations);

the applicant has no other opportunity to receive or recover the proper documents certifying the fact (Article 306 GPK);

the current legislation does not provide other (extrajudicial) procedure for their establishment (Article 306 GPK);

factual determination does not contact the subsequent dispute resolution about the right, subordinated to court (Article part two 304 GPK).

3. During preparation of case for legal proceedings the court needs to find out from the applicant availability of legal interest in factual determination, to demand from the applicant the written proofs testimonial of impossibility of obtaining or recovery of the proper document certifying this fact.

It is necessary to understand as impossibility of receipt of the document or lack of order of registration of this or that fact (for example, stay in dependence), or non-compliance with order of registration of the fact and impossibility to resort to it in these conditions (for example, death fact, the fact of recognition of paternity when the child's parents, without having registered scrap after its birth, did not make timely correction to the birth record of the child and it it is impossible to make owing to the death of the father). Also it is necessary to understand cases when the documents confirming the fact are available as impossibility of receipt of the document, however in them the mistakes or inaccuracies depriving the document of evidentiary value which cannot be corrected are made (for example, the act of accident).

It is necessary to understand absence at the corresponding person of opportunity to issue the duplicate of the necessary document owing to its loss or destruction as impossibility of recovery of the lost document.

Courts should delimit pre-judicial procedure for the dispute resolution from extrajudicial procedure for establishment of dispositive fact.

It is necessary to understand the procedure provided by legal acts in case of which there is opportunity as extrajudicial procedure for factual determination, by the appeal to state body, the organization, to the other person to receive or recover the proper documents certifying dispositive fact.

If the current legislation provides other (extrajudicial) procedure for their establishment, then by court according to the subitem 1) to part one of Article of 151 GPK reception of an application shall be refused.

In case of wrong adoption of the statement and initiation of proceedings it is subject to the termination based on the subitem 1) of Article 277 GPK.

3-1. In case of permission of question of availability or lack of dispute on the right courts according to the procedure of preparation of case for legal proceedings should find out, for what purpose the applicant needs establishment of dispositive fact what legal relationship can arise in case of its establishment whether there are other persons who can become participants of these legal relationship.

Availability of such persons who are wishing or entered the corresponding legal relationship can testify to availability of dispute on the right.

If when making actions for preparation of case for legal proceedings, or in case of substantive prosecution the judge determines that there is dispute on the right subordinated to court, it shall take out determination about leaving of the statement without consideration based on the subitem 13) of Article 279 GPK and explain to the applicant and other interested persons their right to appeal to the court according to the procedure of claim production.

Establishment of availability or lack of dispute on the right is necessary for differentiation of type of civil legal proceedings for the purpose of the correct permission of case.

Cannot be considered as fundamental breach of regulations of procedural law cases when the court in the absence of dispute on the right took out wrong determination about leaving of the statement without consideration and recommended to the applicant to take a legal action according to the procedure of claim production.

The dispute on the right cannot arise in case of establishment of dispositive fact of registration of the birth, adoption (adoption), scrap, divorce and death (the subitem 3) of Article part two 305 GPK), accessories of documents of title (except for military documents, the passport, the identity certificate and certificates granted by authorized bodies) to person, the name, middle name or surname of which specified in the document do not match with name, middle name or surname of this person according to the passport or the identity certificate, or the certificate of birth (the subitem 5) of Article part two 305 GPK), accident if it cannot be confirmed in other procedure (the subitem 7) to Article part two 305 GPK), the death of person in certain time under certain circumstances in case of refusal of bodies of civil registration in registration of death (the subitem 8) of Article part two 305 GPK).

4. The fact of the related relations according to the subitem 1) of Article part two 305 GPK is determined judicially only when relationship degree 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, registration of the right to benefit on the occasion of loss of the supporter.

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info