Cases on the establishment of facts of legal importance
State duty:
50 percent of the MCI is for establishing one fact.
Special proceedings are understood as the procedure for the consideration of indisputable cases regulated by the norms of civil procedural law, in order to create conditions for interested persons to exercise their personal or non-property rights or to confirm the existence (absence) of an indisputable subjective right unilaterally.
The difference between special proceedings and claim proceedings is that there is no dispute about the law.
The purpose of special proceedings is not to resolve a dispute over law, but to eliminate existing uncertainty regarding a wide variety of circumstances, actions and events.
Cases of special production are characterized by a specific subject composition. There are no parties (plaintiff, defendant) in this proceeding, and there are no third parties.
Applications for the establishment of facts of legal significance containing simultaneously a combination of the following circumstances may be accepted for judicial review:
- according to the law, such facts give rise to legal consequences.;
- the establishment of the fact is not associated with the subsequent resolution of the dispute by the court.;
- the applicant has no other way to obtain or restore documents certifying a fact of legal significance.;
- the legislation does not provide for a different (non-judicial) procedure for their establishment.
The CPC provides an approximate list of legal facts that can be established in court (Article 305 of the CPC).
Paragraph 3 of the normative resolution of the Supreme Court "On Judicial Practice in cases of establishing facts of legal significance" clarifies that when accepting an application, the court must clarify the applicant's legal interest in establishing the fact, require the applicant to provide written evidence indicating the impossibility of obtaining or restoring a proper document certifying this fact.
The inability to obtain a document should be understood as either the absence of a procedure for registering a fact (for example, being dependent), or non-compliance with the procedure for registering a fact and the inability to resort to it in these conditions (for example, the fact of death, the fact of recognition of paternity in cases where the child's parents, not having registered the marriage after his birth, we made timely corrections to the birth record of the child and this cannot be done due to the death of the father). The inability to obtain a document should also be understood as cases where there are documents confirming the fact, but they contain errors or inaccuracies that deprive the document of evidentiary value, which cannot be corrected (for example, an accident report).
The inability to recover a lost document should be understood as the inability of the relevant authority to issue a duplicate of the required document due to its loss or destruction.
Jurisdiction.
The application is submitted to the court at the applicant's place of residence, with the exception of establishing the existence of documents confirming the ownership, use and (or) disposal of immovable property. The specified fact is established in court at the location of the immovable property.
Preparation of the case for trial.
During the preparation, the judge must find out the circle of people who may be interested in resolving the case.
The preparation of the case for trial by the judge is carried out within 10 working days from the date of acceptance of the application to the court. An extension of this period is not allowed (Article 303 of the CPC).
The order of consideration.
Cases concerning the establishment of facts of legal importance are considered in a special procedure.
Cases of special proceedings are considered and resolved by the court within up to one month from the date of completion of the preparation of the case for trial (part two of Article 183 of the CPC).
Persons involved in the case.
Cases of this category are considered in special proceedings with the participation of the applicant and interested persons.
An applicant in a special proceeding may not be any person, but only those citizens and legal entities whose rights or legally protected interests can be protected by resolving the case in a special proceeding.
Interested parties are citizens and legal entities whose rights and interests may be affected as a result of satisfying the applicant's request.,
Interested parties may include:- persons whose relationship with the applicant depends on the fact to be established in a special proceeding;- relatives in establishing the facts for the exercise of inheritance rights, etc.;- organizations and institutions in which the applicant intends to use the court decision (for example, pension fund, military enlistment office, bank); - organizations and institutions that are unable to issue a duplicate document, which is why the citizen went to court (for example, the RAGS authorities, notary). The interested persons enjoy all the procedural rights of the persons participating in the case.The involvement of interested citizens and organizations in the case, clarifying their attitude to the applicant's request is the duty of the court, and its violation is the basis for the cancellation of the judicial act.The court has the right, on its own initiative, to involve persons interested in the case in order to establish the correctness of the claim and the absence of a dispute about the law.
Since cases of establishing legal facts are indisputable and are considered in a special procedure, no mediation agreement can be concluded in cases of this category.
However, there is a single fact that the courts have approved a mediation agreement in the case of establishing a legal fact.
Example. K. applied to the court to establish the acceptance of the inheritance, stating that on February 27, 2008, her mother S. died. After her death, the inheritance in the form of an apartment was opened. The applicant, like her brothers M. and Sm., is the first-line heir. K. did not apply to a notary for a certificate of inheritance, believing that she had actually accepted the inheritance, since she had not renounced it, and lived in an apartment until 2009, taking possession of the inheritance property.
The court's ruling approved the mediation dispute settlement agreement concluded between K. and M.'s stakeholders, See, in which M. agreed with the applicant's claim.
In this case, the mediation agreement was unlawfully approved by the court, since K. She asked the court to establish the legal fact of accepting the inheritance, which presupposes the indisputability of the stated claims.
There are cases of approval of mediation agreements on claims for restoring the deadline for accepting inheritance and extending the deadline for refusing to accept inheritance. According to the notaries, according to the above-mentioned requirements, mediation agreements cannot be concluded, since the establishment of facts of legal significance is carried out within the framework of a special procedure.
Meanwhile, in accordance with paragraph 12 of the regulatory decree of the Supreme Court "On certain issues of the application of inheritance legislation by courts", an application for the restoration of the time limit for accepting an inheritance is subject to consideration in a lawsuit.
Accordingly, by analogy, cases concerning applications for an extension of the period for refusal to accept inheritance are also considered in the order of claim proceedings, since consideration of these claims may affect the interests of other heirs (including the state, in the absence of heirs according to the will and according to the law).
The judicial review of this issue is related to a dispute over the right, since there is no consent from other heirs to the applicant's (heir's) refusal to accept the inheritance (including in favor of other specific persons), beyond the time limit established by law.
Features of proof
The following facts must be proven in all categories of cases:
- evidence confirming the existence of this legal fact (documents, letters, witness statements, etc.);
- certificates from various authorities (registry offices, RAGS, archives, etc.) about the inability to obtain or restore proper documents certifying a legal fact;
- evidence confirming the legal purpose of establishing this fact.
The following facts are included in the subject of proving the establishment of kinship relations between persons:
1) the existence of a family relationship depends on the norms of substantive law and the purpose that the applicant indicates in his application;
2) the purpose of establishing the fact of kinship,
3) the impossibility of establishing this fact in any other way than judicial;
4) there is no dispute about the law.
The fact of kinship (subparagraph 1) of the second part of Article 305 of the CPC) is established in court only in cases where the degree of kinship directly generates legal consequences, for example, if the establishment of such a fact is necessary for the applicant to obtain a certificate of inheritance or registration of the right to receive survivor's benefits.
In the decision on establishing the fact of kinship, the court must indicate the degree of kinship between the applicant and the relevant person.
The fact of family relations cannot be established when the applicant's appeal to the court is caused by the presence of incorrect entries in the acts of civil status. Such applications may be considered by the court in accordance with the procedure provided for by the chapter of the CPC (paragraph 4 of the normative resolution of the Supreme Court "On judicial Practice in cases of establishing facts of legal significance").
The following facts are included in the subject of proving that a dependent person is:
1) the establishment of the fact that a person has received permanent assistance from the deceased, if this assistance was the main source of livelihood;
2) the applicant's salary, stipend, pension and its ratio to the assistance provided;
3) disability of the applicant;
4) the inability to establish the fact that a dependent person is located through the relevant authorities;
5) the purpose of establishing the fact of finding a dependent person.
Courts should keep in mind that the establishment of the facts of a dependent person (subparagraph 2) of the second part of Article 305 of the CPC) is of legal importance for obtaining inheritance (Article 1068 of the Civil Code) or survivor's benefits (Article 940 of the Civil Code), and in other cases provided for by law.
At the same time, it should be borne in mind that in cases where the applicant had earnings, received a pension, scholarship, etc., it is necessary to find out whether the assistance from the person providing the maintenance was a permanent and main source of livelihood.
Only disabled family members of the deceased who were dependent on him have the right to receive survivor's benefits.
In order to establish the fact of being dependent in order to formalize the right to inheritance according to the law, it is necessary that the applicant was unable to work by the day of the testator's death, lived with him and was dependent on him for at least a year before his death (paragraph 1 of Article 1068 of the Civil Code).
In order to establish the fact of dependent persons belonging to the number of heirs by law, in order to inherit property together with the heirs of the queue that is called for inheritance, it is necessary that the person concerned be incapacitated and be dependent on him for at least a year before the death of the testator (paragraph 2 of Article 1068GK) (paragraph 5 of the normative resolution of the Supreme The Law of the Supreme Court "On Judicial practice in cases of establishing facts of legal significance").
When considering cases on establishing the legal facts of the location of persons dependent on the testator, the courts should keep in mind the following.
According to the law, heirs also include citizens who are not included in the circle of heirs specified in Articles 1061-1068 of the Civil Code, but by the day of the opening of the inheritance they were unable to work and were dependent on and lived with the testator for at least one year before the death of the testator. If there are other heirs, they inherit together and on an equal basis with the heirs of the queue that is called for inheritance. Disabled dependents of the testator have the right to receive a share in the opened inheritance if they were unable to work at the time of the opening of the inheritance and were dependent on him for at least a year before the death of the testator.
Disabled persons who are legally considered heirs, specified in Articles 1062-1064 of the Civil Code, inherit together and on an equal basis with the heirs of the queue that is called for inheritance, regardless of whether they lived together with the testator or not.
Disabled persons who are legally considered heirs and are not included in the circle of heirs specified in Articles 1062-1064 of the Civil Code inherit together and on an equal basis with the heirs of the line that is called upon to inherit if they lived together with the testator. In the absence of other legal heirs, the testator's disabled dependents, who are not legally included in the circle of heirs, but who lived together with the testator, inherit independently as heirs of the eighth stage.
According to subparagraph 15) of the normative resolution of the Supreme Court "On certain issues of the application of inheritance legislation by courts", the testator's disabled dependents in accordance with Article 13 of the Law "On State Social Benefits for Disability, Loss of Breadwinner and age in the Republic of Kazakhstan" include: persons under the age of eighteen; women over fifty-eight men over sixty-three years old and men with disabilities of groups I, II and III; persons who have reached the age of eighteen and older, who study full-time at educational institutions before graduation, but not older than twenty-three years.
Disabled persons who were fully supported by the testator or who received such assistance from the testator as was their main and permanent source of livelihood should be considered as dependent on the testator. Individual cases of financial assistance provided by the testator to the heir cannot serve as proof of the fact of dependency.
As a rule, applicants who are relatives of the deceased apply to the court to receive benefits, insurance payments, inheritance; military personnel – to receive benefits when receiving housing, to pay the cost of rental housing.
The subject of proving the fact of registration of birth, adoption, marriage, divorce and death includes the following facts:
1) the existence of the fact of registration;
2) the registry office has not preserved the relevant record and the registry office has refused to restore such record, or the fact of registration of birth, adoption, marriage, divorce and death can be restored only on the basis of a court decision.;
3) the purpose of establishing the fact of registration of birth, adoption, marriage, divorce and death;
4) there is no dispute about the law.
When considering cases on establishing the facts provided for in subparagraph 3 of part two of Article 305 of the CPC, it should be borne in mind that the court does not establish the events themselves, but the fact of their registration with the relevant authorities.
Such cases are subject to review if such a record has not been preserved in the civil registration authorities and the relevant archives and its restoration is refused.
Cases on establishing the fact of being in an actual marital relationship in accordance with this paragraph cannot be considered (paragraph 6 of the normative resolution of the Supreme Court "On Judicial Practice in cases of establishing facts of legal significance").
The subject of proof of the fact of recognition of paternity should include the following circumstances:
1) the death of a person who recognized himself as the father of the child;
2) the time of the child's birth,
3) the absence of a registered marriage between the child's mother and the alleged father;
4) if the child was born before October 1, 1968, it is necessary to establish an additional circumstance – that the child was dependent on the deceased at the time of his death or earlier.;
5) the purpose of establishing the fact (obtaining a certificate of inheritance, registration of a survivor's pension, etc.);
6) there is no dispute about the law.
7) other circumstances.
This fact (subparagraph 4) of the second part of Article 305 of the CPC) can be established by the court both in the case when the child was dependent on the person at the time of death, and earlier if this person recognized himself as his father.
Such a fact, taking into account specific circumstances, may be established by a court in respect of a child born after the death of a person who, during the mother's pregnancy, recognized himself as the father of the unborn child.
When considering a case in court, it should be taken into account that the establishment of the fact of recognition of paternity may be aimed not only at what the applicant indicates, for example, the receipt of the deceased's inheritance by the child, but also the subsequent possibility of receiving a pension or other social benefit.
To prove the fact that title documents (with the exception of military documents, passports, identity cards and certificates issued by civil registration authorities) belong to a person whose first name, patronymic or surname indicated in the document does not match the first name, patronymic or surname of this person according to the passport or identity card, or the certificate of The birth includes:
1) the fact that the document belongs to a specific person;
2) evidence that the document is legally binding,
3) the impossibility of making changes to the title document by the body or organization that issued this document;
4) the purpose of establishing the fact of ownership of the title document;
5) there is no dispute about the law.
According to the requirements for establishing the fact that title documents belong to a person whose first name, patronymic or surname indicated in the document do not match the first name, patronymic or surname of this person on a passport or identity card or birth certificate (subparagraph 5) of the second part of Article 305 of the CPC) at the stage of preparing the case for trial, the courts must require The applicant is required to provide evidence that the title document belongs to him and the organization that issued it is unable to make appropriate corrections to it.
Courts do not have the right to establish the fact that military documents, passports, identity cards and certificates issued by civil registration authorities belong to a particular person.
At the same time, it should be borne in mind that in connection with the liquidation of the USSR and its organs, the courts have the right to establish the facts of certificates belonging to orders and medals to a person whose name, patronymic or surname indicated in these documents do not match the name, patronymic or surname of this person on a passport or identity card, or a birth certificate. At the same time, the decision to establish such facts must be based on a body of evidence reliably attesting to the identity of such documents to the applicant (paragraph 7 of NP No. 13 dated June 28, 2002).
On the establishment of the facts of the existence of documents confirming the possession, use and (or) disposal of immovable property, if the applicant had a title document on the ownership of the property, but it is lost, and this fact cannot be established out of court (subparagraph 6) of the second part of Article 305 of the CPC).
When considering such cases, the court establishes only the fact of the existence of documents confirming the ownership of the applicant's property, and not his ownership right.
The facts of ownership of an unauthorized building that has not been put into operation, as well as a building registered in another name, are not subject to court determination.
The facts of ownership, use and (or) disposal of motor vehicles and any other property acquired under a transaction not executed in accordance with the law also cannot be established. In this case, the applicant has the right to apply to the court with a claim for recognition of ownership rights or recognition of the transaction on general grounds.
The subject of the proof of establishing the fact of an accident, if it cannot be confirmed in another manner in the case, includes:
1) the existence of an accident;
2) the impossibility of establishing the fact of an accident out of court;
3) the fact that the accident report was not drawn up and it is currently impossible to draw it up, or the report was drawn up, but later lost and it cannot be restored out of court, or an error was made during the preparation of the report that prevents the recognition of the fact of the accident, and it is not possible to correct the error out of court.
If there are disagreements about the investigation, registration, accounting of an industrial accident, they are resolved either administratively or in court (Chapter 25 of the CPC (challenging decisions, actions (inaction) of state authorities, local governments, officials, state and municipal employees));
4) the existence of a legal purpose for establishing the fact of an accident (receiving a disability pension due to an occupational disease, etc.);
5) there is no dispute about the law.
The subject of proving the fact of a person's death at a certain time and under certain circumstances, in the event of a refusal by the civil registration authorities to register death, includes the following facts:
1) death of a person at a certain time and under certain circumstances;
2) a preliminary appeal to the registry office to register this fact;
3) the refusal of the registry office to register the death of a person;
4) the legal purpose of establishing the fact.
In accordance with Article 268 of the Marriage and Family Code, the basis for State registration of death is: 1) a document of the prescribed form of death issued by a medical organization, 2) a court decision that has entered into legal force to establish the fact of death or declare the person deceased.
At the stage of accepting an application for production, courts must require applicants to have a refusal by the registry office to register the death event. In addition, the decision to grant an application must be based on evidence that reliably attests to the death of a person at a certain time and under certain circumstances.
The decision to grant an application must be based on evidence that reliably attests to the death of a person at a certain time and under certain circumstances (paragraph 10 of the regulatory decree of the Supreme Court "On Judicial Practice in cases of establishing facts of legal significance").
The case of establishing the fact of acceptance of the inheritance and the place of opening the inheritance.
As a rule, other heirs who are called upon to inherit (heirs of the same queue) act as interested parties. In case of their absence, the Department of Justice or the notary chamber (a specific notary), as well as state bodies authorized to manage housing and communal services (finances), may be involved as an interested person.
In accordance with subparagraph 9) of the second part of Article 305 of the CPC, the court considers cases on establishing the fact of acceptance of inheritance and the place of opening of inheritance, if the person performing notarial acts cannot issue a certificate of inheritance rights to the applicant due to the absence or insufficiency of relevant documents necessary to confirm the fact of taking possession of the inheritance property.
According to paragraph 5 of the normative resolution of the Supreme Court "On certain issues of the application of inheritance legislation by courts", the actual acceptance of inheritance is understood to mean the actions of the heir, which indicate that he takes possession and uses the latter's property after the death of the testator, the implementation of actions to maintain and protect his property, the payment of his debts and taxes related to the inherited property., or receiving payments due to the testator, property values that are subject to inclusion in the estate.
Thus, the proof of the fact of acceptance of the inheritance is the commission of one of the above actions by the heir.
The subject of the evidence includes:
- the fact of the actual entry into the inheritance, depending on the order of entry into the inheritance;
- failure by the notary authority to issue a certificate of inheritance rights to the applicant due to the absence or insufficiency of the documents required for this.
The need to establish the fact of acceptance of an inheritance in court arises in most cases when the interested person has missed the deadline established by civil law for accepting an inheritance, or in other cases when a notary cannot issue a certificate of inheritance.
The requirement to establish a legal fact is not limited to the statute of limitations.
The statement on the establishment of the fact of acceptance of the inheritance must specify the circumstances of the actual acceptance of the inheritance, the reasons for the impossibility of establishing the sought-after fact in a notarial manner, the purpose of establishing this fact, and the required legal fact must be clearly stated in the operative part of the statement.
When resolving cases in this category, the court should correctly establish the circumstances relevant to the case.:
- is the applicant the heir according to the law of the queue that is called for inheritance;
- are there any legal grounds preventing the registration of the applicant's inheritance rights;
- is there no dispute about the right to inheritance between the applicant and other heirs;
- has the possibility of extending the deadline for accepting the inheritance been lost;
- what hereditary property and under what circumstances came into the possession of the applicant.
In order to properly consider the case at the preparatory stage, it is necessary to require a number of written evidence, namely, to request the following information from the notary at the place of opening the inheritance:
- has an inheritance case been opened after the death of a citizen;
- who submitted applications for acceptance of inheritance or renunciation of inheritance within six months after the death of a citizen;
- have there been applications from other persons who were not considered by the notary as heirs;
- is there any information about other persons called upon to inherit;
- what actions were performed by the notary.
Failure to receive this information may lead to the fact that, according to the rules of special proceedings, legal facts will be established, while in reality there may be a dispute about the law.
The court's decision is the basis for applying to a notary for a certificate of inheritance.
If the person has actually accepted the inheritance, then there is no need to restore the deadline for accepting the inheritance, since one requirement excludes the other.
It should be noted that notaries must issue a certificate of inheritance, provided that the heir has actually accepted the inheritance, and after a six-month period.
Note.
The list of facts on which the emergence, modification or termination of personal or property rights of citizens and organizations depends, given in Article 305 of the CPC, is not exhaustive.
The courts have the right to establish other facts of legal significance, for example, the establishment of the fact of residence at a certain time in a certain area, the presence of a person in a special settlement, as a result of the use of repression, the fact of refusal to accept inheritance.
For example, according to Government Decree No. 819 of August 25, 2006 "On Approval of the Rules for the Provision of State Basic Pension Payments from Budgetary Funds, as well as the Appointment and Implementation of Pension Payments, State basic social benefits for disability, loss of Breadwinner and age, and State special benefits from an Authorized organization" (hereinafter – Rules), in addition to the documents listed in paragraph 4 of the Rules, an organization's certificate confirming the nature of the work or working conditions in accordance with Annex 4 to the Rules is submitted for the appointment of state special benefits.
If it is impossible to obtain a certificate (due to the liquidation of the enterprise, etc.), the fact of working with special working conditions may be established in court.
Another example. The reason for citizens applying to establish the legal fact of residence in a special settlement is the benefits provided for in article 24 of the Law of April 14, 1993 "On the Rehabilitation of Victims of Mass Political Repression" (hereinafter referred to as the Law on Rehabilitation) and the Law "On Special State Benefits in the Republic of Kazakhstan", which are provided to victims of political repression and persons who victims of political repression.
In accordance with article 2 of the Law on Rehabilitation, the Law on Rehabilitation applies to all persons, without exception, who were directly subjected to political repression in the territory of the former USSR and are currently citizens of the Republic of Kazakhstan. Victims of political repression are recognized in the Law on Rehabilitation as children of victims of political repression who were with their parents or replaced them in places of deprivation of liberty, in exile, exile or special settlement, as well as children of victims of political repression who were under the age of eighteen at the time of the repression and as a result of its application were left without parental care.
According to the Law on the Rehabilitation of Victims of Political Repression, persons forcibly resettled in Kazakhstan are entitled to receive monetary compensation for the period of their stay in a special settlement. In the absence of archival documents on the duration of the applicant's stay in the special settlement, this fact may be established in court. The court's decision to establish him serves as the basis for issuing a certificate to the applicant by the prosecutor's office confirming his status as a victim of political repression.
The applicants are citizens, as a rule, children of persons who have been subjected to political repression, who were born in the territory of a special settlement and live with their parents until their rehabilitation.
Features of the trial.
If, when filing an application or considering a case, it is established that there is a dispute about the law under the jurisdiction of the court, the court issues a ruling on leaving the application without consideration, in which it explains to the applicant and other interested persons their right to resolve the dispute through a claim (paragraph 13 of Article 279 of the CPC).
The decision must contain evidence in support of the conclusion about the circumstances established by the court.
Features of the operative part of the judicial act.
The decision on the establishment of a fact of legal significance must contain an indication of the purpose of establishing the fact.
It should also state the existence or absence of a legal fact. The specific content of the operative part depends on the nature of the stated requirement.
When satisfying an application for the establishment of a fact of legal significance, the court must fully disclose the content of this fact in the operative part.
A writ of execution in these cases is not issued, since a court decision to establish a fact of legal significance is the basis for registration of such a fact or registration of rights that arise in connection with the established fact by the relevant authorities.
Establishing family relations
The list of documents attached to the application
Documents in accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the applicant bases his claims, which may be:
- evidence confirming the existence of a legal fact, which is requested by the applicant (documents, correspondence, acts, letters of a business and personal nature, other correspondence containing information about the relationship of persons, etc.),
- evidence confirming the impossibility of the applicant obtaining proper evidence or restoring lost documents;
- the provisions of the law stipulating that this fact generates legal consequences;
- justification of the need to establish this fact (the purpose of submitting this application);
Note: documents confirming the circumstances on which the applicant bases his claims may include:
- a certificate from the registry office about the inability to restore the birth certificate, marriage certificate, etc.
Laws to be applied in the consideration and resolution of cases, depending on the subject matter and grounds of the claim
The Constitution.
GK.
GPC.
The Code "On Marriage (Matrimony) and Family".
The Law "On rehabilitation of victims of mass political repression".
Regulatory rulings of the Supreme Court:
- Dated June 28, 2002, No. 13 "On Judicial practice in cases of establishing facts of legal significance";
- No. 5 dated June 29, 2009 "On certain issues of Application of Inheritance Legislation by Courts";
- No. 21 dated December 31, 2001 "On the preparation of Civil Cases for trial"
Establishing the fact of finding a dependent person
The list of documents attached to the application
Documents in accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the applicant bases his claims, which may be:
- evidence confirming the fact that the applicant is dependent on a deceased person (documents, acts, letters of a business or personal nature containing information about the applicant's dependent status);
- evidence establishing that the assistance provided was a permanent and main source of livelihood for the applicant (postal orders, letters and other documents attesting to the receipt by the applicant of money and other assistance from the breadwinner)
- documents proving that the applicant is a disabled member of the deceased's family and was dependent on him (a copy of the marriage certificate, birth certificate, adoption certificate, disability certificate, etc.)
Laws to be applied in the consideration and resolution of cases, depending on the subject matter and grounds of the claim
In accordance with paragraph 1 of this table, and:
The Law "On State social benefits for disability, loss of breadwinner and age in the Republic of Kazakhstan".
Normative Resolution of the Supreme Court of June 29, 2009 No. 5 "On certain issues of application of Inheritance legislation by Courts"
Establishing the fact of registration of birth, adoption, marriage, divorce and death
The list of documents attached to the application
Documents in accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the applicant bases his claims, which may be:
- a certificate from the rags archive confirming the fact that the relevant record was not preserved in the bodies of the rags, and the conclusion of the district (city) department of the rags on the refusal to restore such a record by these bodies;
- evidence confirming the existence of this legal fact (documents, acts, letters containing information on registration of birth, adoption, marriage, divorce, death);
Note: when accepting an application, it is necessary to pay attention to why the RAGS authorities refused to issue a document on the registration of marriage, divorce, etc. – due to the lack of preservation of the archive (for example, in connection with the destruction of the archive during the war, natural disaster, fire, etc.) or due to the absence of the required entry in the acts of civil status. The court has the right to consider an application for establishing the fact of birth registration if such a record has not been preserved in the organs of the RAGS and its restoration is refused by these bodies. At the same time, the court does not have the right to determine the age of citizens.
The list of documents attached to the application
Documents in accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the applicant bases his claims, which may be:
- video and photographic materials, letters from the child's father, his questionnaires, applications for registration for housing, kindergarten, school, extracts from the house book, witness statements, etc.
Laws to be applied in the consideration and resolution of cases, depending on the subject matter and grounds of the claim
The Constitution.
GK.
GPC.
The Code "On Marriage (Matrimony) and Family".
The Law "On rehabilitation of victims of mass political repression".
Regulatory rulings of the Supreme Court:
- Dated June 28, 2002, No. 13 "On Judicial practice in cases of establishing facts of legal significance";
- No. 5 dated June 29, 2009 "On certain issues of Application of Inheritance Legislation by Courts";
- No. 21 dated December 31, 2001 "On the preparation of Civil Cases for trial"
Establishing the fact of recognition of paternity
The list of documents attached to the application
Documents in accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the applicant bases his claims, which may be:
- video and photographic materials, letters from the child's father, his questionnaires, applications for registration for housing, kindergarten, school, extracts from the house book, witness statements, etc.
Laws to be applied in the consideration and resolution of cases, depending on the subject matter and grounds of the claim
In accordance with paragraph 1 of this table, and:
Normative Resolution of the Supreme Court of September 30, 1971 No. 7 "On judicial practice in cases of establishing paternity and the fact of recognizing paternity" (as amended and supplemented by normative resolutions of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 6, dated May 31, 2012 No. 2).
Establishing the fact of ownership of title documents
The list of documents attached to the application
Documents in accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the applicant bases his claims, which may be:
- evidence confirming that the title document belongs to the applicant and that the organization that issued the document is unable to make appropriate corrections to it (passport, birth certificate, certificate of liquidation of the enterprise, institution, organization, or certificates stating that these authorities cannot issue a new document or make corrections in connection with with the unsecurity of archival materials, etc.).
Title documents may be, for example, contracts of sale, barter, donation of property, and documents confirming the testator's ownership of it - registration certificates, certificates of inheritance, certificates of ownership, documents issued by administrative authorities, executive authorities, etc.
Laws to be applied in the consideration and resolution of cases, depending on the subject matter and grounds of the claim
The Constitution.
GK.
GPC.
The Code "On Marriage (Matrimony) and Family".
The Law "On rehabilitation of victims of mass political repression".
Regulatory rulings of the Supreme Court:
- Dated June 28, 2002, No. 13 "On Judicial practice in cases of establishing facts of legal significance";
- No. 5 dated June 29, 2009 "On certain issues of Application of Inheritance Legislation by Courts";
- No. 21 dated December 31, 2001 "On the preparation of Civil Cases for trial"
Establishing the fact of finding a dependent person
The list of documents attached to the application
Documents in accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the applicant bases his claims, which may be:
- evidence confirming the fact that the applicant is dependent on a deceased person (documents, acts, letters of a business or personal nature containing information about the applicant's dependent status);
- evidence establishing that the assistance provided was a permanent and main source of livelihood for the applicant (postal orders, letters and other documents attesting to the receipt by the applicant of money and other assistance from the breadwinner)
- documents proving that the applicant is a disabled member of the deceased's family and was dependent on him (a copy of the marriage certificate, birth certificate, adoption certificate, disability certificate, etc.)
Laws to be applied in the consideration and resolution of cases, depending on the subject matter and grounds of the claim
In accordance with paragraph 1 of this table, and:
The Law "On State social benefits for disability, loss of breadwinner and age in the Republic of Kazakhstan".
Normative Resolution of the Supreme Court of June 29, 2009 No. 5 "On certain issues of application of Inheritance legislation by Courts"
Establishing the fact of registration of birth, adoption, marriage, divorce and death
The list of documents attached to the application
Documents in accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the applicant bases his claims, which may be:
- a certificate from the rags archive confirming the fact that the relevant record was not preserved in the bodies of the rags, and the conclusion of the district (city) department of the rags on the refusal to restore such a record by these bodies;
- evidence confirming the existence of this legal fact (documents, acts, letters containing information on registration of birth, adoption, marriage, divorce, death);
Note: when accepting an application, it is necessary to pay attention to why the RAGS authorities refused to issue a document on the registration of marriage, divorce, etc. – due to the lack of preservation of the archive (for example, in connection with the destruction of the archive during the war, natural disaster, fire, etc.) or due to the absence of the required entry in the acts of civil status. The court has the right to consider an application for establishing the fact of birth registration if such a record has not been preserved in the organs of the RAGS and its restoration is refused by these bodies. At the same time, the court does not have the right to determine the age of citizens.
The list of documents attached to the application
Documents in accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the applicant bases his claims, which may be:
- video and photographic materials, letters from the child's father, his questionnaires, applications for registration for housing, kindergarten, school, extracts from the house book, witness statements, etc.
Laws to be applied in the consideration and resolution of cases, depending on the subject matter and grounds of the claim
The Constitution.
GK.
GPC.
The Code "On Marriage (Matrimony) and Family".
The Law "On rehabilitation of victims of mass political repression".
Regulatory rulings of the Supreme Court:
- Dated June 28, 2002, No. 13 "On Judicial practice in cases of establishing facts of legal significance";
- No. 5 dated June 29, 2009 "On certain issues of Application of Inheritance Legislation by Courts";
- No. 21 dated December 31, 2001 "On the preparation of Civil Cases for trial"
Establishing the fact of recognition of paternity
The list of documents attached to the application
Documents in accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the applicant bases his claims, which may be:
- video and photographic materials, letters from the child's father, his questionnaires, applications for registration for housing, kindergarten, school, extracts from the house book, witness statements, etc.
Laws to be applied in the consideration and resolution of cases, depending on the subject matter and grounds of the claim
In accordance with paragraph 1 of this table, and:
Normative Resolution of the Supreme Court of September 30, 1971 No. 7 "On judicial practice in cases of establishing paternity and the fact of recognizing paternity" (as amended and supplemented by normative resolutions of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 6, dated May 31, 2012 No. 2).
Establishing the fact of ownership of title documents
The list of documents attached to the application
Documents in accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the applicant bases his claims, which may be:
- evidence confirming that the title document belongs to the applicant and that the organization that issued the document is unable to make appropriate corrections to it (passport, birth certificate, certificate of liquidation of the enterprise, institution, organization, or certificates stating that these authorities cannot issue a new document or make corrections in connection with with the unsecurity of archival materials, etc.).
Title documents may be, for example, contracts of sale, barter, donation of property, and documents confirming the testator's ownership of it - registration certificates, certificates of inheritance, certificates of ownership, documents issued by administrative authorities, executive authorities, etc.
Laws to be applied in the consideration and resolution of cases, depending on the subject matter and grounds of the claim
The Constitution.
GK.
GPC.
The Code "On Marriage (Matrimony) and Family".
The Law "On rehabilitation of victims of mass political repression".
Regulatory rulings of the Supreme Court:
- Dated June 28, 2002, No. 13 "On Judicial practice in cases of establishing facts of legal significance";
- No. 5 dated June 29, 2009 "On certain issues of Application of Inheritance Legislation by Courts";
- No. 21 dated December 31, 2001 "On the preparation of Civil Cases for trial"
Establishing the existence of documents confirming the ownership, use and (or) disposal of real estate objects
The list of documents attached to the application
Documents in accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the applicant bases his claims, which may be:
- evidence attesting to the applicant's loss of documents confirming ownership of the property;
- evidence that the applicant applied to the registration authorities and was refused registration of real estate, indicating the reasons for such refusal;
- evidence confirming the existence of this fact (certificates of residence, ownership of real estate, documents in which there is an exact reference to the actual owner of a completed ownership document, tax receipts, insurance policies, etc.)
Laws to be applied in the consideration and resolution of cases, depending on the subject matter and grounds of the claim
The Constitution.
GK.
GPC.
The Code "On Marriage (Matrimony) and Family".
The Law "On rehabilitation of victims of mass political repression".
Regulatory rulings of the Supreme Court:
- Dated June 28, 2002, No. 13 "On Judicial practice in cases of establishing facts of legal significance";
- No. 5 dated June 29, 2009 "On certain issues of Application of Inheritance Legislation by Courts";
- No. 21 dated December 31, 2001 "On the preparation of Civil Cases for trial"
Establishing the fact of an accident
The list of documents attached to the application
Documents in accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the applicant bases his claims, which may be:
- documents confirming that the establishment of the fact of an accident in another (non-judicial) manner is excluded due to the insufficiency or inconsistency of the available evidence or due to the inability to recover lost documents that confirmed this fact at the time (certificates from relevant organizations on the liquidation of the institution, on the absence of archival materials, that they cannot establish this a fact due to the statute of limitations and for other reasons);
- evidence establishing the existence of an accident (documents from medical institutions, certificates from the workplace, written explanations from eyewitnesses, etc.)
Laws to be applied in the consideration and resolution of cases, depending on the subject matter and grounds of the claim
The Constitution.
GK.
GPC.
The Code "On Marriage (Matrimony) and Family".
The Law "On rehabilitation of victims of mass political repression".
Regulatory rulings of the Supreme Court:
- Dated June 28, 2002, No. 13 "On Judicial practice in cases of establishing facts of legal significance";
- No. 5 dated June 29, 2009 "On certain issues of Application of Inheritance Legislation by Courts";
- No. 21 dated December 31, 2001 "On the preparation of Civil Cases for trial"
The Labor Code.
Establishing the fact of a person's death
The list of documents attached to the application
Documents in accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the applicant bases his claims, which may be:
- a document confirming the refusal of the rags to register the death event or that these authorities do not have data on the registration of this event;
- evidence that reliably attests to the death of a person at a certain time and under certain circumstances (medical report, acts of law enforcement agencies, etc.)
In accordance with paragraph 1 of this table, and:
Normative Resolution of the Supreme Court of September 30, 1971 No. 7 "On judicial practice in cases of establishing paternity and the fact of recognizing paternity" (as amended and supplemented by normative resolutions of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 6, dated May 31, 2012 No. 2).
Establishing the fact of ownership of title documents
The list of documents attached to the application
Documents in accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the applicant bases his claims, which may be:
- evidence confirming that the title document belongs to the applicant and that the organization that issued the document is unable to make appropriate corrections to it (passport, birth certificate, certificate of liquidation of the enterprise, institution, organization, or certificates stating that these authorities cannot issue a new document or make corrections in connection with with the unsecurity of archival materials, etc.).
Title documents may be, for example, contracts of sale, barter, donation of property, and documents confirming the testator's ownership of it - registration certificates, certificates of inheritance, certificates of ownership, documents issued by administrative authorities, executive authorities, etc.
Laws to be applied in the consideration and resolution of cases, depending on the subject matter and grounds of the claim
The Constitution.
GK.
GPC.
The Code "On Marriage (Matrimony) and Family".
The Law "On rehabilitation of victims of mass political repression".
Regulatory rulings of the Supreme Court:
- Dated June 28, 2002, No. 13 "On Judicial practice in cases of establishing facts of legal significance";
- No. 5 dated June 29, 2009 "On certain issues of Application of Inheritance Legislation by Courts";
- No. 21 dated December 31, 2001 "On the preparation of Civil Cases for trial"
Establishing the existence of documents confirming the ownership, use and (or) disposal of real estate objects
The list of documents attached to the application
Documents in accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the applicant bases his claims, which may be:
- evidence attesting to the applicant's loss of documents confirming ownership of the property;
- evidence that the applicant applied to the registration authorities and was refused registration of real estate, indicating the reasons for such refusal;
- evidence confirming the existence of this fact (certificates of residence, ownership of real estate, documents in which there is an exact reference to the actual owner of a completed ownership document, tax receipts, insurance policies, etc.)
Laws to be applied in the consideration and resolution of cases, depending on the subject matter and grounds of the claim
The Constitution.
GK.
GPC.
The Code "On Marriage (Matrimony) and Family".
The Law "On rehabilitation of victims of mass political repression".
Regulatory rulings of the Supreme Court:
- Dated June 28, 2002, No. 13 "On Judicial practice in cases of establishing facts of legal significance";
- No. 5 dated June 29, 2009 "On certain issues of Application of Inheritance Legislation by Courts";
- No. 21 dated December 31, 2001 "On the preparation of Civil Cases for trial"
Establishing the fact of an accident
The list of documents attached to the application
Documents in accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the applicant bases his claims, which may be:
- documents confirming that the establishment of the fact of an accident in another (non-judicial) manner is excluded due to the insufficiency or inconsistency of the available evidence or due to the inability to recover lost documents that confirmed this fact at the time (certificates from relevant organizations on the liquidation of the institution, on the absence of archival materials, that they cannot establish this a fact due to the statute of limitations and for other reasons);
- evidence establishing the existence of an accident (documents from medical institutions, certificates from the workplace, written explanations from eyewitnesses, etc.)
Laws to be applied in the consideration and resolution of cases, depending on the subject matter and grounds of the claim
The Constitution.
GK.
GPC.
The Code "On Marriage (Matrimony) and Family".
The Law "On rehabilitation of victims of mass political repression".
Regulatory rulings of the Supreme Court:
- Dated June 28, 2002, No. 13 "On Judicial practice in cases of establishing facts of legal significance";
- No. 5 dated June 29, 2009 "On certain issues of Application of Inheritance Legislation by Courts";
- No. 21 dated December 31, 2001 "On the preparation of Civil Cases for trial"
The Labor Code.
Establishing the fact of a person's death
The list of documents attached to the application
Documents in accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the applicant bases his claims, which may be:
- a document confirming the refusal of the rags to register the death event or that these authorities do not have data on the registration of this event;
- evidence that reliably attests to the death of a person at a certain time and under certain circumstances (medical report, acts of law enforcement agencies, etc.)
Laws to be applied in the consideration and resolution of cases, depending on the subject matter and grounds of the claim
The Constitution.
GK.
GPC.
The Code "On Marriage (Matrimony) and Family".
The Law "On rehabilitation of victims of mass political repression".
Regulatory rulings of the Supreme Court:
- Dated June 28, 2002, No. 13 "On Judicial practice in cases of establishing facts of legal significance";
- No. 5 dated June 29, 2009 "On certain issues of Application of Inheritance Legislation by Courts";
- No. 21 dated December 31, 2001 "On the preparation of Civil Cases for trial"
The Labor Code.
The Code "On Marriage (Matrimony) and Family".
Establishment of the fact of acceptance of the inheritance and the place of opening of the inheritance
The list of documents attached to the application
In accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the applicant bases his claims:
- death certificate of the testator;
- documents confirming the existence of hereditary property;
- a house book or certificates from housing and maintenance authorities confirming the testator's place of residence and the presence of persons registered with him at the same address (to determine the circle of heirs who actually accepted the inheritance);
- a certificate of the right to inheritance (if it has been received by other heirs); a certificate from a notary, whose competence includes the registration of an inheritance case after the death of the testator, indicating the presence of other heirs, or a certificate from the notary chamber on the absence of an inheritance case;
- documents confirming the grounds for the applicant's vocation to inherit (birth certificates, marriage certificates, adoption certificates, etc., or certificates from the RAGS authorities);
- evidence of the timely actual acceptance of the inheritance by the heir:
1) receipts for payment of expenses (taxes, utilities, etc.) for the maintenance of property, certificates of repairs;
2) documents indicating that the heir has received the use of the testator's property, has paid his debts, or has taken measures to preserve and manage the inherited property;
3) witness statements, personal correspondence, etc.;
- a certificate from the notarial authorities on the refusal to issue a certificate of inheritance rights due to the insufficiency of the relevant documents necessary to notarize the fact of possession of the inherited property
Laws to be applied in the consideration and resolution of cases, depending on the subject matter and grounds of the claim
Civil Code (Chapters 57-60).
CPC (Chapter 32).
The Law of July 14, 1997. "About the notary."
Regulatory rulings of the Supreme Court:
- dated June 29, 2009. No. 5 "On some issues of application of inheritance legislation by courts";
- Dated June 28, 2002, No. 13 "On Judicial practice in cases of establishing facts of legal significance"
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