Petitions from a Lawyer in Almaty to restore the time limit for filing a complaint
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Semeysky City Court of the East Kazakhstan region, judge ................... 071400,
Semey, Kabanbai Batyr St., 22 8 (7222) 60-10-01, 60-10-33 160206@ sud.kz
from the Defendant: .............. IIN: ……………… Proxy representative: Galymzhan Turlybekovich Sarzhanov
IIN: 850722301036. Almaty, Medeu district,050002, Zhibek Zholy ave., 50, office 202,
Business center Quarter. info@zakonpravo.kz / www.zakonpravo.kz + 7 (708) 578 57 58.
The petition
on the restoration of the time limit for filing an appeal
In your case, the wound was considered in civil case No..... dated October 11, 20.. on the claim of gr. ........., to gr. ........., and gr. ........., on debt collection, in this civil case by you on October 11, 20.. in the premises of the Semeysky City Court of the East Kazakhstan region, under your chairmanship with the participation of a representative of the plaintiff....., having considered this civil case in open court using audio-video recordings, the claims of gr. ........., to gr. ........., to satisfy the debt collection in full. Collect from gr. .........,, gr. ........., in solidarity in favor of gr. ……..., debt in the amount of 7,538,000 tenge.Collect from gr. ........., court costs related to the refund of the state duty of 75,380 tenge and expenses for representative services in the amount of 35,000 tenge, postage in the amount of 1,161 tenge, a total of 111,541 tenge in equity in favor of gr. .........,, 55,771 tenge each.Until the cancellation of the court's decision adopted in a simplified manner in September 20.. between the defendant and the Lawyer of the Almaty City Bar Association, gr. gr. ........., An oral agreement was concluded on the provision of qualified legal assistance. Because he was recommended by respectable reputable people and inspired confidence, after which a power of attorney was written to him for the provision of legal services and the lawyer's services were fully paid for.
After which the lawyer gr. .........,., He was supposed to help solve the problem in a civil case in Semey, according to the claim of Gr. ........., in relation to the defendants, as well as the peaceful settlement of this circumstance of the case.After some time, the lawyer gr. ........., who was supposed to protect the rights of the defendants disappeared, did not answer the phone, rudely ignoring all attempts by the defendant to find out about the circumstances of this civil case, sometimes sending SMS messages about the nearest solution to the case. After that, we sent a complaint to the Almaty lawyer's colleague about the inaction of the lawyer gr. ……...,After the expiration of the time, we sent a petition to the court dated 04/26/20.. for familiarization with the materials of the civil case.
As a result, on May 10, 2018, we reviewed the materials of the civil case. As a result of studying all the case materials, we came to the conclusion that we consider the decision of the court of first instance to be illegal, unjustified and subject to cancellation on the following grounds:The court violated the requirements of Article 152, paragraphs 1, of the CPC RK, where it is stipulated that the Judge returns the statement of claim if the plaintiff has not complied with the pre-trial dispute settlement procedure established by law for this category of cases or stipulated by the parties' agreement and the possibility of applying this procedure has not been lost, as well as Article 279, paragraph 1, of the CPC RK, where the Court may leave the statement of claim without consideration., if the plaintiff has not complied with the pre-trial dispute settlement procedure established by law for this category of cases or stipulated by the contract, and the possibility of applying this procedure has not been lost in this case.
The Plaintiff did not send a claim to the civil case in the order of pre-trial settlement, which is a violation by the plaintiff of the requirements of paragraph 6, art.8, CPC RK.The plaintiff's application does not comply with the requirements of clauses 6, 2, and 148 of the Civil Procedure Code of the Republic of Kazakhstan, where it is established that the application is submitted to the court of first instance in writing or in the form of an electronic document. The application must contain information on compliance with the pre–trial procedure for contacting the defendant, if this is established by law or provided for by a contract. However, this paragraph of the Code was not complied with, also in art. 149, the Civil Procedure Code of the Republic of Kazakhstan, established that the following documents are attached to the statement of claim: documents confirming the circumstances on which the plaintiff bases his claims; documents confirming compliance with the pre-trial dispute settlement procedure, if this procedure is established by law or provided for by contract.
However, the judge, without clarifying all the above-mentioned mandatory provisions of the Law, grossly violated the requirements of paragraphs 1 and 3 of art. 152 of the CPC RK. In this case, according to art. 152 paragraphs 1 and 3 of the Civil Procedure Code of the Republic of Kazakhstan, as well as art.279 paragraph 1 of the Civil Procedure Code of the Republic of Kazakhstan, the court was obliged to return the statement of claim and leave it without consideration.The court violated the requirements of Article 71 of the CPC RK, where the Legislator explained, The provision of evidence is carried out by a judge when preparing a case for trial or when considering a case in a court of first instance no later than three working days from the date of receipt of the application and in Article 163 of paragraph 2 of subparagraphs 1 and 4 of the CPC RK, After accepting the application in court proceedings and initiating a civil case, the judge prepares the case for trial in order to to ensure its timely and correct resolution. The tasks of preparing a civil case for trial, which are mandatory for each case, are: clarifying the circumstances relevant to the proper resolution of the case; determining the evidence that each party must provide in support of its claims or objections; in addition to
The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 13, 20.., No. 21, On the preparation of civil cases for trial, states that a judge must, even when accepting an application for court proceedings, strictly comply with the requirements of Articles 148 and 149 of the CPC on substantiation of statements submitted to the court with evidence – which, unfortunately, the court did not comply with.Thus, the receipt attached by the plaintiff to the statement of claim is not proof that the defendants owe the plaintiff. The plaintiff's claims for a debt receipt in the amount of 8,312,000 tenge are not subject to validity because The defendants had not received this money at the time of writing the receipt and in such an amount. If you read the Receipt in detail, it says: "I, gr. .........,, ID card №............. from 26.06.... Ministry of Internal Affairs of the Republic of Kazakhstan, residing at Semey, ul. ..............., And my husband, ............., ID card №................. dated 17.09... Ministry of Internal Affairs of the Republic of Kazakhstan, residing at Semey, ul. .................., We undertake to repay the 8,312,000 (eight million three hundred and twelve thousand) tenge we borrowed (the receipts were written earlier) as soon as the funds arrive. until August 30, 2008.
In case of sale of our production facilities, refund the entire amount. The receipt was drawn up in his own hand, in the presence of gr. .........,."., but there are other previously written receipts, which indicate other amounts that the court did not pay attention to.All payments allegedly made by the defendants to the accounts of gr. ........., They do not confirm the recognition of the debt by the defendants in the amount of 8,312,000 tenge, since there are no payment statements for the listed amounts in the materials of the civil case.All payments in favor of the Plaintiff were made according to receipts written earlier on 30.06.2008. Most of the debt was returned by the Defendants to gr. .........,., in cash in her office in the Currency Transit Bank building. The defendants recorded each payment on the reverse sides of the receipts with a corresponding entry and signatures, which the plaintiff intentionally omits and misleads the court.The receipt dated 30.06.20.., attached to the statement of claim, does not say that the defendants received the money. In this receipt, there is only a reference to a previously written receipt. However, these receipts are missing from the case file, which is a violation of the requirements of art.149 paragraph4 of the CPC RK, art.148.p5 CPC RK,
72 p.1 of the CPC RK and art.73 p.1 of the CPC RK., and not the attentiveness of the judge.Thus, since the plaintiff did not provide all the documents confirming the circumstances on which the plaintiff bases the claims, the receipt dated 30.06.20.. attached to the statement of claim DOES NOT CONFIRM the fact that the defendants received funds in the amount of 8,312,000 tenge. Consequently, the court, without properly examining all the evidence, without taking into account the previously repaid payments of the defendants, without requesting all supporting documents from the plaintiff, violated the requirement of art.71 p.1 of the CPC RK and art.163 p.2 of paragraphs 1 and 4 of the CPC RK.When examining the Commitment Receipt, we see in the upper right corner the numbers 30.06.08 are indicated, to which the plaintiff and the court noted that this receipt was written on June 30, 20..6 of the Civil Code of the Republic of Kazakhstan, the norms of civil legislation must be interpreted in accordance with the literal meaning of their verbal expression. If there is a possibility of different understanding of the words used in the text of legislative norms, preference is given to an understanding that meets the provisions of the Constitution of the Republic of Kazakhstan and the basic principles of civil legislation. When clarifying the exact meaning of the norm of civil legislation, it is necessary to take into account the historical conditions under which it was put into effect and its interpretation in judicial practice, And What "civil legislation" is, Article 3 explains to us. Civil Code of the Republic of Kazakhstan Civil legislation of the Republic of Kazakhstan is based on the Constitution of the Republic of Kazakhstan, etc. and Civil relations may be regulated by customs, including business practices, if they do not contradict the civil legislation in force on the territory of the Republic of Kazakhstan.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
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