If the requirements of the legislation on legalization are not met, the person who owns the vehicle assumes the risk of adverse consequences.
When the participants in an accident are citizens of the Republic of Kazakhstan who have not legalized imported foreign vehicles, the question arises about the legal status of their owners. Upon filing a claim, such persons provide the court with powers of attorney for the ownership, management and disposal of vehicles from foreign owners.
By the decision of the Aktobe City Court dated May 30, 2022, the claim of H.J. for recovery of damage caused by an accident from T.M. was satisfied. The court's decision entered into force, and there was no appeal.
At the same time, it was established from the case file that the plaintiff, Kh.Zh., was not the owner of the vehicle, but was driving it on the basis of a power of attorney issued by A.A. in Ufa, Russian Federation.
The vehicle has not been temporarily registered with the authorized body for the plaintiff. In accordance with paragraph 1 of Article 167 of the Civil Code of the Republic of Kazakhstan, a power of attorney is a written authorization from one person (principal) to represent on his behalf, issued by him to another person (attorney).
By virtue of this provision, the power of attorney confirms the legality of ownership from the owner, a foreign citizen, but does not confirm the emergence of ownership rights.
In addition, currently in the Republic of Kazakhstan, a power of attorney is not required to drive a vehicle.
Since these persons did not legalize foreign vehicles, respectively, they did not acquire ownership rights to them, and therefore the courts of the Aktobe region lawfully refused to satisfy other claims of such persons filed in their interests.
For example, by the decision of the Alginsky District Court of the Aktobe region dated March 24, 2023, the claim of B.N. to D.A. for compensation for damage caused by an accident was denied, the culprit of which was the defendant who violated the rules of grazing farm animals.
The court found that the plaintiff B.N. is not the owner of a Kia Spectra vehicle, which is registered to a citizen of the Russian Federation, K.R., the plaintiff drove the vehicle on the basis of an insurance policy.
The Court of first instance concluded that B.N. was not a proper plaintiff. The plaintiff's insurance policy does not replace the ownership right and does not grant the right to file this claim.
The insurance policy is important only when the plaintiff's own civil liability for damages occurs.
This position of the Aktobe Regional Court corresponds to the norms of law, since in accordance with the Decree of the Government of the Republic of Kazakhstan dated January 9, 2023 No. 13, certain categories of vehicles imported into the territory of the Republic of Kazakhstan before September 1, 2022, are subject to initial registration with the exemption of individuals who imported such vehicles from the extended obligations of manufacturers (importers).
In case of non-compliance with the requirements of the specified regulatory legal act, persons owning vehicles that are illegalized in the territory of the Republic of Kazakhstan assume the risk of the associated adverse consequences.
Jurisdiction of cases
The jurisdiction of cases is determined in accordance with the general rules established by Article 29 of the CPC, that is, at the place of residence of the defendant of an individual or at the location of the defendant of a legal entity.
Along with this, claims for compensation for damage caused by injury or other damage to health, as well as caused by the death of the breadwinner, may be filed by the plaintiff at his place of residence or at the place of injury (part 5 of Article 30 of the CPC).
State duty
According to paragraph 1 of Article 610 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (Tax Code), a state fee is charged in the following amounts from claims for material damage filed in court: for individuals - 1 percent of the amount of the claim, but not more than 10,000 MCI, for legal entities - 3 a percentage of the claim amount, but not more than 20,000 MCI, from non-property claims - 0.5 MCI.
Plaintiffs in claims for compensation for damage caused by injury or other damage to health, as well as the death of the breadwinner, are exempt from paying state duty on the basis of subparagraph 5) of Article 616 of the Tax Code.
The legislation does not provide for pre-trial settlement
Courts should keep in mind that the legislation does not provide for the plaintiff's compliance with the procedure for pre-trial settlement of disputes on compensation for damage caused by a source of increased danger (hereinafter referred to as IPO).
Example: By the ruling of the Alatau District Court of Almaty dated April 5, 2023, the claim of N.D. to K.K. and Zh.E. for recovery of material damage caused by IPO in connection with non-compliance with the procedure for pre-trial settlement of the dispute was dismissed.
In accordance with subparagraph 1) of Article 279 of the CPC RK, the court leaves the claim without consideration if the plaintiff has not complied with the procedure established by law for this category of cases or the procedure provided for in the contract for pre-trial dispute settlement and the possibility of applying this procedure has not been lost.
If the law establishes or the contract provides for a pre-trial dispute settlement procedure for a certain category of cases, an appeal to the court may be after observing this procedure (part 6 of Article 8 of the CPC RK).
Taking into account these norms, by the ruling of the judicial board for Civil Cases of the Almaty City Court dated May 18, 2023, the ruling of the court of first instance was canceled, with the transfer of the case to the court of first instance for consideration on the merits.
The plaintiffs are citizens and legal entities.
In accordance with Part 1 of Article 47 of the CPC RK, plaintiffs are citizens and legal entities who have filed a claim in defense of their violated or disputed rights and freedoms, legitimate interests, or in whose defense a claim has been filed by other persons in accordance with the procedure provided for by this Code.
Regulatory and legal framework
The normative legal acts regulating these legal relations and subject to application in the consideration of cases of the analyzed category are:
- The Constitution of the Republic of Kazakhstan;
- The Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code);
- The Civil Procedure Code of the Republic of Kazakhstan (hereinafter - CPC);
- The Code of the Republic of Kazakhstan "On Administrative Offenses" (hereinafter referred to as the Administrative Code);
- The Labor Code of the Republic of Kazakhstan (hereinafter referred to as the Labor Code),
- The Law of the Republic of Kazakhstan "On compulsory insurance of civil liability of vehicle owners";
- The Law of the Republic of Kazakhstan "On compulsory insurance of civil liability of the carrier to passengers";
- The Law of the Republic of Kazakhstan "On Road Traffic" dated April 17, 2014;
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No. 8 "On Judicial practice in disputes arising from insurance contracts";
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015 No. 7 "On the application by courts of legislation on compensation for moral damage";
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 9, 1999 No. 9 "On certain issues of application by courts of the Republic of legislation on compensation for damage caused to health";
- Rules for determining the amount of damage caused to a vehicle, approved by Resolution No. 14 of the Board of the National Bank of the Republic of Kazakhstan dated January 28, 2016;
- Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated June 30, 2023 No. 534 "On approval of the Rules of the Road, the Basic provisions for the admission of vehicles to operation, the list of operational and special services, the transport of which is subject to equipment with special light and sound signals and coloring according to special color schemes";
- Standard Rules for keeping and walking pets, approved by Order No. 168 of the Minister of Ecology, Geology and Natural Resources of the Republic of Kazakhstan dated May 20, 2022; - Standard Rules for grazing farm Animals, approved by Order No. 145 of the Minister of Agriculture of the Republic of Kazakhstan dated April 29, 2020.
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