Private complaint to the Board of Appeal against the court ruling on securing the claim
The Board of Appeal for Civil Cases
and administrative cases of the Almaty City Court
Almaty, 050000, Kazybek Bi street, 66.
0201@sud.kz
from the Defendant:
S.E.S. born on 08/25/1993. IIN: .
residing at the address: 87 B. Street, Almaty.
S.P.K., born on 02/20/1992, IIN: . residing at:
Almaty city, A. Street, building No. 140, apartment No. 296
Representative by proxy:
Law and Law Law Firm
BIN 201240021767
79 Abylai Khan Ave., office 304, Almaty.
info@zakonpravo.kz / www.zakonpravo.kz
+ 7 727 978 5755; +7 708 578 5758.
Plaintiff: G.O.A. born on 05/13/1974, residing at:
Russian Federation, Republic of Tatarstan, Tukaevsky .
Private complaint
based on the court ruling of December 25, 2023
On December 25, 2023, the judge of the District court No. 2 of the Almaly district of Almaty, Bakieva S.A., in the Civil case No. 7520-23-00-2/24027, having considered the application of the plaintiff's representative, G.M.A., G.O.A., to secure a claim against the defendants against S.E.S., S.P.K. with the involvement of third parties, the private notary of Almaty, Seitzhanova Gulnara Zhusuphanovna and K.E.P. on the recognition of the transaction as invalid and the recovery of the amount, the Judge Determined - The Petition To satisfy the plaintiff about securing the claim.
In securing the claim, to seize the movable and immovable property of the defendants:
S.E.S., IIN: . and S.P.K. IIN: ., whatever it is expressed in and wherever it is located, within the amount of the claim in the amount of 24,900,000 tenge.
Dear Court, we do not agree with the definition, as it does not correspond to any morality and the meaning of the law. In this case, in accordance with the purchase and sale agreement dated July 15, 2022 (hereinafter referred to as the agreement), S.E.S., with the consent of S.P.K.'s wife, sold to G.O.A. a Toyota Land Cruiser 200 car, manufactured in 2016, identification number JTMCV02J504180477, state registration number 752MCZ02. (hereinafter referred to as the car). On July 15, 2022, this agreement was certified by a private notary of Almaty, Gulnara Zhusupkhanovna Seitzhanova, registered in the register for No. 2334.
In civil law relations, each party must fulfill its obligations under the contract, and the defendant's contractual obligations were fulfilled properly, where, through authorized authorities, the above-mentioned car was removed from the state database for registration of vehicles and then a transit number was assigned and safely crossed the state border of the Republic of Kazakhstan.
According to the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated January 12, 2009 No. 2, on the adoption of interim measures in civil cases, and in accordance with Article 155 of the CPC, the plaintiff must indicate in the application specific arguments that failure to take interim measures may make it difficult or impossible to enforce the judicial act. However, we believe that the Plaintiff did not provide exhaustive arguments for taking Interim Measures, but limited himself to well-known arguments, in addition, the Plaintiff's arguments in this case are not justified and legitimate, while the Defendant fulfilled his obligations.
Normative resolution of the Supreme Court of the Republic of Kazakhstan dated March 20, 2003 No. 2. On the application by the courts of certain norms of civil procedure legislation, the above-mentioned statement of claim is submitted to the court of first instance in writing or in the form of an electronic document and the application must specify: the name of the court to which the statement of claim is filed, the data and addresses of the parties to the proceedings, as well as the circumstances on which the plaintiff bases his claims, as well as the content of evidence confirming these circumstances and other circumstances according to the above article.
Article 6. The Civil Code of the Republic of Kazakhstan "Interpretation of the norms of civil legislation" stipulates: The norms of civil legislation must be interpreted in accordance with the literal meaning of their verbal expression.
Article 47. Civil Procedure Code of the Republic of Kazakhstan "Parties", Parties in civil proceedings
the plaintiff and the defendant are present. 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.
The defendants are citizens and legal entities against whom a claim has been filed. In cases stipulated by law, organizations that are not legal entities may also be parties.
However, the above requirements of the Civil Procedure Code of the Republic of Kazakhstan have not been met, as the Statement of Claim indicates an Improper Defendant. Thus, an erroneous interpretation on the part of the Plaintiff of the rules of procedural law led to a violation of the civil rights of S.P.K..
The plaintiff's actions violate Articles 4 and 5 of the CPC RK Tasks and Principles of civil proceedings. Violation of the principles of civil proceedings, depending on its nature and materiality, entails the cancellation of judicial acts. The tasks of civil proceedings are also the protection and restoration of violated or disputed rights, freedoms and legitimate interests of citizens, the state and legal entities, respect for the rule of law in civil traffic, ensuring full, timely, fair consideration and resolution of the case, facilitating the peaceful settlement of disputes, preventing offenses and forming a respectful attitude towards the law and the court in society.
That is, in the lawsuit, the Plaintiff indicated that S.E.Se. with the consent of S.P. K.'s wife, they sold G.O.A. a Toyota Land Cruiser 200 car, in this case, an erroneous interpretation of the norms of procedural law by the Plaintiff led to a violation of S.P.K.'s civil rights..
Article 50 of the CPC RK. The "Replacement of an improper defendant" provides for
Replacement of the defendant is allowed before the start of consideration of the case on the merits in the court of first instance. The court, having established that the claim was brought against the wrong person who should be responsible for the claim, may, at the request of the plaintiff, without terminating the case, allow the replacement of the improper defendant with the proper one.
After the replacement of an improper defendant, the preparation of the case and its consideration at the court session are carried out from the very beginning. The term of consideration of the case is calculated from the date of completion of the preparation of the case for trial. If the plaintiff does not agree to replace the improper defendant with the proper defendant, the court considers and resolves the case according to the claim.
By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests.
In accordance with Article 8 of the CPC, everyone has the right to apply to the court for protection of violated or disputed constitutional rights, freedoms or protected interests.
123 of the CPC RK In cases where the last day of the term falls on a non-working day, the day of the end of the term, calculated in years, months and days, is considered to be the next working day. Thus, the final version of the court's ruling on satisfaction of the petition for acceptance of the claim security dated December 25, 2023 was released the next day, that is, on December 26, 2023, and is subject to appeal within ten working days from the date of the final ruling.
The Universal Declaration of Human Rights (articles 7, 8 and 10), the International Covenant on Civil and Political Rights (article 14) and the Convention for the Protection of Human Rights and Fundamental Freedoms (article 6) establish that everyone is equal before the law and the courts and that everyone has the right to a fair trial in determining their civil rights and duties. and the public hearing of the case within a reasonable time by a competent, independent and impartial court established by law.
According to Article 161 of the Civil Procedure Code of the Republic of Kazakhstan, where a private complaint can be filed against rulings on the issues of securing a claim, a petition has been brought by the prosecutor to the court of appeal, whose decision is final.
On the grounds of the above and guided by art. 161 of the CPC RK,
I ask the court
To cancel the ruling of the judge of the district court No. 2 of Almaly district of Almaty Bakiyeva S.A., dated December 25, 2023.
With respect
Representative by proxy: _________/Sarzhanov G.T.
"___"___________2024 G.
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