Damage caused by unlawful actions (inaction) to property or non-property benefits and rights of citizens and legal entities is subject to full compensation by the person who caused the damage.
JSC "K" filed a lawsuit with the court, arguing that as a result of Zh.'s criminal actions, established by the court verdict of September 07, 2010, material damage totaling KZT 3,089,779 was caused, and therefore, it requested that the claims be satisfied. By the decision of the Aktobe City Court dated June 03, 2011, the claims of JSC "K" were satisfied. It was decided to collect in favor of JSC "K" with Zh. the amount of damage is 3 089 779 tenge, and a state fee of 30 897 tenge is paid to the budget. By the decision of the appellate judicial board of the Aktobe Regional Court dated November 25, 2011, the decision of the Aktobe City Court dated June 03, 2011 was canceled with the issuance of a new decision to dismiss the claims of JSC "K". The petition contains arguments about disagreement with the decision of the court of appeal, and states that the infliction of material damage to JSC "K" Zh. was established by a court verdict, the construction work was not completed, therefore, the conclusions of the court of appeal do not correspond to the circumstances of the case. In the response to the petition, the representative of J. – I. He expressed disagreement with the arguments of the petition, pointing out that LLP "A" compensated for the losses of JSC "K" caused by Zh., and the arguments set out in the petition cannot serve as a basis for canceling the decision of the court of appeal, in connection with which he asked to leave the appealed judicial act unchanged.
During the consideration of the case, such violations were committed by the court of appeal. The Supervisory Judicial Board of the Supreme Court overturned the decision of the appellate judicial Board of the Aktobe Regional Court and upheld the decision of the Aktobe City Court on the following grounds. It can be seen from the case file that according to the contract on public procurement of construction and installation works dated October 22, 2006, concluded between JSC "K" - "Directorate for Design and Capital Construction" (hereinafter - The Customer) and LLP "A", represented by Director J., undertook, at the request of the Customer, to carry out work on the construction of buildings, a wellness center, two heating booths, a Montersky point with a garage and the installation of a metal fence around the Montersky point at the Isken station in the Makat district of Atyrau region until January 20, 2007, with a total cost of the amount is 34,188,250 tenge. Subsequently, the contract was extended until July 20, 2011.
Damage caused by unlawful actions (inaction) to property or non-property benefits and rights of citizens and legal entities is subject to full compensation by the person who caused the damage.
By the verdict of the Makatsky District Court of Atyrau region dated September 07, 2010, Zh. He was found guilty of committing a crime under paragraph "b" of part 3 of Article 176 of the Criminal Code and sentenced to imprisonment for three years, with confiscation of property and deprivation of the right to engage in entrepreneurial activity for three years, while serving his sentence in a correctional colony of general regime. By the decision of the appellate judicial board of Atyrau Regional Court dated November 02, 2010, the specified sentence was changed. In accordance with article 63 of the Criminal Code, the imposed sentence of imprisonment for a period of three years was replaced by a suspended sentence with a probation period of 2 years. The rest of the verdict remains unchanged. The above-mentioned court verdict established that as a result of illegal actions of the director of LLP "A" Zh. funds in the amount of 30,174,708 tenge were transferred to his settlement account from JSC "K", and the actual cost of the work actually performed amounted to 27,084,929 tenge, Zh.'s actions caused material damage to JSC "K" in the total amount of 3 089,779 tenge. The Court of Appeal, overturning the decision of the court of first instance, proceeded from the fact that in the decision of the appellate judicial board of the Atyrau Regional Court of November 02, 2010 in the criminal case against Zh. It is indicated that the representative of JSC "K" O. and the witness, the head of the western region of the directorate B., explained that at the moment the construction work has been completed, the working commission has accepted all the facilities, and JSC "K" has no complaints against the convict. However, it is impossible to agree with such conclusions of the court on the following grounds. By virtue of paragraph 1 of Article 917 of the Civil Code, damage (property and (or) non-property) caused by unlawful actions (inaction) to property or non-property benefits and rights of citizens and legal entities is subject to compensation by the person who caused the damage in full. The court verdict reliably established the guilt of Zh., who, being the director of LLP "A", in order to realize criminal intentions aimed at embezzlement and embezzlement, that is, embezzlement of entrusted funds on a large scale, in December 2007 compiled fictitious acts of form No. 2, indicating in them deliberately false information regarding the completion of construction work at the facility. and readiness for commissioning, when the actual construction on the site has not been completed. On the basis of these fictitious documents, on March 05, 2008, JSC "K" transferred funds provided for in the contract to the account of LLP "A", as a result of Zh.'s actions, damage in the amount of KZT 3,089,779 was caused.
The crime is over before the criminal case is initiated. These circumstances are confirmed by the conclusion of the forensic construction examination. In such circumstances, the court of first instance correctly applied Article 71 of the CPC, according to which a court verdict in a criminal case that recognizes the right to satisfy a claim is binding on the court considering the case of the civil consequences of the acts of the person against whom the court verdict took place. A court verdict that has entered into legal force is binding on the court considering such a civil case, also on the issues of whether these acts took place and whether they were committed by this person, as well as on other circumstances established by the verdict and their legal assessment. Consequently, the subsequent fulfillment of contractual obligations between legal entities upon completion of the construction of the facility is not a reason for the release of J. from compensation for damages established by the verdict. Thus, the decision of the court of first instance to satisfy the claim of JSC "K" to Zh. The recovery of the amount of damage of KZT 3,089,779 is essentially correct. Considering the above, the supervisory judicial board of the Supreme Court considered it necessary to agree with the arguments of the petition of the director of the branch of JSC "K" - Aktobe branch of the road" - I.
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