Petition for review of the final decision of the district court and the decision of the judicial board  

 

To the Judicial Board for Civil Cases

The Supreme Court of the Republic of Kazakhstan

 

plaintiff: A.G. (S.G.A.)

IIN.....

547/1 S. ave., Almaty,

sq. 183, tel. .

 

Representative: lawyer Sarzhanov Galymzhan Turlybekovich

Law and Law Law Firm

BIN 201240021767

79/71 Abylai Khan Ave., office 304, Almaty

cell phone: 87085785758

 

Representative: lawyer Sabit Davletovich Nigmetov

IIN 820125350700

79/71 Abylai Khan Ave., office 304, Almaty

Phone: 87009785755, 87054628284

 

the defendant: Limited Liability Partnership Beineu-Shymkent Gas Pipeline

BIN 110140008803

Almaty, Almaly district, 53 Abylai Khan ave.

Phone: +7 (727) 342 37 15 (office)

fax +7 (727) 342 36 45

 

 

 

the petition for the revision of the law that has entered into force

decisions of the Almaly District Court No. 2 of Almaty dated October 17, 2023 and decisions of the Judicial Board for Civil Cases of the Almaty City Court dated December 7, 2023

 

 

 

On October 17, 2023, the District Court No. 2 of Almaly district of Almaty issued a decision in the civil case No. 7520-23-00-2/15536 on the claim of Amangelda G. to Beineu-Shymkent Gas Pipeline LLP for the recovery of unpaid alimony for the maintenance of minor children. The claim was denied.

Disagreeing with the court's decision, the plaintiff filed an appeal against the decision of the District Court No. 2 of Almaly district of Almaty dated October 17, 2023.

On December 7, 2023, civil case No. 7599-23-00-2a/11240 on the plaintiff's appeal was considered and the decision of the Judicial Board for Civil Cases of the Almaty City Court of the decision of the District Court No. 2 of Almaly district of Almaty dated October 17, 2023 was left unchanged, and the appeal was dismissed.

I disagree with the decisions of the courts of first instance and the court of appeal on the following grounds.

According to Part 5 of Article 438 of the Civil Procedure Code of the Republic of Kazakhstan, the grounds for cassation review of judicial acts that have entered into force, specified in part one of Article 434 of this Code, are significant violations of substantive and procedural law provided for in Article 427 of this Code, which led to the issuance of an illegal judicial act.

I believe that the courts of the first and appellate instance committed violations of the substantive and procedural law of the Republic of Kazakhstan.

According to the court order of the District Court No. 2 of the Auezovsky district of Almaty dated September 26, 2017, alimony payments for the maintenance of three minor children in the amount of 1/2 earnings and (other) income document were collected from Saurambayeva B.K. (debtor) in favor of Saurambayeva G.A. (recoverer) in the amount of ½ earnings and (other) income document monthly, starting from September 21, 2017 and until adulthood.

According to paragraph 3 of Article 76 of the Constitution of the Republic of Kazakhstan, "Decisions, verdicts and other court rulings are binding throughout the Republic." Thus, the court order to recover alimony from Saurambaev B.K. in favor of the plaintiff was subject to mandatory execution by the defendant's accounting department. The court did not apply this rule when considering a civil case.

I would also like to draw attention to the fact that the courts of first instance and appellate instances ignored the provisions of Part 1 of Article 12 of the Law of the Republic of Kazakhstan "On Legal Acts", which clearly states that "If there are contradictions in the norms of normative legal acts of different levels, the norms of a higher-level act apply." All citizens of the Republic of Kazakhstan are aware that the provisions of the Constitution of the Republic of Kazakhstan have the highest legal force and this circumstance is not subject to proof.

In support of the decision to dismiss the claim, the court referred to Article 138 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", however, the court did not take into account the fact that alimony was collected from Saurambayev B.K. according to a court order that was executed in the defendant's accounting department and alimony was subject to retention and transfer to the plaintiff. through the defendant's accounting department. That is, Saurambayev B.K. actually could not fully manage his earnings before deducting child support from him. And in relation to disputed legal relations, the court should have applied the provisions of art.  139 and 140 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", which states that alimony for minor children is collected by the court from their parents monthly in the amount of: for three or more children - half of the earnings and (or) other income of the parents, the list of types of wages and (or) other income that the parents receive and from whom alimony is withheld, approved by the Ministry of Justice of the Republic of Kazakhstan. I believe that the court did not apply the applicable law.

According to paragraph 1 of Article 4 of the Constitution of the Republic of Kazakhstan, the current law in the Republic of Kazakhstan is the norms of the Constitution, its corresponding laws, other normative legal acts, international contractual and other obligations of the Republic, as well as normative decisions of the Constitutional Court and the Supreme Court of the Republic.

According to Part 2 of Article 7 of the Law of the Republic of Kazakhstan "On Legal Acts":

"The main types of regulatory legal acts include:

1) The Constitution of the Republic of Kazakhstan, constitutional laws of the Republic of Kazakhstan, codes of the Republic of Kazakhstan, consolidated laws of the Republic of Kazakhstan, laws of the Republic of Kazakhstan, temporary resolutions of the Government of the Republic of Kazakhstan having the force of law;

2) regulatory legal decrees of the President of the Republic of Kazakhstan;

2-1) regulatory legal acts of the Chairman of the Security Council of the Republic of Kazakhstan;

3) regulatory legal resolutions of the Parliament of the Republic of Kazakhstan and its Chambers;

4) regulatory legal resolutions of the Government of the Republic of Kazakhstan;

5) regulatory rulings of the Constitutional Court of the Republic of Kazakhstan, the Supreme Court of the Republic of Kazakhstan;

6) regulatory legal resolutions of the Central Election Commission of the Republic of Kazakhstan, the Supreme Audit Chamber of the Republic of Kazakhstan, the National Bank of the Republic of Kazakhstan and other central government agencies;

7) regulatory legal orders of the Ministers of the Republic of Kazakhstan and other heads of central government agencies;

8) regulatory legal orders of heads of departments of central government agencies;

9) regulatory legal decisions of maslikhats, regulatory legal decisions of akimats, regulatory legal decisions of akims and regulatory legal decisions of audit commissions."

According to parts 1 and 2 of art. 11 of the Law of the Republic of Kazakhstan "On Legal acts":

"1. All normative legal acts have direct effect, unless otherwise stipulated in the normative legal acts themselves or the acts on their enactment.

2. No additional instructions are required for the application of the regulatory legal acts that have been put into effect."

According to part 2 of art . 93 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs", when foreclosing on wages and other types of income of the debtor, the bailiff, taking into account the requirements of this Law, issues a resolution indicating the amount to be withheld monthly until the awarded amounts are fully recovered, and sends it along with a copy of the enforcement document, stamped with the seal of the territorial department or private bailiff, for execution to the employer with whom the debtor is in an employment relationship, or to a person, from which the debtor receives income.

According to paragraph 5 of Article 10 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs", the decision of the bailiff comes into force from the date of its issuance and is subject to mandatory execution. The court did not apply these rules when considering the case.

According to the Order of the Minister of Justice of the Republic of Kazakhstan dated December 24, 2014 No. 372 "On approval of the list of types of wages and (or) other income from which alimony is deducted for the maintenance of minor children":

"1. Alimony for the maintenance of minor children is withheld from all types of wages (monetary remuneration, maintenance) and other income received by parents in monetary (national and (or) foreign currency), with the exception of income of persons specified in paragraph 2 of this list, including:

1) from the salary accrued to employees for the time actually worked or for the work performed, based on the established official salaries (rates) provided for by the remuneration system

2) from all types of surcharges and allowances provided for by the wage system, as well as from allowances received due to savings within the wage fund, or funds provided for the maintenance of the relevant institution

3) with bonuses (monetary rewards) provided by the remuneration system

4) from all compensation payments, with the exception of payments:

provided for in subparagraph 7) of Article 98 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" dated April 2, 2010 (compensation payments for work in harmful or extreme conditions, as well as monetary amounts paid to citizens affected by environmental disasters or radiation exposure during the elimination of consequences of natural and man-made emergencies)".

According to Article 7 of the Civil Code of the Republic of Kazakhstan, civil rights and obligations arise, change and cease.:

2) from administrative acts entailing civil law consequences by virtue of the legislation of the Republic of Kazakhstan;

3) from a court decision that established civil rights and obligations;

4) as a result of the creation, destruction, acquisition or alienation of property on grounds not prohibited by legislative acts of the Republic of Kazakhstan, as well as the renunciation of property rights;

6) as a result of causing harm to another person, as well as as a result of unjustified acquisition or saving of property at the expense of another person (unjustified enrichment);

7) due to other actions of citizens and legal entities;

8) as a result of events with which the legislation of the Republic of Kazakhstan relates the occurrence of civil consequences.

The court order and the decision of the CHSI in relation to Saurambayev B.K. were executed in the Beineu-Shymkent Gas Pipeline LLP during the period of his employment duties in this LLP.

According to the text of the court order, alimony was collected from the earnings of Saurambaev B.K. Thus, the court and the bailiff imposed the obligation to withhold alimony directly on Saurambaev B.K.'s employer, i.e. on the defendant.

Violation of the legislation of the Republic of Kazakhstan by an employee of the defendant Beineu-Shymkent Gas Pipeline LLP was established by a resolution of the Specialized Interdistrict Court for Administrative Offenses of Almaty dated January 23, 2023, for which S.B. Shabdukarimov, an employee of Beineu-Shymkent Gas Pipeline LLP, was found guilty of committing an administrative offense under Part 1 of art. 670 of the Code of the Republic of Kazakhstan "On Administrative Offenses", the Resolution of the Almaty City Court dated 02/16/2023, the resolution of the Specialized Interdistrict Court for Administrative Offenses of Almaty dated 01/23/2023, remained in force. On sheet 6 of the resolution of the Specialized Interdistrict Court for Administrative Offenses of Almaty dated January 23, 2023, the court stated "Therefore, the court order and the resolution on the confiscation of wages clearly defining the amount of alimony in favor of Saurambayeva G.A. at least 1/2 of the earnings that entered into force were subject to mandatory execution... Shabdukarimov S.B. failed to ensure compliance with the decision of the private bailiff, which was not appealed and entered into force, and violated the rights of the claimant and minor children. This violated both the provisions of the court order and the resolution" (a copy of the resolution is attached to the petition)

The aforementioned judicial acts against S.B. Shabdukarimov were of prejudicial importance due to the provisions of Article 76 of the Civil Procedure Code of the Republic of Kazakhstan. However, the court did not take them into account, thereby violating the provisions of Article 76 of the Civil Procedure Code of the Republic of Kazakhstan.

By independently determining the share of wages to be withheld in favor of the plaintiff, the defendant violated the provisions of the Constitution of the Republic of Kazakhstan on the binding force of court decisions, the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and the Family" on withholding alimony in the amount of half of earnings, the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs", the order of the Minister of Justice RK "On approval of the list of types of wages and (or) other income from which alimony is deducted for the maintenance of minor children". The court did not give a proper legal assessment of this fact, which violated the provisions of Article 6 of the Civil Procedure Code of the Republic of Kazakhstan, which states that the court must strictly comply with the requirements when considering and resolving civil cases. The Constitution of the Republic of Kazakhstan, the constitutional laws of the Republic of Kazakhstan, this Code, and other normative legal acts subject to the application of international treaties of the Republic of Kazakhstan.

Regarding the court's conclusions that the recovery of the unpaid amount of alimony from the defendant may entail unjustified enrichment for the plaintiff. According to paragraph 3) of Article 960 of the Civil Code of the Republic of Kazakhstan, sums of money and other property provided to a citizen, in the absence of bad faith on his part, as a means of subsistence (wages, royalties, compensation for harm to life or health, pensions, alimony, etc.) and used by the acquirer are not subject to return as unjustified enrichment.. Dishonesty on the part of the plaintiff has not been established during the trial, and was not reflected in the court's decision. Thus, the court misinterpreted the norms of Chapter 48 of the Civil Code of the Republic of Kazakhstan (Special part).

Moreover, it was the culpable actions of the defendant's employee, S.B. Shabdukarimov, that led to the fact that the plaintiff largely lost the amount she could have expected with proper execution of the court order and the decision of the accounting department of the defendant.

I also ask you to pay attention to the fact that the defendant transferred all the funds of Saurambayev B.K. not to his accounts, but to the accounts of his common-law wife Dosmagambetova Zh.M., thus depriving me of the opportunity to fully receive my due share of alimony according to the court order. Dosmagambetova Zh.M., living with Saurambaev and running a common household with him, thus unreasonably enriches herself.(there is car insurance, his children go to private school, etc.)

The court did not take into account that Saurambaev B.K. had submitted to the accounting department a notarized consent to transfer money in favor of Dosmagambetova Zh.M., about which the defendant's accounting department refused to provide information to a private bailiff, up to his dismissal, illegally motivating this with bank secrecy. If I had found out about it in time, I would have taken measures to stop the withdrawal of money (the defendant's letters to the private bailiff were submitted, the private bailiff's submission on bringing the debtor to administrative responsibility, etc.).

The accounting department also illegally withheld money from my alimony payments to improve the living conditions of Saurambaev B.K., although such payments are provided only for civil servants and the military. Thus, 3,000 000 tenge was illegally withheld.

The arguments that Saurambayev B.K. resigned are not valid, since it was the defendant who, ignoring the court's decision, without seeking clarification from a private bailiff and other government agencies, arbitrarily distributed alimony using the powers assigned to him. Therefore, he must compensate in a retrogressive manner for the damage caused by his employee, whose guilt has been established by a decree of the Specialized Inter-District Court for Administrative Offenses of the city of Almaty that has entered into force.

I believe that Saurambayev B.K. is also involved in the non-payment of alimony in full, but the fault of the accounting department in the occurrence of debt is obvious in this case, and there was collusion, because Saurambayev B.K. was an employee of the senior management of Beineu-Shymkent Gas Pipeline LLP and had a direct influence on the decisions taken by the defendant's accounting department.

 

According to paragraph 4) of Article 616 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget (Tax Code)", plaintiffs are exempt from paying state duty in courts for alimony claims.

 

Based on the above, I ask the Judicial Board:

- to accept the petition for production;

- to review in cassation the decision of the District Court No. 2 of Almaly district of Almaty dated October 17, 2023, which entered into force, and the decision of the Judicial Board for Civil Cases of the Almaty City Court dated December 7, 2023.

Appendix: a copy of the decision of the Almaly District Court No. 2 of Almaty dated October 17, 2023, a copy of the decision of the Judicial Board for Civil Cases of the Almaty City Court dated December 7, 2023, a copy of the decision of the Specialized Interdistrict Court for Administrative Offenses of Almaty, a copy of the decision of the Almaty City Court, a copy of the submission of a private bailiff on bringing the debtor to administrative responsibility, the response of Beineu-Shymkent Gas Pipeline LLP to a private bailiff, letter from Beineu-Shymkent Gas Pipeline LLP Amangeldy G., power of attorney for representatives, notification of Sarzhanov G.T.'s representative office, notification of Nigmetov S.D.'s representative office, copy of Sarzhanov G.T.'s lawyer's certificate, copy of Nigmetov S.D.'s lawyer's certificate

 

03.06.2024 And

 

Representative

Lawyer                                                            Sarzhanov G.T.

 

 

 

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