Establishing the inaccuracy of civil status records

             According to Articles 318, 319 of the Civil Procedure Code of the Republic of Kazakhstan, the court hears cases of incorrect entries in the civil registry books if the civil registry offices, in the absence of a dispute over the law, refused to make corrections to the record.

An application for the establishment of an incorrect entry in the books of records of acts of civil status is submitted to the court in writing or in the form of an electronic document at the place of residence of the applicant or the location of the body of records of acts of civil status.

The application must indicate what is the reason for the incorrect entry in the civil registration books, when and by which civil registration authority the correction or modification of the record was refused.

Similar provisions are contained in Articles 361,362 of the Civil Procedure Code of the Republic of Kazakhstan dated 31.10.2015, effective from 01.01.2016.

According to the above rules of the procedural law, the courts consider cases of this category in cases where the registry office refuses to correct or change the record or there is a dispute about the law.

Thus, an appeal to the court can take place only if, in the absence of a dispute about the law, the registry offices refuse to make corrections to the record.

Applications for the establishment of incorrect entries in the civil registry books are subject to the jurisdiction of the courts at the applicant's place of residence, regardless of which registry office registered the act in need of correction, or to the courts at the location of the civil registry office.

Moreover, applicants can be not only citizens who have a defective document issued by the registry office, but also the heirs of these persons, who, in connection with their death, have certain rights and obligations that they cannot exercise as a result of inaccuracies in the records of the deceased.

The application submitted to the court must indicate what exactly is the inaccuracy of the civil registration, when and by which registry office the correction of the record was refused.

Taking into account the above, we believe that applicants must provide evidence of their application to the registry Office regarding the correction of an incorrect entry and the refusal of this body to make such corrections, and therefore the applicant's appeal to the court without first contacting the registry office is the basis for returning the application in accordance with the provisions of subparagraph 1 of paragraph 1 of Article 154 of the CPC RK (art. 152 CPC RK (31.10.2015) (non-compliance with the procedure for preliminary pre-trial dispute resolution established by law for this category of disputes and the possibility of applying this procedure has not been lost).

Applications for this category of cases, as a rule, comply with the requirements of the procedural law; if they do not comply with the requirements of the procedural law, applications are left without motion with reasonable time to eliminate the deficiencies that served as the basis for leaving them without motion, or returned in accordance with subparagraph 1 of paragraph 1 of Article 154 of the CPC RK.

At the same time, it should be noted that the CPC of the Republic of Kazakhstan, introduced on 01.01.2016 and dated 31.10.2015, does not provide for the possibility of leaving applications without movement.

However, the Aktogay District Court of the Pavlodar region accepted and considered an application for the establishment of a fact of legal significance by Mr. N., who requested corrections to the civil registry, indicating that there was an error in the spelling of his surname in the birth certificate No. 04 dated 09.01.1954.

Based on the results of the consideration of the case, the court, referring to the provisions of the procedural law governing the establishment of facts of legal significance, namely Articles 290-292 and the Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On Judicial Practice in cases of establishing facts of legal significance" No. 13 dated 06/28/2002, the decision of August 25, 2015 stated satisfied the requirements.

At the same time, the court did not take into account that when considering cases of this category, the provisions of Chapter 37 of the CPC of the Republic of Kazakhstan (Chapter 44 of the CPC of the Republic of Kazakhstan (dated 31.10.2015) are subject to application.

Meanwhile, by the ruling of the judge of the Aktau City Court No. 2 dated March 20, 2015, Mr. M.'s application for establishing the incorrectness of the civil status record was returned, on the grounds that the applicant resides in the Russian Federation, and the registration record, which he applied for, was made by the registry office of the Berezovsky district of the Odessa region of the Ukrainian SSR..

This conclusion of the judge, we believe, is based on the norms of the procedural law, since according to art. 417 of the CPC RK (art. 467 of the CPC RK (dated 31.10.2015) - the courts of the Republic of Kazakhstan consider cases of special proceedings in cases where civil status records, the establishment of which irregularities have been filed, committed by the civil registry offices of the Republic of Kazakhstan.

By the ruling of the Taraz City Court of the Zhambyl region dated February 09, 2015, the proceedings in case No. 2-1939/15 on the application of Ms. K. to establish the inaccuracy of recording the act of civil status were terminated.

In making the procedural decision on the case, the court of first instance proceeded from the fact that the applicant resides in the Russian Federation, and the record, which he insists is incorrect, was made by the Registry Office of the Yasnensky district municipality of the Orenburg region of the Russian Federation, whose actions in refusing to make corrections, the applicant can appeal.

By the ruling of the Appellate Judicial Board for Civil and Administrative Cases of the Zhambyl Regional Court dated March 26, 2015, the judge's ruling was overturned and the application was sent to the same court of first instance for consideration on its merits, while the court of appeal referred to the fact that such applications are subject to consideration and resolution in civil proceedings.

It appears that, based on the provisions of art.417 of the CPC RK (art. 467 of the CPC RK dated 31.10.2015), there were no grounds for revoking the ruling and sending the case for consideration on the merits. Of course, the civil registration authorities, as well as other interested persons, should be involved as interested persons in cases of this category.

However, in case No. 2-21433, according to A.'s statement on the establishment of the inaccuracy of recording the act of civil status, only A.'s private notary was indicated as an interested person. During the preparation of the case for trial and subsequently, the judge did not take measures to involve the civil registration authority in the case, limiting himself to involvement in the case. notary public. By the decision of the Satpayevsky City Court of January 24, 2017, the application was satisfied.

Thus, when considering cases in this category, individual courts, in support of the decision, refer to the applicants' legal interest, to the provisions of the procedural law governing the establishment of facts of legal significance, as well as to the provisions of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 06/28/02 No. 13 "On Judicial practice in cases of establishing facts, having legal significance".

Meanwhile, according to the provisions of the procedural law, cases of the generalized category, although they relate to cases considered in special proceedings, do not relate to cases of establishing facts of legal significance, since they are not identical to cases of establishing the fact of registration of birth, adoption, marriage, divorce and death.

The main difference is that in cases of establishing irregularities in civil status records, there is a document confirming the relevant fact, but there are errors or inaccuracies in this document, and in cases of establishing the registration of birth, adoption, marriage, divorce or death, there is no document itself.

In accordance with the provisions of art. 320 of the CPC RK (art. 363 of the Civil Procedure Code of the Republic of Kazakhstan dated 31.10.2015) - a court decision that established the inaccuracy of an entry in the civil registration books serves as the basis for correcting or changing such an entry by the civil registration authorities, as well as based on the provisions of Chapter 37 of the Civil Procedure Code of the Republic of Kazakhstan (Chapter 44 of the Civil Procedure Code of the Republic of Kazakhstan dated 31.10.2015), in the operative part of the decision, it is necessary to indicate which entry is incorrect, when, under what number and by which registry office it was made, in respect of which persons it was made, and what changes or corrections should be made.

This conclusion is also based on the provisions of paragraph 17 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated 07/11/03 No. 5 "On Judicial decision", according to which the operative part of the decision must contain the court's conclusion arising from the factual circumstances established in the reasoning part.

Meanwhile, the study of judicial acts shows that some courts continue not to indicate in the operative part of the decision under what number and on what date, as well as by which registry office the record was made, in respect of which persons it was drawn up, what changes or corrections should be made.

So, for example, in the operative part of the decision of the Kapshagai City Court of the Almaty region dated July 15, 2015 in case No. 2- 756/15 on the application of Mr. A. to establish the inaccuracy of civil status records, it is indicated only to correct the entries in the civil status records of the applicants, without specifying the number and date of these records, as well as the names of the authority by which these records were made.

As evidenced by the analysis of court decisions on the satisfaction of applications for the generalized category of cases, their operative parts are presented in various versions, namely, in some decisions, the courts limit themselves to establishing the inaccuracy of records, in other cases they also indicate the correction or modification of incorrect records.

Thus, by the decision of the Yenbekshikazakh District Court of the Almaty region dated August 28, 2015, in case No. 2-1910/15, on the application of Ms. K. to establish the inaccuracy of civil status records, which satisfied the stated requirements, the operative part of the decision states:

"To amend the registration record ..." is illogically stated in the operative part of the decision of the Semeysky City Court of the East Kazakhstan region dated March 10, 2015 in case No. 2- 2018/15 on the application of Mr. B. to establish the inaccuracy of the civil registration.

In the operative part of the decision of the Kostanay City Court dated May 06, 2015 in case No. 2-3132/15 on the application of gr. P. to establish the inaccuracy of the registration of civil status acts, it is stated:"Make corrections...".

Meanwhile, within the meaning of current legislation, the court considers cases of establishing the inaccuracy of civil status records, which are subsequently corrected by the registry Office authorities on the basis of a court decision, and therefore, by stating the operative part of the decisions in the form described above, the courts exceed their powers, since making corrections to the registry office records falls within the competence of the registry office authorities.

It should be borne in mind that the court initiates proceedings on the establishment of irregularities in civil status records under the following conditions:

There must be a record of the defects.;

There should be no dispute about the right between the applicant and the interested parties.;

The applicant must provide a copy of the conclusion of the civil registration authority on the refusal to make corrections to the registration record.

satisfaction of the application can only take place if the applicant submits evidence that the record contains an inaccuracy that meets the criteria of relevance, admissibility and reliability, while the data set out in various documents obtained after the contested record cannot be such.

The operative part of the court's decision should contain only an indication of the finding of the incorrectness of the record, in what this inaccuracy was expressed, its number and the name of the body by which this record was made.

It should be borne in mind that the irregularity of civil status records made by the civil status registration authorities of the Republic of Kazakhstan is subject to determination.

Regulatory framework

The issues of establishing the inaccuracy of civil status records are regulated by Chapters 30, 37 and 45 of the Civil Procedure Code of the Republic of Kazakhstan, the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", the Rules for Organizing State registration of Civil status Acts, amendments, restoration, cancellation of Civil status records, approved by the order of the Minister of Justice of the Republic of Kazakhstan dated 25.02.2015 year No. 112.

It should be borne in mind that in connection with the entry into force of the Civil Procedure Code of the Republic of Kazakhstan on 01.01.2016 (31.10.2015 No. 377-SAM), the issues of establishing irregularities in civil status records are regulated by Chapters 44 (Articles 361-363) and 57 of the Civil Procedure Code (Articles 467).

At the same time, Chapter 44 of the CPC introduced a new one, in the form of setting a deadline for preparing for trial in this category of cases, the duration of which is 10 working days from the date of acceptance of the application for trial and a ban on its extension is established, the rest of the amendments have not been made and the norms of the procedural law are left in the same wording.

 

 

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