of September 24, 1999 No. 16
About some questions arising in court practice in connection with application of the Civil code
Due to the enforcement of the Civil code of the Republic of Uzbekistan, and also considering that courts had questions requiring permission, the Plenum of the Supreme Court of the Republic of Uzbekistan decides to make the following explanations:
1. Draw the attention of courts that the correct permission of the cases connected using the Civil code is important in ensuring strict observance of the legislation, protection of the state interests and the rights of citizens protected by the law.
2. Courts in case of permission of civil cases shall proceed from the main beginnings of the civil legislation establishing equality of participants of the relations regulated by it, security of property, freedom of the agreement, inadmissibility of any intervention someone in private affairs, need of free implementation of the civil laws, ensuring recovery of the violated rights, their judicial protection.
3. Article 110 of group of companies provides cases when the notarial certificate of transactions is obligatory. The transactions which are not conforming to requirements of the law or other legal acts and also the bargains concluded by citizens bypassing the existing procedure are insignificant and do not need judicial recognition by their invalid.
4. According to the p. 2 of Art. 488 of group of companies the sales agreement of the apartment house, apartment, part of the apartment house or apartment is subject to the notarial certificate and state registration. According to Art. 112 of h 2 groups of companies completion of notarial form by the judgment in the presence of strictly certain conditions which courts shall consider, in particular, is allowed if one party evades from notarial certification. And the main condition is, first of all, legality of the committed transaction.
In case on such claims it is necessary to recruit housing bodies, local authorities of the government, persons protected by the law whose rights and interests are infringed or broken, and in case of the death of one of participants of the transaction - his heirs.
5. Courts should mean that complete or partial execution of the transaction of one of the parties can be taken into account in the presence of written proofs. The validity of the transaction of the purchase and sale fully or partially performed regarding transfer to the seller of cost of the apartment or the house cannot be confirmed with testimonies of witnesses. According to Article 74 GPK of the fact of the case which under the law shall be confirmed with certain evidentiary facts cannot be confirmed by any other evidentiary facts.
In case of the dispute resolution the court shall make sure of authenticity of the written proofs (not certified agreement, the receipt) provided by the concerned party in confirmation of the transaction. In irreducible cases (for example, in case of the death of the former owner or impossibility of establishment of its location) the court shall resolve issue of feasibility of purpose of judicial handwriting examination.
Recognizing valid the transaction which is performed partially, the court needs also to resolve issue concerning execution of the rest of the transaction and collection of sum of money, and also the corresponding amount of the state fee of the income of the state.
10. Ceased to be valid
11. In case of the dispute resolution about acquisition of property right based on Art. 187 of group of companies courts should mean that the acquisitive prescription extends to cases of the actual groundless possession by someone else's property. Availability at the owner of any legal ground of ownership, for example, of the long-term agreement of lease, excludes action of acquisitive prescription.
12. Explain to courts that for acquisition of property right to thing on prescription of actual possession it is necessary to have it in ownership honesty (that is the actual owner shall not be, for example, the thief or the other person, intentional the taken control someone else's property without volition of his owner). Such ownership shall be open, obvious to all other persons, and the owner treats the corresponding thing as to own (meaning not only operation, but also necessary measures for its maintenance in proper condition). Ownership also shall be continuous during the terms established by the law (by the time of actual possession owing to specifying of the p. 4 of Art. 187 of group of companies it is also possible to attach time during which that whose legal successor is person owned this thing, referring to acquisitive prescription, for example his testator or the legal entity whose of structure it was allocated then legal litsovladelets).
Only in case of observance of all three listed conditions the acquisitive prescription can become the basis (title) of the property right of the actual owner (p.1 to Art. 187 of group of companies).
13. Courts should mean that according to Art. 259 of group of companies obligation fulfillment can be provided with penalty, pledge, deduction of property of the debtor, the guarantee, guarantee, deposit and other methods, stipulated by the legislation or the agreement.
14. Owing to Art. 264 of group of companies pledge represents the additional obligation which is completely depending on principal obligation and with its termination also stops. However recognition judicially invalid agreements of pledge is not the basis for the termination of primary obligation.
15. Essential terms of the contract about pledge are the subject of pledge and its assessment, being, the size and completion date of the obligation provided with pledge and also condition about what of the parties (the pledger or the pawnbroker) has the enclosed property (p.1 Art. 271 of group of companies). If by the parties it is not reached the agreement at least on one of the called conditions or the corresponding condition in the agreement is absent, the pledge agreement cannot be considered as the prisoner.
16. In case of the dispute resolution, connected with pledge of personal estate or the rights to property, follow to consider that such agreement is subject to the notarial certificate only in cases when the agreement provided with pledge according to the p. 2 of the Art. of group of companies be signed in notarial form (the p. 3 of Art. 271 of group of companies).
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