Comments on article 100. Written evidence of the Civil Procedure Code of the Republic of Kazakhstan
1. Written evidence is acts, documents, letters of a business or personal nature containing information about circumstances relevant to the case.
2. Written evidence may be provided by the parties and other persons participating in the case, as well as requested by the court at their request.3. Persons who are unable to provide the written evidence requested by the court or to provide it within the time limit set by the court, are obliged to notify the court of this, indicating the reasons for non-fulfillment of the court's requirement.
4. Written evidence required by the court from citizens and legal entities shall be sent directly to the court. The court may issue a request to the person requesting written evidence for the right to receive it for subsequent submission to the court.
5. Written evidence is usually presented in the original. If a copy of the document is provided, the court has the right, if necessary, and also in accordance with part five of Article 68 of this Code, to require the presentation of the original.If it is difficult to submit the original written evidence to the court, the court may require the submission of duly attested copies and extracts from such a document or to inspect and examine other written evidence at the place of their storage.
6. Evidence in the form of electronic documents or copies thereof shall be certified by an electronic digital signature of the person presenting them, with a mandatory mark "copy of the electronic document" and a reflection of the results of the procedure for verifying its electronic digital signature. These proofs are equivalent to written documents in the original, except in cases where the legislation of the Republic of Kazakhstan does not allow the use of only an electronic document.This article reveals the concept of written evidence, the procedural procedure for their presentation and research in court.
Written evidence is understood to mean information about circumstances relevant to the case posted on a tangible medium in the form of acts, documents, letters of a business or personal nature.In jurisprudence, there are two distinctive features in the concept of written evidence:a) the presence of any material object (paper, cardboard, cloth, iron, etc.), i.e. written evidence exists as long as the object itself exists; b) the content of the evidence, i.e. what this evidence testifies to.; It is not so important how the content is presented (in signs, letters, numbers, symbols, etc.), it is important that it contains information about the circumstances of the civil case under consideration.The law provides for written evidence in the form of acts, documents, letters of a business or personal nature. The specified written evidence may be made in the form of a digital, graphic record, including obtained by fax, electronic or other communication, or in any other way that allows to establish the authenticity of the document.In the legal literature, it is also proposed to refer to written evidence sentences and court decisions, other court rulings, protocols of procedural actions, minutes of court sessions, appendices to protocols of procedural actions (diagrams, maps, plans, drawings).50.______________________50 Borisova E.A. and others. The civil process. - M., 2003 //http://sinref.ru/000_uchebniki/05100sud/002_grajdansk_ proces_borisova/069.htm
2. The second part of this article provides for the subjects of submission of written evidence. Written evidence may be submitted by the persons involved in the case, if they have the evidence. If other persons have written evidence and it is difficult to present it to the court, written evidence may be requested by the court at the request of the persons involved in the case in accordance with the procedure provided for in Article 73 of the CPC (see commentary to parts one, four, and five of Article 73 of the CPC).3. The court sends a request for evidence to the person who has written evidence, or issues a request to the person participating in the case to obtain evidence in accordance with the procedure provided for in part six of Article 73 of the CPC.
The court's request is binding (see the commentary to the seventh part of Article 73 of the CPC). If a person is unable to provide the written evidence required by the court (written evidence is missing from the person, destroyed, lost, transferred to another person, etc.), then this person is obliged to notify the court, indicating the reason for non-compliance with the court's requirement.The person is also obliged to notify the court of the inability to provide the requested evidence within the time period specified in the court's request, indicating the reasons for the impossibility of timely execution.4. Part Four establishes the procedure for submitting written evidence to the court.: it is sent directly to the court or, on the basis of a court request, is transferred to the person requesting written evidence (see the commentary to the sixth part of Article 73 of the CPC).5. Part five of this article establishes the general rule that written evidence is submitted to the court in the original. When providing a copy of a document, the court has the right, if necessary, to require the provision of the original. The need to present the original of the written evidence may arise when an illegible, unreadable copy is presented to the court or there are doubts about the reliability of the written evidence.
In the cases provided for in the fifth part of Article 68 of the CPC, the court must demand the original of the written evidence. Otherwise, the court cannot consider the circumstances proved, which are confirmed only by a copy of the written evidence when challenging its content.If the person involved in the case finds it difficult to present the original written evidence to the court, the court may require the submission of duly attested copies and extracts from such a document or to inspect and examine other written evidence at the place of their storage (see commentary to the fifth part of Article 68 of the CPC).6. Part six of this article provides for the specifics of submitting evidence to the court in the form of electronic documents.An electronic document is a document in which information is presented in electronic digital form and certified by means of an electronic digital signature.
An electronic copy of a document is a document that fully reproduces the type and information (data) of the original document in electronic and digital form, certified by an electronic digital signature of the applicant or a person authorized to certify this document, or an authorized employee of the public service center, based on the written consent of the recipient of the public service given at the time of his personal presence. An electronic digital signature is a set of electronic digital symbols created by means of an electronic digital signature and confirming the authenticity of an electronic document, its affiliation and the immutability of its content (subparagraphs 6-1), 10), 13) of Article 1 of the Law "On Electronic Document and Electronic Digital Signature").The admissibility of evidence in the form of electronic documents or copies thereof is determined by the presence of an electronic digital signature of the person presenting them. In this case, an electronic digital signature is equivalent to a handwritten signature of the signatory if the conditions established by law are fulfilled (paragraph 1 of Article 10 of the Law "On Electronic Document and Electronic Digital Signature").Copies of evidence in the form of electronic documents must contain the mark "copy of the electronic document" and reflect the result of the procedure for verifying the electronic digital signature of the person who signed the electronic document., what is necessary to verify the reliability of the submitted evidence.Evidence in the form of electronic documents or copies thereof is equivalent to written documents in the original.Exceptions to this rule may be provided for by the legislation of the Republic of Kazakhstan.
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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