Comments on Article 1. Legislation on civil procedure of the Republic of Kazakhstan of the Civil Procedure Code of the Republic of Kazakhstan

1. The procedure of judicial proceedings in civil cases on the territory of the Republic of Kazakhstan is determined by the constitutional laws of the Republic of Kazakhstan, the Civil Procedure Code of the Republic of Kazakhstan, based on the Constitution of the Republic of Kazakhstan and generally recognized principles and norms of international law. The provisions of other laws regulating the procedure of civil proceedings are subject to inclusion in this Code.

2. International contractual and other obligations of the Republic of Kazakhstan, as well as normative resolutions of the Constitutional Council and the Supreme Court of the Republic of Kazakhstan are an integral part of civil procedural law.

3. The legislation of the Republic of Kazakhstan on civil proceedings establishes the procedure for considering cases on disputes arising from civil, family, labor, housing, financial, economic, land and other legal relations, as well as cases of special proceedings.

1. In accordance with paragraph 2 of article 13 of the Constitution, every citizen is guaranteed judicial protection of his rights and freedoms. The right to judicial protection is a constitutional right. The protection of civil rights by the courts is carried out through civil proceedings, which is a special procedural form of court activity regulated by civil procedural legislation.

The commented article contains a list of regulatory legal acts that determine the procedure for the administration of justice in civil cases.

The Constitutional Law "On the Judicial System and the Status of Judges of the Republic of Kazakhstan", which defines the basic principles of judicial proceedings in general and civil proceedings in particular, as well as the content of the legal and procedural status of judges, belongs to the category of important sources of legislation on civil proceedings. Judicial power is exercised through the administration of justice only by the court, and no bodies or persons have the right to assume the functions of the administrator of justice.

The CPC is a civil procedural legislative act that regulates in detail the procedure of civil proceedings, the main and main one, containing most of the norms. It defines the principles of civil procedure, rules of jurisdiction and jurisdiction, the composition of the participants in the process, their rights and obligations, the procedure and procedure for judicial proceedings, the issuance of judicial acts, and their appeal.

Explanations on the procedure for applying certain provisions of civil procedure law are given by the Supreme Court in the relevant regulatory rulings, which are generally binding and included in the current law.

2. Article 8 of the Constitution stipulates that the Republic of Kazakhstan respects the principles and norms of international law. Consequently, when determining the procedure for civil proceedings, the abovementioned constitutional provision is taken into account and ensured.International treaties and other obligations of the Republic of Kazakhstan, as well as normative resolutions of the Constitutional Council and the Supreme Court, are an integral part of civil procedure law, which also follows from the norms of Article 4 of the Constitution, according to which the current law in the Republic of Kazakhstan is the norms of the Constitution, relevant laws, and other normative legal acts., international contractual and other obligations of the Republic, as well as regulatory decisions of the Constitutional Council and the Supreme Court. The Constitution has the highest legal force and direct effect on the entire territory of the Republic. International treaties ratified by the Republic take precedence over its laws and are applied directly, except in cases where it follows from an international treaty that its application requires the publication of a law. All laws and international treaties to which the Republic is a party are published. The official publication of normative legal acts concerning the rights, freedoms and duties of citizens is a prerequisite for their application.

3. Part three of the commented article defines that the legislation on civil proceedings establishes the procedure for the consideration of cases on disputes arising from civil, family, labor, housing, financial, economic, land and other legal relations, as well as cases of special proceedings. Depending on the nature and specifics of the substantive right to be protected or the interest protected by law, the procedural order of initiation, consideration, resolution of certain groups of civil cases, various types of civil proceedings are used for different categories of cases, namely: writ proceedings, simplified (written) proceedings, claim proceedings, special claim proceedings, special proceedings.The main and most widespread type of civil proceedings is the claim procedure. By means of this type, cases on disputes arising from civil, family, labor, housing, financial, economic, land legal relations, relations on the use of natural resources and environmental protection and other legal relations are considered.It is in the claim proceedings that the general rules of civil proceedings are provided for. Other types of legal proceedings may be presented as an exception to these general rules. Claim proceedings have such varieties as oral proceedings and simplified (written) proceedings.The substantive difference in civil relations affects the procedure for their consideration and resolution. In particular, cases arising from public legal relations are considered in special claim proceedings.

The following categories of cases are considered in the order of special claim proceedings: cases on applications for the protection of the electoral rights of citizens and public associations participating in elections and referendums; cases on challenging decisions, actions (inaction) of local executive bodies that violate the rights of citizens to participate in criminal proceedings as a juror; cases on challenging decisions and actions public authorities, local governments, public associations, organizations, officials and civil servants; cases of challenging the legality of regulatory legal acts.The peculiarity of considering these categories of cases in special claim proceedings is that a special shortened period has been established for applying to the court. The procedure for considering these cases does not provide for such concepts as a claim, the parties (plaintiff, defendant), and the parties in the process are represented as the applicant and the interested party.

If during the trial it turns out that the court's decision may affect the rights or obligations of third parties in relation to one of the parties, the court must take into account that these circumstances prevent the case from being considered in a special claim procedure. The court should apply by analogy Article 304 of the CPC on the basis of the norms of part four of Article 6 of the CPC, according to which, in the absence of legal norms governing a disputed legal relationship, the court applies the norms of law governing similar relations, and in the absence of such norms resolves the dispute based on the general principles and meaning of legislation. In this case, the norms of Article 304 of the CPC regulate similar legal relations that have arisen between the participants in the process and all interested parties.

LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

Astana, 2016

UDC 347 (574)  

By 63

ISBN 978-601-236-042-4

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