Additional review to the statement of claim for removing obstacles by demolishing an unauthorized building

 

 

Nauryzbay district of Almaty

judge Medetova A.M.

​Mkr. Shugila, 347/11

+7 (727) 333‒13‒55 +7 (727) 333‒13‒51

Defendant: A. K. O.

IIN:.

Almaty,......79 str., sq. 2

8 708 ....

Attorney-at-law Sarzhanov Galymzhan Turlybekovich

Law and Law Law Firm

INN 201240021767.

Republic of Kazakhstan, 050002, Almaty city,

79/71 Abylai Khan Avenue, office 304, Almaly district.

e-mail: info@zakonpravo.kz website: www.zakonpravo.kz

tel.: +7 708 578 57 58 / 8 727 978 57 55.

Plaintiff: M. K. A.

IIN:......

Address: Almaty,..... 79, sq. 3

Proxy representative: B. Z. M.

Phone: 8 777 ..

Additional review

to the statement of claim for removing obstacles by demolishing an unauthorized building

There is a civil case No. 7585-23-00-2/1655 in your proceedings, plaintiff M. K. A. (Hereinafter referred to as the civil plaintiff) defendant O. A. K. (Hereinafter referred to as the civil defendant), a claim for removing obstacles by demolishing an unauthorized building is being considered.

We disagree with the plaintiff's claim for the following reasons:

The defendant was recognized as the owner in accordance with the house and land purchase agreement dated January 31, 2013. The land plot is not listed as shared in the specified contract. The defendant lives with his family in the above-mentioned house.

In accordance with articles 6,25,26 of the Constitution of the Republic of Kazakhstan, public and private property are recognized and equally protected in the Republic of Kazakhstan. Housing is inviolable. Deprivation of housing without a court decision is not allowed. Citizens of the Republic of Kazakhstan may have any legally acquired property in private ownership and are guaranteed by law.

    The plaintiff, the city of Almaty, Karagaily microdistrict, ..... has been living with his family in 3 apartments in 3-apartment building No. 79, located at the address: since 1980. The total area of the land plot belonging to this house is 0.1390 hectares. In accordance with Article 209 of the Civil Code of the Republic of Kazakhstan and Article 53 of the Land Code of the Republic of Kazakhstan, the right of private ownership of Land is shared.

The documents establishing ownership submitted by the plaintiff to the court state that the right of private ownership of the land owned by the plaintiff is shared. All the documents for the property were received in 2009.

However, in the documents establishing the defendant's ownership, it is explicitly stated that the NGO State Corporation "Government for Citizens", according to the definition, the right of private property is private. In addition, the defendant's land management project (Land Management Project), the state act on private property rights, and the technical passport documents do not contain information on shared ownership, and the defendant's private property right is recognized as private.

           Since the plaintiff's apartment is located at the end of the courtyard, the exit to the street passes through the courtyard belonging to the 1,2 apartment. We believe that the arguments in favor of the fact that there is no other exit to the street are unfounded, because there is another way than through the land plots belonging to apartments 1 and 2. His argument is that the plaintiff may well go out onto the road behind the house.

              It can be established that due to the above-mentioned grounds, the plaintiff violates the defendant's rights to private land use.

In accordance with part 3 of Article 188 of the Civil Code of the Republic of Kazakhstan, the owner has the right to take any actions at his discretion with respect to his property, to dispose of it in possession, use and otherwise.

On 10/13/2023, at 11 a.m., they took part in an off-site court session, during the off-site court session, the plaintiff clearly saw that in addition to the defendant's land plot, there was an additional exit road where the plaintiff could drive onto an asphalt road at the back of his house, not the coastline. According to the plaintiff, the width of the exit behind his house is 1.5-2 meters between the barn next to the plaintiff's house. The specified words are 17.10.2023. At 15:30, Daniyar's neighbor, interviewed as a witness, confirmed our arguments, in which the witness brought Denmark to court that the distance between the plaintiff and his stable was 1.5-2 meters.  

In addition, all neighboring land plots were fenced on their own, and no one asked each other for permission during the fencing.

          According to article 8 of the Civil Procedure Code of the Republic of Kazakhstan, everyone has the right to apply to the court in accordance with the procedure established by this Code to protect their violated or disputed rights, freedoms or legitimate interests.

In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, during civil proceedings, the parties independently and independently of the court and other persons involved in the case choose their position, methods and means of its protection.

In accordance with article 15 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their rights and freedoms in all ways that do not contradict the law.

We believe that the plaintiff's claim to recover the costs of paying for the representative's assistance in the amount of 300,000 tenge in accordance with Article 113 of the CPC RK is illegal.

Since the materials of the civil case do not include a contract with a lawyer and a receipt for payment. In particular, according to paragraph 1 of Article 113 of the Civil Procedure Code of the Republic of Kazakhstan, the costs of paying for legal assistance are collected in the amount of the expenses actually incurred by the parties.

     In accordance with paragraph 2 of Article 35 of the Entrepreneurial Code, individuals who comply with one of the agreements are subject to mandatory registration with the tax authority as an individual entrepreneur.:

attracting employees to permanent work;12 obtaining annual income from entrepreneurial activities exceeding the minimum wage.

    As you can see, the activity of a legal consultant, at least, cannot be covered by an annual income agreement.because legal consultants earn 70,000 tenge per month.

At the same time, in accordance with paragraph 3 of paragraph 2 of Article 683 of the Tax Code of the Republic of Kazakhstan, a legal adviser does not have the right to apply special regimes (patent, simplified tax, fixed deduction) consulting services, activities in the field of law, justice and justice, the use of a simplified special regime for small businesses does not allow this. Therefore, a legal consultant can register his business activities in the general regime as an individual entrepreneur.

The Tax Committee also believes that it is more profitable for legal consultants to register as an individual entrepreneur in the general regime.:

Reply of the Chairman of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan to question No. 557332/1 dated July 19, 2019; Reply of the Chairman of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan dated March 29, 2019 No. 540654 dated March 14, 2019.

According to Article 113 of the Civil Procedure Code of the Republic of Kazakhstan, the court, at the request of the party in whose favor the decision was rendered, deducts from the other party the costs of paying for the assistance of a representative (several representatives) who participated in the process and was not in an employment relationship with this party, in the amount of the expenses actually incurred by the party.

The total amount of these expenses for property claims should not exceed ten percent of the satisfied portion of the claim. The amount of expenses for non-property claims is collected within reasonable limits, but should not exceed three hundred monthly calculation indices.

Based on this article, Zhaupker applied to the Law and Law Law Firm for legal assistance, having concluded contract No. 1808/23 and paid 300,000 tenge to the personal account of the office. The proof of this is the contract and receipt issued by the Caspi Pei application.

According to Article 166 of the Civil Procedure Code of the Republic of Kazakhstan, the defendant submits to the court a response to the statement of claim with attached documents refuting the arguments concerning the claim, as well as copies of the response and the documents attached to it.

In accordance with Article 166 of the CPC of the Republic of Kazakhstan, based on the above, it follows,

I ask for a court:

Civil plaintiff M. K. A. to leave the statement of claim in full – without satisfaction; 300,000 tenge paid for the assistance of a lawyer in favor of the plaintiff, the defendant – recovery.

With respect,

Lawyer: ________________/ G. T. Sarzhanov

                                                          "___"___________2023 the year

 

 

 

 

 

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