On recognition as illegal and cancellation of the re-registration order

No.6001-23-00-6ap/874 (2) dated 08/15/2023

Plaintiff: K.Z.

The defendants: NAO "Government for Citizens State Corporation", Russian State Institution "Interdistrict Department of Justice of the Department of Justice of the Region of the Ministry of Justice of the Republic of Kazakhstan"

Interested parties: LLP "K", R.S., A.A., S.T., S.A., A.A., and others

The subject of the dispute: on the recognition of the illegal and cancellation of the order on the re-registration of LLP "K"

Review of the cassation complaints of the plaintiff and interested parties.

PLOT: K.Z. filed a lawsuit against the Department of Justice, arguing that the re-registration of LLP "K" was carried out in violation of substantive law.

Judicial acts:

1st instance: the claim is satisfied.

Appeal: the decision of the court of first instance is overturned, the claim is returned.

Cassation: the decision of the appeal was overturned, with the referral of the case for a new hearing to the court of appeal in a different composition of the court.

Conclusions: The Court of First Instance, satisfying the claim, concluded that the Department of Justice did not verify the will of the participants of the partnership, re-registered LLP "K" on the basis of purchase and sale agreements that were not notarized, thereby violating the norms of paragraph 4 of Article 7 of the Law on Business Partnerships, as well as paragraph 9 of the Standard of Public Services.

The Court of appeal, overturning the decision of the court of first instance and returning the claim, indicated that the plaintiff had missed the procedural deadline for its presentation to the court.

The Judicial Board considers that the conclusions of the court of appeal are unlawful and do not comply with the requirements of the procedural law.

It was established that the court of first instance restored the deadline for filing a claim, as the plaintiff became aware of the violated right from the response of the branch of the State Corporation for the region dated April 25, 2022.

In accordance with subparagraph 2) In the first part of Article 143 of the CPC (Chapter 21), the court finds out the reasons for missing the deadline and resolves the issue of restoring the missed deadline. In case of refusal to restore the missed deadline, the claim is returned.

According to the third part of Article 1 of the CPC, the provisions of the Civil Procedure Code of the Republic of Kazakhstan are applied in administrative proceedings, unless otherwise provided for by this Code.

By virtue of part seven of Article 126 of the CPC, the court's ruling on extending or restoring the procedural period is not subject to appeal or review at the request of the prosecutor.

Thus, it follows from the requirements of the above-mentioned norms of the current procedural legislation that the decision of the court of first instance to restore the time limit for filing a claim cannot be reviewed by a court of a higher instance.

Moreover, Article 424 of the CPC provides for an exhaustive list of grounds on which the court of appeal may overturn the decision of the court of first instance with rulings on the termination of the case or the return of the claim without consideration.

The return of the claim due to the omission of the procedural period from the stage of appeal consideration is not provided for by the specified norm, as well as by the norms of the APPC.

The court of appeal's application of the fifth part of Article 136 of the CPC to a disputed legal relationship is erroneous, since the plaintiff, as a participant in the LLP, was a participant in the administrative procedure and has the right to appeal the defendant's actions.

 

 

 

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