of October 28, 2005 No. 4
About practice of application of the legislation on indemnification caused to life and health of citizens in case of liquidation of the legal entity owing to bankruptcy
For the purpose of uniform application by courts of the legislation on indemnification caused to life and health of citizens in case of liquidation of the legal entity owing to bankruptcy, the plenary session of the Supreme Court of the Republic of Kazakhstan DECIDES:
1. Draw the attention of courts that the amount and payment procedure in case of liquidation owing to bankruptcy of the legal entity recognized in accordance with the established procedure responsible for the harm done to life and health of citizens are determined by the Civil code of the Republic of Kazakhstan (further - group of companies) and the Law of the Republic of Kazakhstan of March 7, 2014 No. 176-V "About rehabilitation and bankruptcy" (further - the Law).
1-1. After completion of the period of capitalization of payments to the citizen of the Republic of Kazakhstan monthly payments according to the procedure, established by the Government of the Republic of Kazakhstan (item 4 of Article 945 of group of companies) are performed.
According to the Rules approved by the order of the Government of the Republic of Kazakhstan of May 25, 2011 No. 571, to persons having the right to monthly payments in that order it is necessary to provide copies of the judgment about recognition of the company by the bankrupt, about assignment of responsibility on payment of the capitalized payments on account of indemnification on the state, the register of requirements of creditors of the first priority approved by court. Verified copies listed documents upon the demand of persons stated above are provided by the court which considered case on recognition of the company by the bankrupt. Removal of the new judgment about assignment of responsibility on payment of the capitalized payments on the state after achievement of 70-year age by them is not required.
2. According to Item 3 of Article 944 of the Civil Code the citizens having the right to indemnification caused to the life and health having the right to demand from the legal entity declared bankrupt, the termination or early obligation fulfillment on indemnification by capitalization of the corresponding time payments.
At the same time the obligation of the legal entity responsible for damnification to make monthly and other additional payments on the bases and according to the procedure, established by Articles with 937 according to 944 groups of companies, it is replaced with the new obligation to pay to the injured person the capitalized amount one-timely. Such payment should be understood as compensation of damage suffered upon the demand of the victim.
3. According to article 102 of the Law determination of the amount of the paid compensation within insolvency proceedings of the legal entity is performed by capitalization of the corresponding time payments on the date of recognition of the debtor by the bankrupt which are subject to payment to the citizen before achievement of 70-year age by it, but at least in ten years. If the age of the citizen exceeds seventy years, the period of capitalization of the corresponding time payments constitutes ten years.
It is necessary to understand compensation of the earnings (income) or its part lost by the victim which it had as time payments or definitely could have before damage of health and which was paid by the responsible person monthly.
Other payments for indemnification established by the legislation (expenses on treatment, additional food, acquisition of drugs, prosthetics, foreign leaving, sanatorium treatment, acquisition of special vehicles and others) in case of capitalization are not considered.
The stipulated in Article 102 Laws, the amount of the capitalized payments (compensation) determined according to the procedure is not subject to indexation, and also review towards increase or reduction in connection with change of the group of disability established to the citizen.
4. Stipulated in Item 2 Articles 945 of group of companies capitalization of the corresponding payments in case of liquidation of the legal entity responsible for the harm done to life and health is obligatory.
In this regard the bankrupt managing director when forming registers of requirements of creditors shall capitalize monthly payments to all persons before which the liquidated legal entity was recognized in accordance with the established procedure responsible for damage suffered and which made the corresponding payments at the time of recognition by his bankrupt.
If during liquidating procedures the judgment the liquidated legal entity is acknowledged responsible for the harm done to the worker (in particular, the come to light occupational disease), then the amount of monthly payments of compensation of the lost earnings (income) is determined by the petition from the citizen before completion of the procedure of liquidation and their capitalization according to the procedure, the stipulated in Clause 102 Laws is made.
5. The capitalized payments join the bankrupt managing director in registers of requirements of creditors of the first priority and are satisfied at the expense of property of the debtor in first-priority procedure.
Registers of requirements of creditors of the first priority join also debt on monthly payments of the lost earnings (income) for previous periods if it was available or was established by the judgment at the time of recognition of the legal entity by the bankrupt.
6. In case the capitalized payments cannot be made by the bankrupt managing director in view of absence or insufficiency of property at the liquidated legal entity, citizens have the right to take a legal action according to Article 945 of group of companies with the statement for assignment of obligation on payment of the capitalized payments on the state.
Lump sum payment according to the petition from the citizen capitalized in the above payment procedure involves the termination in full of the obligation of the legal entity for the harm done to life and health.
7. Courts in determinations about completion of the procedure of bankruptcy for the purpose of ensuring payment of the capitalized payments need to specify the amount of unpaid capitalization.
If the list of names of creditors of the first priority is volume, then in determination of court only the total amount of the added and unpaid capitalization on the first priority with sending can be specified registers of requirements of creditors. The statement from registers of requirements of creditors for date of completion of liquidation of the legal entity signed by the bankrupt managing director, or properly the verified copy of the register, and determination of court about completion of the procedure of bankruptcy are the documents confirming the citizen's right to the appeal to the state with the requirement about payment of the capitalized payments.
8. Assignment of obligation on payment of the capitalized payments on the state owing to absence or insufficiency of property at the liquidated legal entity is one of methods of providing the citizen's rights to social security guaranteed by article 28 of the Constitution of the Republic of Kazakhstan in case of disease, disability, loss of the supporter. Assuming such obligation, the state is not legal successor of the liquidated legal entity according to all other obligations.
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