Comments on Article 105. Additional payment of the state fee of the Civil Procedure Code of the Republic of Kazakhstan
1. If it is difficult to determine the price of a claim at the time of its presentation, the amount of the state fee is preliminarily determined by the judge at the stage of preparing the case for trial, as indicated in the ruling on preparing the case for trial.2. If the price of the claim is determined by the court during the consideration and resolution of the case on the recovery of the unpaid amount of the state fee, the amount of the additional state fee to be paid shall be indicated in the court decision.3. If the amount of the claims increases, the consideration of the case regarding the increased claims continues after the plaintiff provides proof of payment of the state fee within the time limit set by the court.In case of failure to submit a document on payment of the state fee, the case is indicated in the court decision. The application for an increase in claims is returned to the plaintiff without consideration. Arguments about disagreement with the court's conclusions on the issue of additional payment of the state fee may be included in the appeal.
1. From the literal interpretation of the first part of the commented article, it follows that in some cases, when the plaintiff cannot correctly determine the price of the claim when filing a claim, the legislator grants the judge the right, at the stage of preparing the case for trial, to set the preliminary price of the claim for calculating the amount of the state fee.In doing so, the court should be guided by the explanation given in paragraph 10 of the normative 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."
The price of the claim is determined in accordance with Article 102 of the CPC and is indicated by the plaintiff. If the plaintiff's indicated price clearly does not match the actual value of the sought-after property, determined taking into account market prices by the authorized body for registration of immovable (movable) property or by a person licensed to carry out valuation activities, the price of the claim is determined by the judge.The price is indicated in the court's ruling on the preparation of the case for trial if the price is determined by the court due to the difficulty of determining it by the plaintiff.If the price of the claim turned out to be lower than the actual price of the claim, then when making a decision, the resulting difference is added to the income of the state in case of refusal to satisfy the claim from the plaintiff, and in case of satisfaction of the claim - from the defendant.If the price of the claim turned out to be higher than the actual price of the claim, then when making a decision, the overpaid state fee is subject to refund to the plaintiff.
2. If the provisions of the second part of this article governing the issues of additional payment of the missing amount of the state fee are sufficiently clear in the event of an increase in the amount of claims during the consideration of the case, individual courts, when approving a settlement agreement under which the value of the divided property does not coincide with the original price of the claim, will not raise the state fee.3. It should be borne in mind that the provision of the third part of Article 105 of the CPC applies to all cases of an increase in the price of a claim during the consideration of a case, which includes the termination of the case by an amicable agreement between the parties, an agreement on the settlement of a dispute (conflict) through mediation or an agreement on the settlement of a dispute through a participatory procedure. Accordingly, with an increase in the amount of claims, the state fee is paid in accordance with the increased price of the claim.A document confirming the payment of the state fee in accordance with the established procedure and amount is attached to the application for an increase in the amount of claims. If such a document is not submitted, the application for an increase in the amount of the claims is considered not filed and is returned to the plaintiff with all the documents attached to it.
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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