This article is devoted to the features of disposal of legal cases of special proceeding in civil procedural law. The basic problems arising by disposal of legal cases of special proceeding are considered. The author analyzes the operating civil legislation on special proceeding as one of kinds of civil legal proceedings. The questions arising by disposal of legal proceeding about adoption, and also affairs about the international adoption are investigated. The attention to the problems connected with complaints to notarial actions or on refusal in their fulfillment is paid. Various theoretical positions about considered legal relations are exposed to the analysis also.
In civil procedural law quite close attention is paid to problems of institute of special proceeding. However expressed opinions about subject of judicial protection in cases of special proceeding are debatable.
Doctrinal opinions to the solution of an analyzed problem of special proceeding subject began to develop to the middle of the 60th years of the XX century. Practically at the same time professor K. S.Yudelson and N. B. Zeyder noted that the law carries to number of cases raised in protection of «interest protected by the law», all cases of special proceeding therefore in cases of this category interest protected by the law acts as protection subject always, but not the subjective right.
At the same time other point of view on this problem was put forward and proved. In particular, R.Ye.Gukasyan notes that in special proceeding cases, as rule, it is a question not of protection of the right, but about protection of interest protected by the law, and in certain cases the subjective substantive law acts also as a subject of judicial protection, for example at the solution of question on property recognition ownerless and its transfer to state or collective farm property as the court by the judgment not only establishes the fact of recognition of property ownerless, but also decides its legal destiny.
This opinion is finally fixed further by R.Ye.Gukasyan who supplements the list of special proceeding cases, in which subject of judicial protection is subjective substantive law, instead of interest protected by the law (cases on establishment of the fact of possession by a structure on the property right). It is possible to point and to later works in which the point of view about existence of dualism of subject of judicial protection located in special proceeding cases. Division of special proceeding cases into two categories lies in the basis of such point of view:
- Cases on which the court establishes this or that legal fact, thereby promotes applicants in acquisition of the subjective rights and this most protects their legitimate interests;
- Cases on existence or absence confirmation at applicants of the unchallenged subjective rights. And cases on establishment of the fact of possession by a structure on the property right and about property recognition by the ownerless carry to the second type of cases of special We see that the specified opinion, in effect, far isn't so various with R.Ye.Gukasyan's position as it could seem at first sight. On the contrary, between them not only there is a known communication, but the second can even be called simple updating of the first. The main views of subject of judicial protection in special proceeding cases are that.
Thus, it is possible to speak definitely about existence of double opinion in the science to definition of subject of judicial protection in special proceeding cases: wide and narrow. The scientists adhering to a wide opinion to definition of subject of judicial protection in special proceeding cases come to conclusion that the law carries to number of the cases raised in protection of «legitimate interest», all special proceeding cases (K.S.Yudelson, N.B. Zeyder, D.M. Chechot). For narrow opinion is characteristic to consider a subject of judicial protection in special proceeding cases relating to separate categories of civil cases (R.Ye. Gukasyan) when subject of judicial protection (the subjective substantive law or legitimate interest) is defined relating to disposal of concrete category of cases [1].
There is a problem, being that law enforcement officials don't consider interested persons as the obligatory persons participating in case. R.F. Kallistratova in 1958 wrote about existence «the harmful tendency to consideration of similar cases without call of all interested persons» [2; 89].
A.D. Zolotukhin writes about existence of this problem in his dissertation who specifies that «that other interested persons are potential respondents (M.S.Shakaryan). Only other interested persons can help to define to court establishment of dispute on the right at emergence of dispute on the fact. Participation of other interested persons is defined by the legislator as a rule of special procedure. It follows from this that attraction into process of other interested persons is the obligatory rule defined as a condition» [3; 55].
As it is noted in the theory of civil procedural law, the whole list of cases is wrongly included in structure of special proceeding. The mistake is that case about restriction of legal capacity of the citizen, about recognition of the citizen incapacitated, about restriction or deprivation of the minor at the age from 14 to 18 years of the right independently to dispose of his income; about compulsory hospitalization of citizens in psychiatric hospital and about compulsory psychiatric survey, about introduction of corrections or changes in civil registration, about contest of commited notarial actions or refusal in their commission – initially comprise dispute on the subjective right: civil or public. Therefore, they should be carried respectively to claim proceeding or to proceeding on the cases arising from public legal relationship.
As to the judgment it is necessary to note that, any judgment possesses subjective borders, validity of the judgment extends only on the persons participating in case — «Res inter alios acta aliis neque nocere, neque prodesse potest». The judgment of the special procedure doesn't create prejudice for the persons not involved in adjudication. The person participating in procedure of special proceeding isn't released in other process from averment of circumstances established in procedure of special proceeding.
For a long time scientists of civil procedural law noted that judicial act which has been taken out within special procedure, doesn't create prejudice in disputes on the right with participation of other persons as existence of dispute on the right would interfere to disposal of case in special procedure. Thus, «proofs» extracted within special procedure don't create prejudice in dispute on the right. [4; 70]
At first sight, it deprives of need of appeal of such judicial acts, but only at first sight as sometimes within special procedure cases which shouldn't be considered within special procedure, for example cases on recognition of information materials by the extremist are considered. Therefore the appeal of the judicial act and deprivation of its all-obligation in some cases is the unique effective remedy of protection.
A number of civil procedural scientists consider possibility of restoration of broken rights of the persons which have not been involved in adjudication, by filing of application about revision on again opened circumstances.
For lack of standard regulation of filing of application about revision on again opened circumstances the persons who have not been involved in adjudication, possibility of protection of the rights in such a way remains more theoretical, than practical.
Though it is necessary to notice that filing of application about revision on again opened circumstances looks faster means of restoration of broken rights. When the applicant hid existence of dispute on the right and presence of interested persons from court, the appeal to court of the first instance of the interested person looks more preferable [5; 218].
Cases of special proceeding are various according to the contents, problems connected with these cases are various also.
In our country one of problems the adoption problem is. Protection of the rights and protection of legitimate interests of children, including orphaned children and children without parental custody, is one of the main priorities of policy of our state.
For example, accepting the statement for adoption, the court checks, whether the statement corresponds on form and content to requirements, according to civil procedural legislation. At the same time, on the basis of specifics of cases of this category, it is necessary to pay attention to existence in the statement of data for adoptive parents, children which they wish to adopt, their parents, requests for possible changes in birth record of adopted children, and also circumstances with which the law connects possibility to be the adoptive parent, proofs confirming them with the annex to the statement of necessary documents.
The development of the modern world community doing by transparent borders between the states, freedom of communication between people of the different countries, nationalities, ethnic groups leads to growth of interest and to our country, including in questions of the international adoption. Adoptive parents are citizens of the USA, Canada, Germany, Spain and the neighboring countries. The priority in questions of adoption is given to citizens of the Republic of Kazakhstan who have the right to adopt the child from the moment of definition of his status as without parental custody.
The international adoption as one of ways of protection of the right of child on upbringing in family, has development and in Kazakhstan. Adoption by foreigners of children without parental custody is allowed only in those cases if it is not obviously possible to transfer these children to upbringing to the Kazakhstan citizens who are constantly living in the territory of Kazakhstan or on adoption to relatives of children irrespective of nationality. Adoption is allowed concerning minor children only in their interests.
The court is obliged within three days from the date of the introduction in validity of judgment about adoption of the child to send an extract from this judgment to Civil Status Registration Office and tutorship and guardianship authority in a place of pronouncement of the judgment.
It is necessary to pay attention that adoption — questions which are extremely delicate and cause the greatest response in the hearts of people. Therefore it is especially important, that all procedure on transition of children to new families occurred in strict accordance with legislation requirements, and the main thing — taking into account the rights and interests of children.
The imperfect Kazakhstan legislation on the international adoption allows possibility of illegal export of the Kazakhstan children abroad. Offered standards of the code «About marriage (matrimony) and family» are urged to solve this problem [6].
In Kazakhstan problem of illegal export of orphan children abroad already long time excites the public, causing concernment on the occasion of further destiny of the adopted kids.
By the Kazakhstan legislation adoption of children by foreign citizens is allowed at observance of a number of conditions, personal participation of future parents in a choice of the child, collection of information and paperwork.
In case of cancellation of the adoption made by foreign citizens there are questions how properly to hand over to the foreign adoptive parents living in the country with which the contract on mutual assistance on family cases isn't signed, copies of the statement and other documents, how properly to inform them on time and an adjudication place, how to return the child back to the country in case of cancellation of the judgment on establishment adoption. Answers to the put questions would allow excluding cases of transfer of children to the persons which are not meeting requirements shown to adoptive parents.
The legislation of majority of countries uses elements of introduction to the personal law of the adoptive parent and adopted in a combination with each other; sometimes it is directly pointed to application and that and other law (for example, in Hungary) [7; 399].
Children, thus, receive as though double protection — and by rules of the foreign legislation (the law of the country of nationality of the adoptive parent), and by rules of the Hungarian legislation. If requirements of this or those of these laws aren’t observed, adoption can't take place. The conflict rule of the Code about marriage (cohabitation) and family of the RK is unilateral; it extends only on cases of regulation of a subject to application of family law at adoption of the Kazakhstan children by foreigners in Kazakhstan.
The volume of this conflict rule, i.e. circle of the relations on which it extends, is defined in the most this rule by a way of renvoi to provisions concrete articles of the Code about marriage (cohabitation) and family of the RK. But here it is necessary to mean that the list of articles of Code about marriage (cohabitation) and family of the RK, which observance of rules demands Code about marriage (cohabitation) and family of the RK, includes also articles containing rules, having the procedural character, relating to procedure of adoption; relating to such relations the conflict question doesn't arise at all.
It is a question, in particular, about regulation of an order of disposal by court of cases on adoption; order of the accounting of children who are subject to adoption. Therefore articles which are given in the list of Code about marriage (cohabitation) and family of the RK it is necessary to divide into two categories, allocating what define the sphere of action of considered conflict rule. It is rules defining:
First, possibility of the person to be adoptive parent. So, in Kazakhstan it is necessary: to consider moral and other personal qualities of the adoptive parent (the circumstances characterizing behavior of the applicant on work, in a life, criminal record existence for deliberate crimes, etc.), a state of his health.
Secondly, consent of parents and, probably, other persons on adoption of the child (conditions of consent receiving, its form, the right to withdraw consent, possibility to dispense with such consent).
Thirdly, consent of the adopted child to adoption. Fourthly, possibility of the child to be adopted.
Fifthly, possibility of cancellation of adoption of the child. It is not mentioned regulations of name, patronymic and surname of the adopted child, change of date and a place of his birth, record of adoptive parents as parents of adopted, legal consequences of adoption of the child, the bases and consequences of cancellation of adoption.
The legislator wasn't limited to the general instruction on application of the Kazakhstan family law at adoption in Kazakhstan of Kazakhstan children by foreigners, and considered necessary to point directly to the corresponding articles of the Code about marriage (cohabitation) and family of the RK, hardly it is possible to extend action of this conflict rule to the relations which are falling outside the limits of the provided list of articles.
The question of the law which is subject to application to cancellation of adoption is especially important in this regard, as in some countries (for example, in Great Britain, France, the USA) reorganization of the child in other family provided but not adoption cancellation at the initiative of the adoptive parent.
In practice the question arises at receipt in Kazakhstan courts of statements of foreigners adoptive parents about cancellation of adoption made by Kazakhstan court earlier, in connection with the defined impossibility of adaptation of the child in their family. In our opinion, from the requirement of the law about application to cancellation of adoption of adopted legislation of country of nationality follows that the Kazakhstan courts should make judgments about adoption cancellation with return of the child to an orphan home.
Thus, the situation on a problem of the international adoption remains open, despite long disputes of the various parties. The imperfect legislation on this problem gives the chance to each participant of process of the international adoption to use loopholes and incorrectness of the law in their purposes and as a whole promotes illegal export of the Kazakhstan children abroad. Absence in the law of the corresponding points, in reference to activity of the international agencies in the territory of Kazakhstan, discredits positive activity of legally operating agencies assisting sick children.
Equally important problem is the problem of incapacitation and restriction of legal capacity. Civil capability is defined in the law as ability of the citizen by his actions to get the civil rights and to create for himself civil duties.
To possess capability — means to have ability personally (through the representative) to make various legal actions: to sign contracts, to issue powers of attorney, etc., and also to be responsible for the done property harm (damage or destruction of another's property, health damage, etc.), for default of contractual and other duties.
On this basis, it is considered to be that capability includes, first, ability to transactions (bargaining power) and, secondly, ability to bear responsibility for wrongful actions (passive dispositive capacity).
However in determination of capability of citizens, it is not told about ability of the citizen by the actions to carry out the civil rights and duties. It is possible to consider it as imperfection of the specified norm for if the citizen can independently get the right; behind it is necessary to recognize and ability to carry out it. Value of the called category is defined by that capability legally provides active participation of the person in an economic turn, economic life, realization of the rights to possessions, first of all the property rights, and also the personal non-property rights [8; 79–82].
Therefore, the category of capability of citizens presents great value owing to that is legal means of expression of freedom of «sovereignty» of the person in the sphere of the property and personal non-property relations. Court, having established that the members of the family who have submitted the application, acted unfairly for the purpose of obviously unreasonable restriction or deprivation of capability of the citizen, collects from them all court costs.
The judgment by which the citizen is recognized restricted of legal capacity or incapacitated, is the basis for appointment by Child Protection Services to restricted of legal capacity — the curator, and incapacitated — the trustee.
It is difficult to recognize citizen incapacitated in judicial order. Interested persons should show conclusive proofs of that this measure is really necessary. And to cancel recognition of the person incapacitated (restricted of legal capacity) even more difficultly [9; 78].
When the interested person asks to limit capability of his relative and later in the statement asks to cancel restriction of legal capacity. It turns out that they can be covered in a case when someone from relatives turns something to advantage, for example, that citizen temporarily (for example, at the conclusion of the important transaction) was recognized incapacitated and couldn't prevent of. It follows from this that it is necessary to strengthen an order of such measures.
Complaints to notarial actions or to refusal in their commission are too one of cases considered as special proceeding.
Along with loopholes in the legislation and collisions in legal regulation of the ground relations the order is insufficiently accurately stated. At the certificate of transactions with real estate notaries apply standards of the Civil Code of the RK, the Ground Code of the RK, the code of the RK «About marriage (matrimony) and family», the Law of the RK «About notariate», Rules of commission of notarial actions by notaries, Rules on notarial correspondence in the Republic of Kazakhstan, and other legislation. The analysis of notarial practice testifies that at the certificate of transactions with real estate notaries correctly apply standards of the specified laws.
Contracts make sure according to the general rules of the certificate of the transactions, provided by Rules of commission of notarial actions by notaries. Notaries will obtain on demand all necessary documents for the certificate of transactions, namely documents of title on real estate objects, certificates of the registered rights (encumbrances) on real estate and its technical characteristics, in necessary cases and consent of owners [10].
At the same time, at the certificate of separate categories of transactions with real estate there are problems which, first of all, are connected with a current state of the legislation of the Republic of Kazakhstan regulating that or other branch. Imperfection of the legislation also takes place and in questions of lodgement with powers of notaries which testify that the legislator doesn't allocate the notary with powers and doesn't provide possibility to use the right as the tool for high-quality registration of the transaction.
So, at the certificate of contracts of property disposition the lack of consent of the spouse on registration of the transaction will be violation which is necessary for obtaining on demand. In such cases the transactions admit as nude because of false suggestion of the notary that the property isn't participatory property. Notaries aren't allocated with powers on clarification of circumstances of marital status at property acquisition. The notary has no guarantees of receiving reliable information at the solution of this question. An important question at the certificate of transactions is also establishment of capability of the citizen.
At the certificate of transactions the notary must check capability of individuals and capacity of the legal entities participating in transactions is checked too. In case of transaction by the representative his powers are checked. Clarification of capacity of the individual, that is ability the actions to get and carry out his own civil rights, to execute them, consists in authentic establishment of his age, and in certain cases — receiving reliable information about a condition of his psychological health. The condition of mental health of the person is criterion of an assessment of his capability.
The existence of symptoms of any mental disorder or representation to the notary of the reference on a mental disease available for it at the person can't be the basis for refusal by the notary in commission of notarial actions concerning this person. The citizen, who owing to a mental disorder can't understand value of the actions and direct them, can be recognized as incapacitated by the court.
Thus, before removal by court of the judgment on recognition of the person incapacitated, in a type of the specified circumstances, this person has the right to make legally significant actions, including directly addressing to the notary for commission of notarial actions.
If the notary has bases to assume that someone from participants of the transaction owing to mental illness or imbecility can't understand value of the actions or direct them owing to alcohol or narcotic substances misuse puts a family in difficult financial position, and data on recognition of the person by the incapacitated aren't available. After clarification of a question of lack of judgment, the notary reports about the assumption to one of persons or one of the organizations which can bring the question of recognition of the person incapacitated or restricted of legal capacity before court.
In practice of notaries the violations allowed by bodies, giving out the documents establishing the property right meet. The notary in this case believes that provided for transaction registration documents are lawful and proved. Carrying out activity, notaries quite often meet illiteracy and misunderstanding not only citizens, but also representatives of the organizations, including those who should carry out protection of the rights and legitimate interests of citizens.
In the specified cases there is a question of the status of the private notary. So far the question of notariate recognition by the public and legal institute, urged to provide equation of the state and private interests in the sphere of the civil-law relations isn't solved. The private notary should receive the status of the independent representative of the state submitting in implementation of functions assigned to him only to the law. It will mean that the state authorized to carry out of obligations and functions under full professional and property responsibility of the notary.
Such recognition will allow the notary to have the stamp with the image of the State Emblem. It is necessary to eliminate an available contradiction between the functions which are actually carried out by notaries and legal status of the notary as protection of the rights and legitimate interests of citizens and legal entities by commission of notarial actions is function of the state.
Without stopping on questions of the certificate of separate types of transactions, it would be desirable to pay attention to the problems connected with the certificate by notaries of transactions with the land lots. Now contracts on disposition of the land lots belong to category of the most difficult transactions. It is connected, first of all, as with dependence in the existing ground legislation of the number of questions, arising in practice and demanding settlement at legislative level, and to absence of uniform practice according to the certificate of the transactions connected with use of lands.
Synthesis of practice carried out by Republican notarial chamber according to the certificate of transactions with the land lots showed that there are mistakes allowed by notaries which it is possible to divide conditionally into the following groups:
- observance of requirements of the Land Code of the Republic of Kazakhstan (the partition of an indivisible lot, mistakes at transactions with a part of divisible property, disposition of land lot without the corresponding registration of real estate);
- observance of requirements for reclamation of title documents and determination of powers of the owner on disposition of rights belonging to
- observance of requirements of the legislation on ensuring the rights of owners, the rights of spouses and the rights of the third parties;
- observance of requirements to content of the
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