Comments on Article 103. State fee of the Civil Procedure Code of the Republic of Kazakhstan

The procedure for payment and the amount of the state duty, as well as the grounds for exemption from its payment, are determined by the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (Tax Code).Payment of the state fee to the budget must be confirmed by payment or cash documents, and when payments are made via ATMs, electronic terminals, remote communication channels and the e-government payment gateway, they must be confirmed by checks and receipts on paper or in electronic form.The procedure for payment and the amount of the state duty are determined by the Tax Code. The state duty on the territory of the Republic of Kazakhstan is subject to mandatory collection to the state revenue for the actions performed by the court listed in Article 535 of the Tax Code. The amount of the state fee is established by law and depends on the price of the claim - for claims of a property nature, and for claims of a non-property nature. - It depends on the subject of the claim, and also depends on the nature of the procedural action being performed and the legal status of the applicant.Article 541 of the Tax Code provides for a strict list of persons subject to exemption from payment of state duty, as well as grounds for certain categories of cases (labor, copyright, alimony, etc.).The payers of the state duty are individuals and legal entities., those who apply to the court regarding the commission of legally significant actions and (or) the issuance of documents.A number of issues related to the payment of state fees are clarified in the regulatory resolution of the Supreme Court No. 9 dated December 25, 2006 "On the application by courts of the Republic of Kazakhstan of legislation on court costs in civil cases."Based on the meaning of Article 103 of the CPC and Article 535 of the Tax Code, the objects of collection of state duties to the state budget include each /each/ accepted / accepted / by the court for production:- an independent claim by the plaintiff or a third party, presented in the original and/or counterclaim statement of claim;- an additional statement of an increase in the price of the claim; - a statement /complaint / in cases of special proceedings;- an application for the recovery of sums of money or the recovery of property from the debtor for indisputable claims (an application for a court order);- an application for the issuance of a duplicate writ of execution;- an application for the re-issuance of copies (duplicates) of court decisions, verdicts, rulings, and other court rulings, as well as copies of other documents from the case, issued by the courts at the request of the parties and other persons involved in the case;- an application for the issuance of writ of execution for the enforcement of arbitral awards and foreign courts; 

- a petition for a cassation review of judicial acts based on rulings, decisions and court rulings.Lawsuits and applications filed with the court, as well as counterclaims, may contain several independent claims, each of which is subject to a state fee.Based on the meaning of Article 533 of the Tax Code, payers of state duties in civil proceedings include individuals and legal entities or their authorized bodies when performing legally significant actions in the interests of the relevant structural unit.:- acting as plaintiffs, applicants at the initial filing of a claim, statement or complaint;- acting as defendants in the courts in the case of filing a counterclaim;- acting as third parties making independent claims on the subject of the dispute being considered by the court; - in the event of the withdrawal of the original plaintiff from the case and his replacement by a successor, the latter is the payer of the state fee, if it was not paid by the original plaintiff;- the parties and other persons involved in the case, when filing a petition for a cassation review of judicial acts against rulings, decisions and judgments of the courts, or in the case of applying to the court for the reissue of copies of judicial acts and copies of other documents from the case.In the case of payment of the state duty by another person not named above, the payment order (receipt) must indicate for which action and for whom the payment was made by the payer.The rates of the state fee to be levied in civil proceedings, established by Article 535 of the Tax Code, depending on the type of civil case, the nature of the procedural action being performed, as well as the applicant's legal status. The state duty is calculated based on the amount of the calculation index established in the Republic of Kazakhstan on the day of payment of the state duty (fixed interest rates of the state duty) or based on the percentage of the claim price (proportional state duty).When determining the amount of the state fee from petitions for the review of judicial acts in cassation in property disputes, one should proceed from the amount disputed by the applicant., specified in the petition.For a separate production, the state duty is not paid a second time.For repeated claims that were previously left without consideration or for which proceedings were terminated, with the exception of the cases specified in subparagraphs 2), 3), 5) and 6) of Article 277, as well as 1), 2) and 5) of Article 279 of the CPC, the state duty is paid on a general basis.

In case of an increase in the amount of claims during the consideration of the case or the approval of a settlement agreement, the missing amount of the state fee is paid by the plaintiff in accordance with the increased price of the claim.While issues regarding the amount of the state fee for the commented article are generally regulated by the Tax Code, attention is drawn to a significant circumstance that causes a certain legal problem that arises in judicial practice in the administration of justice in civil cases.So, in some cases, if the plaintiff, making a claim for invalidation of the transaction, If it does not raise the issue of the return of property, then the state fee is charged as a non-property claim, assuming that only the agreement itself is disputed. If the plaintiff simultaneously makes a claim in accordance with paragraph 3 of Article 157 of the Civil Code for the return by the other party of all received under the transaction in kind, and if it is impossible to recover the value in money, the state fee is charged simultaneously, based on the amount established for non-property and property-related claims.In other cases, the courts charge a state fee for such claims as for one non-property claim, considering it to be subject to the application of restitution by virtue of the law.There is also a third option in judicial practice., When courts seek to invalidate a transaction, they charge a state fee as a property claim based on the value of the disputed property.The following justifications are provided in support of the third option.As you know, civil legislation regulates:- property relations that may have a monetary value (a purchase and sale agreement is a classic reimbursable contract; under a gift agreement, although according to Article 506 of the Civil Code there is a gratuitous transfer of property or property rights, the subject of the contract also has a monetary value.

Based on the meaning of Articles 147, 148, 378, 1050 of the Civil Code, a contract is a unilateral, two- or multilateral transaction aimed at establishing, changing or terminating civil rights and obligations. A will, like any other transaction, is aimed at establishing, changing or terminating civil rights and obligations, and its invalidity, like any other contract, is based in accordance with Article 1056 of the Civil Code on the rules of Chapter 4 of the Civil Code on the invalidity of transactions. A will is a contract that may impose an obligation on the executor of the will, the heir (Articles 1057-1059 of the Civil Code). Moreover, the heir has the right to refuse to accept the inheritance);- personal non-property relations (these are non-property relations that accompany property rights, for example, to intellectual property (Article 15 of the Law "On Copyright and Related Rights" (the right to be recognized as an author, to the inviolability of a work, and personal non-property rights belong to the author regardless of his property rights and are inalienable, etc.) and inalienable intangible benefits, which are not regulated by civil legislation, but are protected, unless otherwise follows from the nature of these benefits.Thus, since the subject of the alienation transaction is, there can only be property relations, and, accordingly, the legality of the property transaction is disputed, despite the fact that the plaintiff does not make demands for the return of property in this statement of claim. The price of the claim in this case is the price of the contract.Therefore, if the plaintiff disputes only, for example, a purchase and sale transaction made with his participation, while several subsequent transactions have been made with the disputed property, the court has the right to independently, in accordance with Article 52 of the CPC, involve participants in other transactions with this property as a third party on the defendant's side who do not make independent claims., whose rights will be affected in resolving such a dispute.The state fee is payable in tenge before the relevant application (complaint) or application for a court order is filed with the court, with the exception of cases provided for in Article 106 of the CPC (in cases of exemption from payment of state duty and granting deferral of payment of state duty), as well as when the court issues copies of documents (paragraph 2 of Article 547 of the Tax Code).The amount of the state fee is paid to the budget by transfer through banks or organizations., performing certain types of banking operations, or depositing it in cash on the basis of strict reporting forms in accordance with the form established by the authorized body (paragraph 4 of Article 547 of the Tax Code).

Accordingly, payment of the state fee to the budget must be confirmed by payment or cash documents.Proof of payment of the state fee in accordance with the procedure established by law is the original payment document certifying payment of the state fee to the budget at the place of filing the claim (paragraph 3 of Article 547 of the Tax Code), and complying with the requirements of the Law "On Payments and Money Transfers". It is unacceptable to confirm the payment of the state fee with a photocopy of the payment document, and it is also unacceptable to issue the original payment document from a civil case at the request of the payer, with its replacement by a copy.When paying payments via ATMs, electronic terminals, remote communication channels and the e-government payment gateway, payment of the state fee to the budget must be confirmed by checks and receipts on paper or in electronic form.There are cases when the courts, guided by Article 85 of the CPC, The originals of the state duty payment documents are returned at the request of the party. Meanwhile, this provision of the law provides for the return of written evidence, which, in accordance with the provisions of Articles 64, 81 of the CPC, are documents containing information about factual circumstances relevant to the case, the original document attached to the statement of claim as crediting confirmation of state duty to the budget is not and cannot be returned at the request of the party. on business.The initial payment document on payment of the state fee may be attached to the re-filed claim as proof of payment of the state fee., which was subject to refund from the budget to the plaintiff by definition or court decision, but was not received by him, unless the three-year period from the date of crediting the amount of the state fee to the budget expired.

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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