Disputes about the collection of capitalized payments

The court of first instance came to the correct conclusion that the amount of compensation paid depends on the degree of loss of professional ability at the time of applying for capitalization of payments And filed a lawsuit with the State Institution "Ministry of Labor and Social Protection of the Population of the Republic of Kazakhstan" (hereinafter referred to as the Ministry) to recover the capitalized payments in the amount of 1,024,683 tenge. By the decision of the Yesilsky District Court of Nur-Sultan dated January 19, 2021, the claim was partially satisfied. In favor of I. An amount of 231,238 tenge was recovered from the republican budget. The responsibility for the payment of the awarded amounts is assigned to the administrator of the 027 program, the Ministry. By the resolution of the judicial board for civil cases of the Nur-Sultan City Court dated May 13, 2021, the court's decision was changed, the amount recovered was increased to 1,024,683 tenge. The Judicial Board for Civil Cases of the Supreme Court overturned the decision of the appellate instance, upholding the decision of the court of first instance on the following grounds. It follows from the materials of the civil case that I. Since 1980, he worked at SHSU-3 of the Karagandashakhtostroy combine as a sinker, since July 21, 1997 - at the Kazakhstanskaya mine, where an industrial accident act dated January 12, 1999 was drawn up against him, the type of incident was occupational disease. On December 2, 1998, I. was diagnosed with a loss of professional working capacity of 30% for a period of one year due to occupational diseases: chronic bronchitis, vibration sickness. The responsibility between the enterprises was divided on a shared basis, depending on the period of time worked. Thus, the share of SHSU-3 of the Karagandashakhtostroy combine was determined at 79.6%. By orders dated January 22, 1999 of the Kazakhstanskaya mine and March 19, 1999 of SHSU-3 of the Karagandashakhtostroy combine, payments were made to compensate for harm to health. Monthly payments in the amount of 4441.20 tenge have been determined at SHSU-3 of the Karagandashakhtostroy combine based on the average monthly salary of 18,598 tenge. In 1996, JSC "K" was reorganized into the main joint-stock company of the open type "Karagandashakhtostroy", SHSU-3 was transformed into a subsidiary joint-stock company of the open type "SHSU-3" (DAOOT "SHSU-3").

Disputes about the collection of capitalized payments

By a court decision dated September 22, 1999, DAOOT SHSU-3 was declared bankrupt and liquidated on October 10, 2003. Before being declared bankrupt, DAOOT SHSU-3 was reorganized by the resolution of the Karaganda Territorial Committee of State Property and Privatization dated January 29, 1999 by separating an independent legal entity – JSC "A". By a court decision dated June 4, 2004, JSC "A" was declared bankrupt, the decision indicated that there was a debt on recourse payments to employees, including I. – 65 384.49 tenge. The bankruptcy proceedings were completed by a court ruling dated March 3, 2006. There is no information on the capitalization of payments for health damage in the case file, and there is also no register of claims of creditors of the first priority approved by the court. I. motivated his claims in the present case by the fact that at the time of the bankruptcy of JSC "A" he was 52 years old, up to 70 years old he was entitled to payments for 18 years or 216 months at the rate of 4441.2 tenge per month and plus debt at the time of declaring the enterprise bankrupt – 65 384 tenge. In total, the plaintiff asked to recover 1,024,683 tenge in his favor. The court of first instance, partially satisfying the plaintiff's claims, concluded that the plaintiff has the right to demand capitalized payments to compensate for lost earnings, starting from the moment the degree of professional disability was established - on December 12, 2019 until reaching the age of 70 - on April 14, 2024, the total amount of which, taking into account the amount of monthly earnings – 4,441.2 tenge, the degree of professional disability – 29% for 52 months and 2 days is 231,238 tenge. The appellate instance, changing the decision of the court of first instance, motivated the decision by the fact that the amount of compensation paid does not depend on the degree of professional disability at the time of applying for capitalization, but on the amount of unpaid time-based payments, starting from the date of approval of the register of creditors' claims dated February 23, 2006, until the plaintiff reaches seventy years, which is 959,299 tenge based on the calculation of 4441.20 (the amount of lost earnings) x 216 months. The judicial board of the Supreme Court considers these conclusions of the court of Appeal to be untenable, based on the incorrect application and interpretation of substantive law. In accordance with the provisions of Article 945 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), in the event of liquidation of a legal entity recognized in accordance with the established procedure as responsible for harm caused to life and health, the corresponding payments must be capitalized to pay them to the victim according to the rules established by legislative or other regulatory legal acts.

In cases where the capitalization of payments cannot be made due to the absence or insufficiency of property of the liquidated legal entity, the awarded amounts are paid to the injured State in accordance with the procedure provided for by legislative acts. Similar provisions are contained in paragraph 4 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated October 28, 2005 No. 4 "On the practice of applying legislation on compensation for damage caused to the life and health of citizens during the liquidation of a legal entity as a result of bankruptcy," to which reference was made by both judicial instances. According to paragraph 3 of the same regulatory resolution, the amount of compensation to be paid in the framework of bankruptcy proceedings of a legal entity is determined by capitalizing the corresponding time-based payments on the day the debtor is declared bankrupt, payable to a citizen before reaching the age of 70, but not less than ten years in advance.

Time-based payments are defined as compensation for the victim's lost earnings (income) or part of it, which he had or definitely could have had before the damage to his health and which was paid by the responsible person on a monthly basis. In accordance with paragraph 1 of Article 938 of the Civil Code, the amount of lost earnings (income) to be reimbursed is determined as a percentage of the average monthly earnings (income) before injury or other damage to health or before disability, corresponding to the degree of loss of professional disability by the victim. According to the certificate available in the case file, the plaintiff was re-examined on December 12, 2019 and 29% of the loss of professional disability was established for him, the reason being an "occupational disease" without a period for re-examination. However, until that time, the plaintiff had no degree of disability, and the plaintiff had not provided any evidence to the court to the contrary. In such circumstances, the court of first instance came to the correct conclusion that the amount of compensation paid depends on the degree of professional disability at the time of applying for capitalization of payments. In these circumstances, the judicial board of the Supreme Court concludes that the arguments of the petition are justified.

These circumstances indicate that the decision of the appellate instance does not comply with the provisions of Article 224 of the CPC and paragraphs 5 and 11 of the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 5 "On Judicial Decision", according to which the judicial act must be lawful and justified.  

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