of July 25, 1996 No. 7
About practice of application by courts of the consumer protection law
Noting need of explanation of the questions which arose at courts in practice of application of the consumer protection law, and for the purpose of ensuring effective judicial consumer protection the plenary session of the Supreme Court of the Republic of Kazakhstan decides:
1. The law of the Republic of Kazakhstan of May 4, 2010 No. 274-IV "About consumer protection" (further – the Law) determines legal, economic and social basis of consumer protection, and also measure for providing consumers with safe and high-quality goods (works, services) and governs the relations between consumers – physical persons, that is citizens of the Republic of Kazakhstan, foreigners and stateless persons (Article 12 of the Civil code of the Republic of Kazakhstan (further – group of companies), acquiring and using goods, ordering works and services for personal domestic needs, or having such intentions, and sellers of goods, or their producers, and also contractors and services irrespective of patterns of ownership and formation of legal entity, including individual entrepreneurs (Article 19 of group of companies), and is applied to the legal relationship which arose or continuing after its introduction in action (Articles 4, of 383 groups of companies).
The rights of consumers in spheres of financial, social, medical, tourist and other services, and also questions of their protection are established by the laws of the Republic of Kazakhstan (Item 2 of article 2 of the Law).
2. The relations with participation of consumers, their rights and obligations, procedure for realization and protection of these rights, and also the rights and obligations of sellers, manufacturers, contractors and services except the Law are regulated by the Civil code and not contradicting it others legislative and regulatory legal acts, and also agreements and other transactions, stipulated by the legislation or not contradicting it.
3. Regulatory legal acts of the Government of the Republic of Kazakhstan, the ministries and departments, local representative and executive bodies cannot limit the rights of consumers and reduce guarantees of their protection in comparison established by the Constitution of the Republic of Kazakhstan, the Civil Code and the Law.
Courts should request and study regulatory legal acts of the central executive bodies and local executive and representative bodies and, in case of contents in them of the rules using preferential (exclusive) provision of sellers, manufacturers and contractors, or contradicting the marine life protection act of the rights of consumers, to mean that such acts are invalid from the moment of their acceptance and are not subject to application Item 5 of Article 3 of group of companies).
In case of contradiction of decisions of maslikhats and akims to legal acts, the court shall resolve dispute based on legal acts.
4. According to general rules (Article 29 GPK) claims to physical person are made in the place of his residence and to the legal entity – in the place of its stay. At the same time at the choice of the claimant (Article 30 part nine of GPK) claims for consumer protection can be shown at the place of residence of the claimant or on detention center or agreement performances therefore in case of adoption of the action for declaration, courts shall consider the claimant's right to the choice of the place of consideration of the case.
5. Article 42 of the Law establishes preliminary extrajudicial procedure for permission of requirements of public organizations of consumers. If the specified organizations do not observe such procedure for the dispute resolution, and such opportunity is not lost, the judge according to the subitem 1) of Article part one 152 GPK returns the application.
The law for the consumer does not provide extrajudicial procedure for permission of requirements.
The claims directed by public associations of consumers, associations (unions) in consumer interests for consideration in court are not assessed with the state fee (the subitem 11) of article 616 of the Code of the Republic of Kazakhstan "About taxes and other obligatory payments in the budget" (Tax code), article 42 of the Law).
At the same time consumers in case of independent appeal to the court are not exempted from payment of the national duty in the claims connected with violation of their rights.
In these cases compensation to the state and the parties of court costs, their distribution between the parties is performed by the rules established by Articles 109, of 116, 117 GPK.
6. According to Articles 2, 10 Laws of the Republic of Kazakhstan of May 31, 1996 No. 3-I "About public associations" (further - the Law on public associations) public associations of consumers, being public non-profit organizations, are effective with the charters accepted by the constituent assembly convoked at the initiative of at least 10 members of society and are legal entities.
On the cases initiated by public associations of consumers or their unions (associations), courts it is necessary to find out their status, subject and the purposes of activities, and also legal capacity, meaning that according to article 10 of the Law on public associations their legal capacity arises from the moment of state registration or re-registration, their accounting registration of structural divisions (branches and representations).
7. Public organizations of consumers have the right to make independently the claim in court for recognition of actions of the seller, manufacturer (their representatives), the contractor who are legal entities and also governing body illegal concerning uncertain circle of consumers (collective suit) and the termination of these actions. Cases on such claims according to Article 27 GPK are jurisdictional to specialized interdistrict economic freighters.
8. In case of application of article 21 of the Law courts should be guided by Item 3 of Article 141 of group of companies on protection of the non-property rights irrespective of fault of person which violated the right.
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