Dispute over the right arising from property or binding legal relations, the court issues a ruling on the consideration of the case in the order of the claim proceedings.
B. applied to the court to the Main Military Prosecutor's Office of the Republic of Kazakhstan (hereinafter referred to as the Main Military Prosecutor's Office) for recognition of illegal actions for non–transfer of mandatory pension contributions to an individual pension account for the period from May 2001 to February 2009, transfer of arrears in the amount of 1,113,441 tenge. B. motivated his demands by the fact that the unlawful actions of the officials of the State Institution violated his right to receive mandatory pension contributions, and therefore caused him material damage. By the decision of the Military Court of the Almaty garrison of May 3, 2013, the satisfaction of B.'s stated claims was denied. By the decision of the Court of Appeal for Civil and Administrative Cases of the Military Court dated June 19, 2013, the decision of the court of first instance remained unchanged. By the decision of the Cassation Judicial Board of the Military Court of December 3, 2013, the decision of the appellate instance of June 19, 2013 was left unchanged. In the petition, the applicant asked for the annulment of the judicial acts that had taken place and the referral of the case for a new hearing, pointing out violations of substantive and procedural law committed by the courts of lower instances.
The dispute over the right arising from property or binding legal relations, the court issues a ruling on the consideration of the case in the order of the claim proceedings.
Having examined the materials of the civil case and the arguments of the petition, the supervisory judicial board of the Supreme Court of the Republic of Kazakhstan granted the petition, annulled the above judicial acts and sent the case for reconsideration to the court of appeal on the following grounds. It follows from the case file that by order of the Chief Military Prosecutor No. 174 l/s dated April 30, 2010, Colonel B., who served in the military Prosecutor's Office from March 6, 1996 to April 30, 2010, was dismissed from the military Prosecutor's office and from military service in the reserve for health reasons in accordance with subparagraph 3) paragraph 1 of Article 37 of the Law "On Military Duty and Military Service" with a length of service of 15 years, 11 months, and 2 days. In accordance with paragraph 4 of Article 65 of the Law "On Pension Provision in the Republic of Kazakhstan" dated June 20, 1997, for military personnel, employees of special state and law enforcement agencies maintained at the expense of budgetary funds who, as of January 1, 1998, have less than ten years of military service and service in law enforcement agencies, the procedure for mandatory pension contributions to the accumulative pension fund in the amount of twenty percent of the salary, established by paragraph 2 of Article 63 of the said Law to an individual pension account at the depositor's choice at the expense of budgetary funds. From the provided transcript of the calculation of 20% of mandatory pension contributions from the amount of salary for the period from May 2001 to December 2008, it follows that B.'s mandatory pension contributions for the specified period amounted to 1,113,441 tenge, which were not transferred by the defendant to the pension fund.This fact was not disputed by the parties. The court of first instance, refusing to satisfy the claims, proceeded from the fact that the applicant had missed the deadline for applying to the court, established by part one of Article 280 of the CPC, without concluding on the merits of the claims. The court has not given a legal assessment of the evidence presented, the decision does not conclude on the rights and obligations of the parties, and the arguments for which the court rejects certain evidence are not indicated. The appeal and cassation boards, leaving the court's decision unchanged, agreed with the conclusions of the court of first instance. These conclusions of the court are illegal because they are based on a misinterpretation of the rules of procedural law.
In accordance with paragraph 9 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2010 No. 20 "On certain issues of application by courts of the Norms of Chapter 27 of the Civil Procedure Code of the Republic of Kazakhstan", civil cases on applications filed in accordance with Chapter 27 of the CPC arise from public legal relations and are considered in the order of special claim proceedings, with the exception of cases arising from property and contractual legal relations, which are considered only in the order of claim proceedings. In the event of a dispute over the right arising from property or binding legal relations, the court, in accordance with the second part of Article 290 of the CPC, issues a ruling on the consideration of the case in the order of claim proceedings. It follows from the case file that in this case the dispute arises from a legal relationship of obligations and is subject to consideration in the order of claim proceedings. However, the court of first instance, in violation of the above-mentioned requirements of the CPC and the Normative Resolution of the Supreme Court of the Republic of Kazakhstan, did not issue a ruling on the consideration of the case by way of claim proceedings, incorrectly applied the time limit set by part one of Article 280 of the CPC to B.'s claims to be considered by way of claim, that is, the dispute was not substantially resolved.
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