Name of the Kyrgyz Republic

DECISION OF THE CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF THE KYRGYZ REPUBLIC

of February 17, 2016 No. 2-r

On the case of check of constitutionality of Item 2 of Article 215 of the Civil code of the Kyrgyz Republic, in connection with Kochkorbayeva N. B. address for the benefit of Pharmation open joint stock company

The constitutional chamber of the Supreme Court of the Kyrgyz Republic in structure:

the chairman - the judge Kasymaliyev M. Sh, judges Abdiyev K., Aydarbekova Ch. A., Kirgizbayeva K. M., Mamyrova E. T., Narynbekova A. O., Oskonbayeva E. Zh., Osmonova Ch. O., Saalayev Zh. I.,

in case of the secretary of Dzholgokpayevoy S.A.,

with participation:

the representative of the addressing party - Kochkorbayeva Nurili Bayyshevna representing the interests of Pharmation open joint stock company by proxy

the agent of the party - the defendant Dzhorupbekovoy Aygul Ashyrbekovny, the Kyrgyz Republic representing the interests of Jogorku Kenesh by proxy,

other persons - Chotkarayev Kamil Aliyaskarovich, the representative of the Government of the Kyrgyz Republic by proxy, to Bokoshova Zhyldyz Seyitbekovny, the representative of the Supreme Court of the Kyrgyz Republic by proxy,

being guided by parts 1, of 6, of 8, of the 9 and 10 article 97 of the Constitution of the Kyrgyz Republic, Articles 4, of 18, of 19, 37 and 42 constitutional Laws of the Kyrgyz Republic "About the Constitutional chamber of the Supreme Court of the Kyrgyz Republic", considered case on check of constitutionality of Item 2 of Article 215 of the Civil code of the Kyrgyz Republic in proceeding in open court.

Reason for consideration of the case was Kochkorbayeva N. B. petition for the benefit of Pharmation open joint stock company.

The basis to consideration of this case was the found uncertainty in question of whether there correspond Constitutions of the Kyrgyz Republic of regulation of Item 2 of Article 215 of the Civil code of the Kyrgyz Republic which constitutionality is disputed by the applicant.

Having heard information of the judge-speaker Kirgizbayev K. M., the case which was carrying out preparation for judicial session and having researched the provided materials, the Constitutional chamber of the Supreme Court of the Kyrgyz Republic

established:

In the Constitutional chamber of the Supreme Court of the Kyrgyz Republic the petition from the representative of Pharmation open joint stock company Kochkorbayeva N. B. (further - joint stock company "Pharmacy) about recognition of Item 1 of Article 199 of the Civil code of the Kyrgyz Republic to the contradicting Item 8 of part 5 of article 20 of the Constitution of the Kyrgyz Republic and Items 1, 2 Articles 215 of the Civil code of the Kyrgyz Republic contradicting Item 8 of part 5 of Article 20, of part 1 of article 40 of the Constitution of the Kyrgyz Republic on September 15, 2015 arrived.

Follows from the petition of the applicant that between JSC Pharmation and the Ministry of Finance of the Kyrgyz Republic in July, 1998 the credit agreement No. 17/02 on provision of commodity loan in the form of medicines on the amount 396057, of 64 US dollars which in somovy equivalent constituted 11620331 som was signed. At the same time the applicant claims that the range of the medicines transferred to JSC Pharmation for realization was established without market situation and opinion of JSC Pharmation, and the purchase of medicines was performed by chief specialists of the Ministry of Health of the Kyrgyz Republic. As a result of it, according to the applicant, JSC Pharmation was not able to realize the specified medicines. Moreover, drugs appeared the expired, and charged percent on commodity loan were above the main amount of debt.

The state fund of development of economy under the Ministry of Finance of the Kyrgyz Republic (further - GFRE) appealed to interdistrict court of the city of Bishkek with the claim to JSC Pharmation for collection from the defendant for benefit of GFRE under the Ministry of Finance of the Kyrgyz Republic overdue debt in the amount of 20802540 som.

This case was connected by determination of interdistrict court of the city of Bishkek of May 14, 2015 in one production to homogeneous cases on the claim of JSC Pharmation to the Ministry of Finance of the Kyrgyz Republic about recognition invalid the credit agreement No. 17/02 and debt obligation of February 16, 1998 in the claim of JSC Pharmation to the Ministry of Finance of the Kyrgyz Republic about recognition performed obligations on debt obligation of February 6, 1997.

Production in the claim of JSC Pharmation to the Ministry of Finance of the Kyrgyz Republic was stopped by determination of court of September 1, 2015 in connection with the expiration of limitation period.

As the basis of suit abatement in determination it is made a reference to Article 215 of the Civil code of the Kyrgyz Republic according to which requirements about protection of the violated right judicially can be imposed in court before the expiration of limitation period. The term of limitation period according to requirements about protection of the violated right of legal entities (irrespective of patterns of ownership, including state bodies and local government bodies), the citizens performing business activity and also the other persons imposing in court requirements about protection of the violated founder's rights (the participant, the shareholder) of the legal entity or the owner of its property, and equally violated rights of corporeal, liability and other property rights to objects of business activity, is not subject to recovery.

Meanwhile, Kochkorbayeva N. B. considers that the credit agreement No. 17/02 was signed with violation of the law. Gives the subitem 1 of Item 2 of Article 179 of the Civil code of the Kyrgyz Republic according to which the notarial certificate of transactions is obligatory in the cases specified in the law as reasons. Non-compliance with notarial form of the transaction, according to Item 1 of Article 181 of the Civil code of the Kyrgyz Republic, attracts its invalidity. Such transaction is considered insignificant, and the right - invalid.

According to item 4 of Article 725 of the Civil code of the Kyrgyz Republic, the loan agreement shall be signed in notarial form if its amount exceeds at least settlement indicator by five hundred times. In this connection, Kochkorbayeva N. B. considers that the insignificant transaction is invalid from the moment of its making and the term of limitation period cannot extend to it.

However, Item 1 of Article 199, Items 1, 2 Articles 215 of the Civil code of the Kyrgyz Republic, according to Kochkorbayeva N. B., deprive of possibility of JSC Pharmation of the right to judicial protection which, according to Item 8 of part 5 of article 20 of the Constitution of the Kyrgyz Republic, is not subject to any restriction.

Based on stated the addressing party asks to recognize contradicting the Constitution of the Kyrgyz Republic the specified regulations of the Civil code of the Kyrgyz Republic.

This petition was accepted determination of board of judges of October 23, 2015 to production regarding check of constitutionality of Item 2 of Article 215 of the Civil code of the Kyrgyz Republic. Regarding contest by the applicant of constitutionality of Item 1 of Article 199, of Item 1 of Article 215 of the Civil code of the Kyrgyz Republic, regulating questions of temporary restriction of judicial protection of the violated right in the form of the three-year term of limitation period, acceptance to production it was refused in connection with availability of legal line item of the Constitutional chamber of the Supreme Court of the Kyrgyz Republic on the matter.

In judicial session the addressing party specified the requirements and asked to recognize the contradicting Constitution of the Kyrgyz Republic only paragraph one of Item 2 of Article 215 of the Civil code of the Kyrgyz Republic. At the same time asked to check the disputed regulation also for compliance of part 3 of article 16 of the Constitution of the Kyrgyz Republic.

Representative of the defendant party Dzhorupbekova A. A. did not agree with arguments of the addressing party and considers that the disputed regulations of the Civil code of the Kyrgyz Republic do not contradict the Constitution of the Kyrgyz Republic. The representative of the defendant party brings the following arguments into reasons for the line item.

The legislator determined that person can take a legal action behind protection of the violated right within three years from the moment of the beginning of current of term of limitation period, that is when person learned or owed learn about violation of the right. The civil legislation of the Kyrgyz Republic is based on need of ensuring recovery of the violated rights and their judicial protection. Limitation period stimulates the activities of participants of civil circulation directed to timely implementation and protection of the rights. Therefore, limitation period promotes stability of civil circulation and excludes abuse of the right, and also makes the disciplining impact on participants of legal relationship.

Court practice demonstrates that the parties abusing the right to appeal to the court, delay cases for many years that has an adverse effect on idea of citizens of the justice designed to provide protection of the rights, freedoms, proper and equal for all, and the interests protected by the law.

The representative of the Supreme Court of the Kyrgyz Republic by proxy is Bokoshova Zh. S. - considers that the paragraph two of Item 2 of Article 215 of the Civil code of the Kyrgyz Republic does not contradict Item 8 of part 5 of Article 20 and part 1 of article 40 of the Constitution.

The civil code of the Kyrgyz Republic establishes aggregate term of limitation period which is estimated from the date of when person learned or owed learn about violation of the right. In this connection, the legislator established specific time frames for the conflict resolution and protection of interests for the purpose of increase in discipline of citizens, and also legal entities. The term of limitation period allows to solve case during this period in which proofs still remained, and witnesses can give objective evidences.

At the same time, the constitutional principle of equality of all before the law and court shall be observed therefore it leaves assessment of paragraph one of Item 2 of Article 215 of the Civil code of the Kyrgyz Republic regarding its constitutionality at the discretion of the Constitutional chamber of the Supreme Court of the Kyrgyz Republic.

Representative of the Government of the Kyrgyz Republic by proxy Chotkarayev K. A. considers that the disputed regulations do not contradict the Constitution of the Kyrgyz Republic and asks to leave the petition of the addressing party without satisfaction.

The constitutional chamber of the Supreme Court of the Kyrgyz Republic, having discussed arguments of the parties, having listened to opinions of other persons and having researched case papers, came to the following conclusions.

1. According to part 4 of article 19 of the constitutional Law of the Kyrgyz Republic "About the Constitutional chamber of the Supreme Court of the Kyrgyz Republic" the Constitutional chamber of the Supreme Court of the Kyrgyz Republic takes out acts in the subject mentioned in the address only concerning that part of regulatory legal act which constitutionality is called in question.

Thus, subject of consideration of the Constitutional chamber of the Supreme Court of the Kyrgyz Republic of this case is the paragraph one of Item 2 of Article 215 of the Civil code of the Kyrgyz Republic of the following content:

"Article 215. Use of limitation period

2. The term of limitation period according to requirements about protection of the violated right of legal entities (irrespective of patterns of ownership, including state bodies and local government bodies), the citizens performing business activity and also the other persons imposing in court requirements about protection of the violated founder's rights (the participant, the shareholder) of the legal entity or the owner of its property, and equally violated rights of corporeal, liability and other property rights to objects of business activity, is not subject to recovery. The court shall refuse acceptance to consideration of requirements about protection of such violated rights if according to requirement imposed in court the term of limitation period established by the law expired".

The civil code of the Kyrgyz Republic is accepted according to the procedure established by the legislation published in Sheets of Jogorku Kenesh of the Kyrgyz Republic, 1996, No. 6, 80, is entered by the Art. in the State register of regulatory legal acts of the Kyrgyz Republic and is acting.

2. According to the Constitution of the Kyrgyz Republic the right to judicial protection established by the Constitution of the Kyrgyz Republic is not subject to any restriction (Item 8 of part 5 of Article 20). To everyone judicial protection of its rights and freedoms provided by the Constitution of the Kyrgyz Republic, the laws, international treaties which participant is the Kyrgyz Republic, the conventional principles and rules of international law (part 1 of article 40 of the Constitution) is guaranteed.

The specified regulations of the Constitution of the Kyrgyz Republic will be approved with regulations of the International covenant "About the civil and political rights" which fix guarantees of the right of each person for fair and public trial of case in reasonable time by the independent and just trial created based on the law in the presence of dispute on its rights and obligations.

Realization of the right to judicial protection happens in cases when the interested person cannot settle the arisen legal conflict or confirm legally significant circumstance extrajudicially. In this connection, the interested person, having taken a legal action behind protection of the, and in the cases established in the law and others rights and legitimate interests, tries to obtain from court of legal assistance and protection.

The civil case is allowed by court in essence by means of decision which arranges the corresponding relations between interested persons, owing to what the rights established by court, obligations and legal relationship become final, inviolable and indisputable. It is reached as a result of entry of decision into legal force.

At the same time, for the purpose of stability of civil circulation, realization of the above-mentioned right to judicial protection shall be limited to preclusive terms. In this regard, the special role in regulation of the public relations connected with realization of the specified right is played by institute of limitation period.

This institute by the legal nature has special value as which main manifestation ensuring stability of civil circulation, stability of civil transactions, timely protection of the rights of participants of civil legal relationship acts. Limitation period is directed to disciplining participants of civil circulation, to promote the most effective realization of the subjective guarding right by the participant of civil legal relationship.

Limitation period acts as one of the main institutes of the legislation as it determines time frames of protection of the violated subjective right judicially. That circumstance that it promotes legal definiteness and stability of civil legal relationship as without the term limiting forced protection of the violated right, the owner would have opportunity randomly long to keep the violator of the right under the threat of judicial impact acts as important manifestation of limitation period. Excessively long delay with appeal to the court would threaten also with loss of proofs, thereby there would be complicated or impossible timely permission of civil cases.

3. In turn, the question of recovery of the terms of limitation period connected with appeal to the court behind protection of the violated right is significant. In law-enforcement practice serious difficulties for fair subjects of civil legal relationship are caused by application of the rules of law regulating questions of recovery of terms of limitation period, and also other questions of limitation period, important for law enforcement.

So, in law-enforcement practice there are situations when the interested person cannot use the effective mechanism of judicial protection of the rights because of the expiration of limitation period, without knowing and without having real opportunity to know about the fact of violation of the right. It is caused by that circumstance that in separate regulations of the civil legislation for certain group of people there is no possibility of recovery of term of limitation period. Therefore, it can be considered as the legislative restriction interfering recovery of the passed term of limitation period.

In particular, such restriction is the challenged provision of paragraph one of Item 2 of Article 215 of the Civil code of the Kyrgyz Republic regulating prohibition on recovery of term of limitation period for legal entities and entrepreneurs, and also other persons imposing in court requirements about protection of the violated founder's rights (the participant, the shareholder) of the legal entity or the owner of its property, and equally violated rights of corporeal, liability and other property rights to objects of business activity.

In this connection, the Constitutional chamber of the Supreme Court of the Kyrgyz Republic notes that the list of persons provided in the disputed regulation of the Civil code of the Kyrgyz Republic and the terms of limitation period which do not have the right for recovery in the civil legislation does not allow to protect all fair participants of civil circulation.

Such selective approach to participants of civil legal relationship is in conflict with provisions of part 1 of article 12 of the Constitution of the Kyrgyz Republic according to which variety of patterns of ownership is recognized the Kyrgyz Republic and equal legal protection private, state, municipal and other patterns of ownership, and also with regulations of part 3 of article 16 of the Constitution of the Kyrgyz Republic according to which all are equal in the Kyrgyz Republic before the law and court is guaranteed.

Besides, according to regulations of the Civil code of the Kyrgyz Republic the civil legislation is based on recognition of equality, autonomy of will and property independence of participants of the relations regulated by it, security of property, freedoms of the agreement, inadmissibility of any intervention someone in private affairs, need of free implementation of the civil laws, ensuring recovery of the violated rights, their judicial protection (Item 1 of Article 2).

At the same time, the normative provision of paragraph one of Item 2 of Article 215 of the Civil code of the Kyrgyz Republic does not allow to realize in due measure the listed principles of recognition of equality of participants of civil circulation, ensuring recovery of the violated rights, their judicial protection.

The constitutional chamber of the Supreme Court of the Kyrgyz Republic notes that lack of possibility of recovery of the passed term of limitation period on appeal to the court are restriction of the right to judicial protection. The expiration of the specified term according to the disputed regulation practically means impossibility for the subjects listed in paragraph one of Item 2 of Article 215 of the Civil code of the Kyrgyz Republic to protect the violated rights, even in the presence of the circumstances obviously testimonial of impossibility of timely appeal to the court behind protection of the violated right.

The main question arising concerning recovery of terms on the address with the petition is in whether there corresponds similar restriction of the right to judicial protection, to regulations of the Constitution of the Kyrgyz Republic.

In this regard, it should be noted that complete and unconditional deprivation of the specified persons of law to recover limitation period irrespective of the reasons of its omission is unjustified and limits their right to the judicial protection guaranteed by the Constitution of the Kyrgyz Republic (Item 8 of part 5 of Article 20, part of 1 Article 40).

In this connection, considering impossibility of recovery of the right to appeal to the court on reasonable excuses for category of persons listed in paragraph one of Item 2 of Article 215 of the Civil code of the Kyrgyz Republic, the normative provision of the specified paragraph regulating prohibition on recovery of terms of limitation period contradicts part 3 Articles 16, to Item 8 of part 5 of Article 20, of part 1 of article 40 of the Constitution of the Kyrgyz Republic.

Taking into account stated, the legislator should make corresponding changes to Item 2 of Article 215 of the Civil code of the Kyrgyz Republic providing to the subjects provided in paragraph one of Item 2 of Article 215 of the Civil code of the Kyrgyz Republic, legal possibility of recovery of the passed term of limitation period in the presence of certain circumstances, level in them in this part with other participants of civil legal relationship.

Based on the above, being guided by Item of 1 part 6, parts 8 and 9 of article 97 of the Constitution of the Kyrgyz Republic, Articles 46, of 47, of 48, 51 and 52 constitutional Laws of the Kyrgyz Republic "About the Constitutional chamber of the Supreme Court of the Kyrgyz Republic", the Constitutional chamber of the Supreme Court of the Kyrgyz Republic

solved:

1. Recognize paragraph one of Item 2 of Article 215 of the Civil code of the Kyrgyz Republic contradicting part 3 Articles 16, to Item 8 of part 5 of Article 20, of part 1 of article 40 of the Constitution of the Kyrgyz Republic.

2. To Jogorku Kenesh of the Kyrgyz Republic to make the corresponding changes and additions in the Civil code of the Kyrgyz Republic following from motivation part of this decision.

3. The final decision and to appeal is not subject, becomes effective from the moment of declaration.

4. The decision is obligatory for all state bodies, local government bodies, officials, public associations, legal entities and physical persons and are subject to execution in all territory of the republic.

5. Publish this decision in official publications of public authorities, on the official site of the Constitutional chamber and in "The bulletin of the Constitutional chamber of the Supreme Court of the Kyrgyz Republic".

Chairman

M. Kasymaliyev

Judges:

K. Abdiyev Ch. Aydarbekova K. Kirgizbayev E.Mamyrov A. Narynbekova E.Oskonbayev Ch. Osmonova Zh. Saalayev

 

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info