of July 7, 2016 No. 6
About some questions of invalidity of transactions and application of effects of their invalidity by courts
For the purpose of uniform and correct application in court practice of some regulations of the legislation of the Republic of Kazakhstan on invalidity of transactions and application of effects of their invalidity the plenary session of the Supreme Court of the Republic of Kazakhstan
1. According to regulations of the Civil code of the Republic of Kazakhstan (further - group of companies) the transaction can be invalid on the bases, the established law, owing to recognition her that court (the debatable transaction) or irrespective of such recognition owing to direct specifying on its invalidity in the law (the insignificant transaction).
Requirements about recognition of the debatable transaction invalid, application of requirements about its effects can be shown by the interested person, proper state body or the prosecutor.
The negligibility of the transaction established by the law does not interfere with the interested person to require judicial recognition of invalidity of such transaction.
Requirement about application of effects of invalidity of the insignificant transaction can be imposed by any interested person irrespective of whether the requirement about recognition of the insignificant transaction invalid is declared.
The court has the right to apply effects of invalidity of the transaction on own initiative in the cases provided by Items 2, of 3, of 4, of 5, of 6, of the 7 and 8 Article 157-1 of group of companies.
2. According to Item 1 of Article 9 of group of companies recognition of the debatable transaction by court invalid and applications of effects of its invalidity, application of effects of invalidity of the insignificant transaction are one of methods of protection of the civil laws.
The disputes connected with protection of the civil laws by recognition of the transaction invalid are considered by courts with observance of rules of jurisdiction and cognizance of the cases established by the Code of civil procedure of the Republic of Kazakhstan (further - GPK).
3. If the claim is connected with the subsequent return of the property received according to the invalid transaction, the price of the claim is determined and specified in the action for declaration according to the subitem 13) of Article part one 104 GPK.
According to this provision of the law, on cases on recognition invalid the agreements connected with the subsequent return of all received property, the price of the claim is determined by market value of property on the date of presentation of the claim in court.
The price of the claim is determined and specified in the action for declaration according to the subitem 1) of Article part one 104 GPK if the claim is connected with cost recovery of the property which is subject to return, costs of use of property, the performed works or the rendered services in terms of money in case of impossibility of return of property in nature according to the invalid transaction.
In the specified cases the state fee from the filed a lawsuit actions for declaration about recognition invalid transactions is collected as from actions for declaration of property nature (the subitem 1) of Item 1 of article 610 of the Code of the Republic of Kazakhstan "About taxes and other obligatory payments in the budget" (Tax code)).
According to the action for nullity of the transaction which is not connected with return of property or with compensation of its cost, the state fee is collected as from actions for declaration of non-property nature (the subitem 7) of Item 1 of article 535 of the Tax Code).
If at stage of adoption of the claim for recognition of the transaction invalid the court determines that the requirement about application of effects of recognition of the transaction invalid is not specified in the action for declaration, then this circumstance cannot be the basis for refusal in adoption of the action for declaration or its return. Subitem regulations 3) of Article part one 152 GPK in this case are inapplicable as absence in the action for declaration of this requirement does not belong to the unremovable shortcoming attracting return of the action for declaration based on Article 152 GPK. The requirement about application of effects of invalidity of the transaction is specified by court at stage of preparation of case for legal proceedings.
4. According to Article 163 GPK at stage of preparation of case for legal proceedings the court shall specify the circumstances important for the correct permission of case, to determine from what legal relationship there was dispute and what provisions of the law are subject to application in case of permission of case.
5. In case of permission of question of invalidity of transactions and application of effects of their invalidity courts shall be guided by the legislation existing at the time of emergence of these legal relationship.
The regulatory legal act providing amendments to former procedure for regulation of the relations on the invalid transaction and application of effects of its invalidity is applied to the legal relationship which arose after its introduction in action. The exception is constituted by cases when the retroactive effect of regulatory legal act or its part is provided by him or the act of its introduction in action.
In case of the dispute resolution, following from the legal relationship which arose after March 10, 2017, courts apply regulations of group of companies in edition of the Law of the Republic of Kazakhstan of February 27, 2017 No. 49-VI "About modification and amendments in some legal acts of the Republic of Kazakhstan concerning enhancement of the civil, bank law and improvement of conditions for business activity".
6. By hearing of cases of this category courts need to recognize that owing to Article 147 of group of companies transactions the actions of citizens and legal entities directed to establishment, change or the termination of the civil laws and obligations are recognized.
Starting hearing of cases about recognition of transactions invalid and application of effects of their invalidity, the subject and the basis of the claim in which the claimant takes a legal action what circumstances important for case are established and what are not established what legal relationship of the parties, and depending on it to apply regulations of the substantive right which regulate disputable legal relationship shall determine courts, and based on these regulations to resolve the claim (Article part one 225 GPK).
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