Comments on Article 126. Extension and restoration of procedural terms of the Civil Procedure Code of the Republic of Kazakhstan

1. The time limits set by the court may be extended by the court.

2. The time limits established by this Code may be restored by the court if they are missed for reasons recognized by the court as valid.

3. The court is obliged to restore the missed time period specified in the second part of this article for appealing judicial acts, protesting in case of violation of the law by the court or judicial acts limiting the participant's ability to defend his rights and legitimate interests (late sending of a copy of the judicial act to a person participating in the case; ignorance of the language of judicial proceedings, if the judicial the act has not been translated into the language that the person speaks.; incorrect registration of succession), as well as in the presence of other circumstances that prevented him from filing a complaint or protest in a timely manner.

4. An application for reinstatement of a missed procedural period shall be submitted to the court in which the procedural action was to be performed no later than one month from the day when the applicant became aware of the violation of his rights or legitimate interests. The persons involved in the case are notified of the time and place of consideration of the application, however, the non-appearance of any of them is not an obstacle to the consideration of the application.

5. At the same time as submitting an application for reinstatement, a claim for protection of rights must be submitted, and a document confirming the validity of the reasons for missing the deadline must be submitted.6. A court ruling on the refusal to extend or restore a missed procedural period may be appealed and protested on appeal.

7. The court's ruling on the extension or restoration of the procedural period is not subject to appeal or appeal.1. This provision of the law is devoted to the issue of extending and restoring procedural time limits, which is the most common in practice.It follows from the content of the commented article that the time limits set by the court or judge are extended, and the time limits set by law are restored by the court.

Within the meaning of this article, persons participating in the case, as well as persons not participating in the case, may apply for an extension of the time limit. The extension of the missed deadline may also be carried out on the initiative of the court (judge).

An application for an extension of the missed deadline must be submitted by the persons participating in the case before the expiration of these deadlines, however, they are not deprived of the opportunity to file such an application after the expiration of the deadline. Persons who are not involved in the case have the right to apply for an extension of the time limit only before the expiration of the time limit set by the court (judge), since filing such an application after the expiration of the established time limit entails liability for them provided for by law and at the same time does not release them from the obligation to perform the required procedural actions.

2. The procedural period is extended if the reason for his absence is recognized by the court (judge) as valid. From the content of the commented article, it can be concluded that the issue of extending the term is being considered by the court (judge) without holding a court hearing. The extension of the procedural term means that the judge or the court grants a new term for the commission of the procedural term, which was not fulfilled for a valid reason within the prescribed period.

3. In the specified part of the commented article, the legislator indicated specific cases when the court is obliged to restore the missed deadline. The procedure for restoring the time limit established by law is somewhat different from extending the time limit.4. Restoration of the missed deadline is carried out at the request of the person participating in the case. The application is submitted to the court in which the relevant procedural action should have been performed.The application must specify the reasons for missing the deadline and provide the reasons why the applicant considers these reasons to be valid.

The CPC explicitly stipulates that applications for reinstatement of a missed deadline are considered at a court hearing with notification of the persons involved in the case, however, their failure to appear does not preclude the consideration of the application. Restoring the missed deadline, the court does not appoint a new deadline for the procedural action. It seems that valid reasons should be understood as the reasons that led to the omission of the procedural period through no fault of the applicant.

In practice, courts recognize as valid reasons cases when, due to the fault of the court, a party received a copy of a court decision, ruling, or resolution in a timely manner, and therefore missed the deadline for appealing a judicial act: when the party was not properly notified of the time and place of the case and learned about the decision after the expiration of the appeal period, as well as cases when related to illness and being on a business trip.The reasons for missing the procedural deadline are not exhaustive, therefore, the courts have the right to restore the missed deadline based on the assessment of the applicant's actions., recognizing or not recognizing the reasons for the omission as valid.

5. At the same time as submitting an application for reinstatement of the missed deadline, the necessary procedural action must be performed. In practice, the restoration of the time limit is often associated with the filing of appeals, private or cassation complaints (protest), that is, having missed the deadline for filing these complaints (protest), the participant in the process has the right to apply to the court for the restoration of the time limit and simultaneously file an appeal, private or cassation complaint (protest) in accordance with the procedure established by law. If the complaint is not properly filed and has certain shortcomings, the court has the right, without considering applications for reinstatement, to return the complaint to eliminate the shortcomings. The decision to restore the missed procedural period or to refuse to do so is made by the judge or the court in the form of a separate procedural document.

6. A private complaint or protest may be filed against the decision to refuse to extend and restore the missed deadline. The issue of the application of the provisions of the commented article to complaints about the actions of the bailiff raises a discussion.Thus, part one of Article 250 of the CPC and Article 127 of the Law "On Enforcement Proceedings and the Status of Bailiffs" provides that a complaint against the actions (inaction) of a bailiff in the execution of enforcement documents, including challenging the bidding, in the course of enforcement proceedings, or a refusal to commit such actions by the recoverer or the debtor may be filed within ten working days.The statutory time limit for filing a complaint is a procedural time limit, therefore it is subject to the provisions provided for in Chapter 10 of the CPC.The obligation to prove the time when the applicant became aware of the decision taken, the action (inaction) committed by the bailiff, is assigned to the applicant. Therefore, if the recoverer or debtor has filed a complaint after the expiration of the procedural period established by Article 250 of the CPC, and there is no request to restore the missed deadline, such complaints are not subject to court review and are returned to the applicant by court ruling according to the rules of Article 126 of the CPC.If there is a petition for the restoration of the missed deadline, the court decides on the restoration of the missed deadline at the court session. If the time limit is restored by the court, the complaint is subject to consideration on its merits (Bulletin of the Supreme Court No. 11, 2014, summarizing the practice of reviewing cases and materials on enforcement proceedings).

Article 172 of the CPC, which is a novel of the CPC, expanded the powers of the court during the preliminary court session. Thus, part six of this article provides for the judge's decision to dismiss the claim without examining other factual circumstances of the case if the statute of limitations or the time limit for applying to the court are missed without valid reasons. The procedure for restoring the time limit is somewhat different when considering petitions filed in cassation for judicial acts that have entered into force. According to the first part of Article 436 of the CPC, a petition, a protest against rulings, decisions of the court of appeal may be filed within six months from the date of their entry into force. If the petition is filed after the expiration of the six-month period established by law from the date of entry into force of the contested judicial act and does not contain an application for reinstatement of the missed deadline, indicating the reasons for the omission, or the reasons specified in the application for reinstatement are not valid, then such petition is subject to return without consideration in accordance with the first part of Article 442 of the CPC by a judge the cassation instance based on the results of the preliminary review. It is also necessary to take into account the provisions of the second part of Article 436 of the CPC, according to which, if the time limit for appealing judicial acts is missed, the petition may be filed with the court of cassation after consideration of the application for restoration of the time limit for appeal, and in case of refusal - after consideration of a private complaint, protest, appeal by the court of appeal.

7. A court ruling on the extension or restoration of a procedural term is not subject to appeal or appeal, however, an objection to the extension or restoration of the term may be included in an appeal or cassation appeal in the event of an appeal against judicial acts rendered based on the results of consideration of the case on the merits.

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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