On establishing the fact of recognition of paternity, making changes to the record

B. appealed to the court with a statement to S., the State State Pension Payment Center of the Ministry of Health and Social Development of the Republic of Kazakhstan on establishing the fact of recognition of paternity, making changes to the record.

In her statement, she indicated that she had been dating S.S. since 2011.

On December 16, 2014, her daughter B.E. was born, whose father is S.S., born on August 8, 1962. At the time of their daughter's birth, they had not formalized their relationship, since K.S.S. was in a registered marriage. He did not apply to the registry office to establish paternity, because after giving birth they quarreled and did not see each other for almost a month. Before the new year, they reconciled and continued to communicate. S.S. came to his daughter almost every day, helped her swaddle, dress, bathe, played with his daughter, helped with the housework. S.S. I never doubted my paternity, I recognized myself as a father because I loved my daughter. After B.E.'s birthday, on 12/16/2015, S.S. announced that after he was cured, he would inform his relatives about B.E.'s birth and officially legally recognize paternity. However, on December 29, 2015, S.S. died. Throughout the time since the birth of his daughter, S.S. provided them with everything they needed: food, clothing, and took them to the hospital. Establishing the fact of recognition of paternity is necessary for her to receive survivor's benefits, as well as registration of inheritance rights. S.S.'s confession of paternity in relation to her daughter B.E. is confirmed by photographs and witness statements. She asked to establish the fact of recognition of the paternity of S.S., born on August 8, 1962, a native of G.P.... of the region in relation to the daughter, B.E., born on December 16, 2014, a native of the city of P.; change the surname of the minor B. to S.

S. did not recognize the stated claims, explaining that S.S. during his lifetime had to recognize the child's origin from him, but there is no evidence of this. The text messages submitted to the court are not certified by the deceased's electronic digital signature. In addition, S.S. was engaged in charity work, which may have been why he provided financial assistance to B.E.. He did not live with S.S., he did not participate in the upbringing of the child, and cell phone numbers were not registered in his name.

The representative of the RSE "State Pension Payment Center of the Ministry of Health and Social Development of the Republic of Kazakhstan" did not appear in court, asked to consider the case without his participation, leaving the satisfaction of claims to the discretion of the court.

After listening to the parties, interviewing the declared witnesses, and examining the case materials, the court comes to the following conclusion.

At the hearing, it was established that B. and S.S. had been in a close relationship since 2012.

On December 16, 2014, B.'s daughter B.E. was born. The child was registered with the mother, information about the father was recorded at the direction of the mother, which is confirmed by birth certificate No. 4182338 dated December 29, 2014, registration number No. 10-263-14-0003616. The paternity of B.E. was not established. This is not disputed by the defendant's side.

On December 29, 2015, S.S. died, which is confirmed by the death certificate dated January 5, 2016, registration number 20-697-16-0000006.

In accordance with article 49 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", in the event of the death of a person who recognized himself as the father of a child but was not married to the child's mother, the fact of his recognition of paternity may be established in court in accordance with the Civil Procedure Code of the Republic of Kazakhstan.

Based on the evidence examined at the hearing, it was established that during his lifetime, S.S. recognized himself as the father of B.E., who was born to B. on December 16, 2014. This is confirmed both by the explanations of the witnesses interviewed at the court session, and by the correspondence between B. and S.S. submitted to the court, as well as by joint photographs.

From the testimony of witnesses M., J., and T., it follows that S.S. was not only in close relations with B., but also took care of her and the child, treated the child very reverently, addressed the child as "daughter", "princess", and spoke to her in Korean. It follows from the testimony of these witnesses that S.S. visited B. with his daughter at various times, not because he was engaged in charity work, but because he recognized himself as the father of the child born to B.

Thus, the witnesses interviewed at the court session provided the following explanations to the court.

Witness M., who is a friend of B., testified that she had known S.S. since about the spring of 2012. S.S. treated B. very well. In her presence, during B.'s pregnancy, he stroked her stomach and said that they would soon have a miracle. After the child was forty days old, she visited B. for 41 days, and S.S. was there, he held his daughter in his arms, tried to hold her carefully so that the child's head would not move, since the child himself was not holding his head yet. I played with her. He called the child "daughter."

Witness J. At the hearing, she testified that she was an acquaintance of the B. family, and had communicated with her deceased grandmother. At the time, when she stayed with the child at B.'s request, S.S. took her place, and immediately went to B.E., despite the fact that the girl was asleep. He treated her tenderly and tenderly, called her "daughter", "princess", and somehow in Korean, she does not know the translation. He had a very reverent attitude towards the child.

Witness T. testified that she was a friend of the plaintiff. I've known S.S. since the spring of 2012, and B. introduced them. They (B. and S.S.) were constantly on the phone. During pregnancy, S.S. was very sensitive to B., sometimes he would say in conversation: "I wonder whose genes are going to be broken." S.S. stayed with the child when he and B. had to go on business, shopping. It was obvious that the child was desirable for him, he treated him very tenderly. He called me "daughter" and something in Korean. He believes that S.S. considered E. to be his daughter, and she drew this conclusion from his behavior. S.S. he said that "What kind of B. is she, she's a S., the genes have played their part."

The testimony of witnesses K., L., and Yu. confirms B.'s argument that they hid their relationship from everyone, and therefore these witnesses, friends, and acquaintances of the deceased were not aware of their relationship or the birth of their daughter.

Thus, witness K. testified that he was a friend of the deceased S.S., knew his family very well, because they were family friends. S.S. was a decent family man. He did not know B., had never seen her, and S.S. had not told him about their relationship.

Witness L. testified that the deceased S.S. was a friend, had known each other for more than 40 years. B. had never seen, did not know. S.S. was an excellent family man. In early January, on the 11th-12th of 2016, B. called and told the mother of the deceased that S.S. had a daughter, which she did not believe, because K.S.S. trusted her and would definitely have told about it. Indeed, Koreans have a ceremony every year.

Witness Y. testified that he was the deceased's cousin. B. had seen him a couple of times. S.S. and I were very close, there were no secrets between them. During his lifetime, he never talked about B. or his daughter. B. called after his death and informed him that he and S.S. had a daughter, he was surprised by this. She said she was going to file a lawsuit and asked to warn her mother about it.

The court has no reason to question the truth of the facts reported by the witnesses. There is no evidence of any interest of the witnesses in the outcome of the case, their testimony corresponds and does not contradict the circumstances, information about which is contained in other evidence collected in the case, their testimony is consistent with each other.

The court was provided with correspondence from B.'s cell phone. It also follows from the meaning of this correspondence that S.S. recognized himself as B.E.'s father during his lifetime. It follows from the text of the messages that he was interested in when complementary foods could be introduced; purchases for the family were discussed, including food, repairs, the purchase of an apartment, clothes for his daughter; it was discussed whose habits were passed on to the child during He wrote that "you can't get your genes anywhere," "she looks like M. (his eldest daughter) in childhood."

This is consistent with the testimony of witnesses, who explained that S.S., even during B.'s pregnancy, wondered whose genes would be broken, and witness L. and Y. explained that S.S. had a daughter in the family, and her name was abbreviated M.

The defendant's argument about the plaintiff's witnesses' interest in the outcome of the case is an unsubstantiated statement and has not been confirmed by anything. Just as the plaintiff's argument about the interest of the witnesses interviewed by the defendants in the outcome of the case has not been confirmed. The court concludes that the witnesses gave truthful testimony, as they do not contradict each other, and are consistent with other evidence in the case, including photographs presented to the court, which show that S.S. is holding B.E. in his arms, smiling at her. The photo was taken in B.'s apartment, which was not disputed by the defendant's side.

The defendant's arguments that messages from a cell phone are inadmissible evidence, since they are contained only on the plaintiff's phone, whereas it is necessary to find a second phone; they do not have an electronic digital signature; cellular numbers are not registered on S.S., the court finds unfounded, since the printout of messages submitted to the court is verified by the court with the content of messages in the cell On the plaintiff's phone, it can be seen from the technical specifications that these messages were sent from numbers 8-701-522-73-53 and 8-705-237-05-16. At a court hearing on March 4, 2016, a representative of the defendants confirmed the fact that S.S. had used the specified phone numbers during his lifetime. There is no evidence of the possibility of affixing an electronic digital signature when sending SMS by the defendant to the court, and, in the opinion of the court, this is an unsubstantiated statement by the defendant. In addition, the fact that a cell phone number is registered on a person cannot indicate that this particular person uses the number.

The defendant's argument that the plaintiff and S.S. did not live together is not a reason to dismiss the claim, since the court established the existence of a close relationship between them, and cohabitation is not a prerequisite for establishing the fact of recognition of paternity.

The defendant's argument that S.S. did not take part in the upbringing of B.E.'s child is refuted by the testimony of witnesses M., Zh., T., who explained that S.S. fussed with his daughter, played with her, took care of her, stayed with the child if necessary, which is also evident from the SMS messages submitted to the court. According to the court, the described behavior of the deceased indicates precisely participation in the upbringing of the child, commensurate with the age of the child under one year.

The fact that S.S. did not submit an application to the RAGS authorities during his lifetime to establish B.E.'s paternity is not a reason to dismiss this claim, since filing such an application was the right of S.S. himself, which currently cannot be implemented due to his death. This fact cannot indicate the absence of the deceased's desire to establish paternity in relation to B.E.'s daughter, it only indicates that the deceased did not exercise this right.

The court also concludes that the claims against the State Pension Payment Center of the Ministry of Health and Social Development of the Republic of Kazakhstan were presented unreasonably, since during the trial B. did not provide evidence of a violation of her rights by the State Pension Payment Center of the Ministry of Health and Social Development of the Republic of Kazakhstan.

The court finds the plaintiff's argument that the RCCP was involved as a defendant, since when satisfying the requirements for establishing the fact of recognition of paternity, the court will have to appoint a survivor's allowance, unfounded, since the issue of assigning benefits will be considered by the RCCP after the court's decision comes into force, in accordance with the norms of current legislation. This issue was not raised or considered at this court hearing.

In accordance with subparagraph (e) of paragraph 2 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated September 30, 1971 No. 7, as amended on March 31, 2012 "On judicial practice in cases of establishing paternity and recognition of paternity", in the event of the death of a person who recognized himself as the father of a child but was not married. (marriage) with the child's mother, the fact of recognition of paternity by him may be established in court according to the rules established by the civil procedure legislation, in the order of special proceedings. This fact can be established by the court both in the case when the child was dependent on the person at the time of his death, and earlier if this person recognized himself as his father. Such a fact, taking into account specific circumstances, may also be established by the 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.

According to Article 306 of the CPC, the court establishes facts of legal significance only if it is impossible for the applicant to obtain proper documents certifying these facts in another manner, or if it is impossible to restore lost documents.

The fact that the plaintiff is asking for is of legal importance to her, namely: the decision on the appointment of survivor's benefits and the right to apply for inheritance, i.e. this claim is filed in the interests of a minor child. It is not possible for the plaintiff to establish this fact in any other way.

In such circumstances, the court considers that the requirements for establishing the fact of recognition of paternity must be satisfied. The defendant's side has not presented any evidence refuting the arguments of the plaintiff's side to the court, which is a procedural omission by the party.

At the same time, the applicant unnecessarily requested changes to the record of deeds, since such changes are made when the court decision enters into force upon the applicant's application to the RAGS authorities.

Based on the above and guided by Articles 309, 223-225, 226 of the CPC RK, the court

R E W And L :

B.'s stated demands to S. to establish the fact of recognition of paternity, to make changes to the record, must be partially satisfied.

To establish the fact of recognition of the paternity of S.S., born on August 8, 1962, a native of the Moscow region, who died on December 29, 2015, in relation to the daughter of B.E., born on December 16, 2014, a native of the Moscow region, born to B., born on April 17, 1984.

To refuse to satisfy B.'s claims to the State State Pension Payment Center of the Ministry of Health and Social Development of the Republic of Kazakhstan on establishing the fact of recognition of paternity and making changes to the registration certificate.

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