Comments on article 146. Features of the consideration of cases in the simplified (written) procedure of the Civil Procedure Code of the Republic of Kazakhstan

1. A statement of claim must comply in form and content with the requirements of Articles 148 and 149 of this Code.2. The court issues a ruling on the acceptance of a statement of claim, which indicates that the case will be considered in a simplified (written) procedure.

3. The court shall notify the parties and set a deadline within fifteen working days for the defendant to submit a response (objection) to the statement of claim, accompanied by documents and evidence that substantiate it. A document confirming the sending of a copy to the plaintiff is attached to the withdrawal (objection).

4. A withdrawal (objection), evidence and other documents received by the court after the expiration of the time limit set by the court shall be accepted if the party justifies the impossibility of their submission within the time limit set by the court and they were received before the court's decision.

5. The court shall consider the case in a simplified (written) procedure without summoning the parties after the expiration of the time limits established by the court for the submission of a response, evidence and other documents.

6. The court examines the explanations, objections and (or) arguments set forth in the documents submitted by the parties and makes a decision.

7. When considering a case in a simplified (written) procedure, the rules provided for in Chapter 26 of this Code and Article 198 of this Code shall not apply.

1. A statement of claim with the documents attached to it shall be submitted to the court in accordance with the rules of jurisdiction in writing or in the form of an electronic document. When accepting an application under Article 150 of the CPC, the court verifies that the contents of the statement of claim and the documents attached to it comply with the provisions of Articles 148 and 149 of the CPC. The court may refuse to accept the statement of claim or return the statement of claim if there are grounds established by Articles 151, 152 of the CPC.In accordance with subparagraph 3) of the first part of Article 152 of the CPC, a statement of claim may be returned due to non-compliance with the requirements of Article 148, subparagraphs 1), 2), 3) and 5) of the first part of Article 149 of the CPC if it is established that it is impossible to eliminate deficiencies at the stage of preparing the case for trial.Meanwhile, In simplified (written) proceedings, the preparation of a case for trial is not considered as an independent stage of the process.If the violation committed by the plaintiff is minor and does not prevent the acceptance of the statement of claim, for example, the absence of an e-mail address of the plaintiff or the defendant, failure to provide a list of documents attached to the statement of claim, the application is accepted. Such formal deficiencies cannot be grounds for the return of a statement of claim. The elimination of such minor deficiencies and clarification of the defendant's data is possible when accepting a statement of claim from the plaintiff by the court's office.If there is a need to provide additional information or evidence, the court proceeds to consider the case according to the rules of the claim procedure in the general manner on the grounds of subparagraph 6) of the third part of Article 144 of the CPC.In the cases provided for in paragraphs 3) - 12) the first part of Article 145 of the CPC, the statement of claim must comply with the requirements of Article 148 of the CPC, and the attached documents must comply with Article 150 of the CPC.The subject of the requirements may vary, depending on the terms of the agreement signed by the parties: on collecting money, on moving the fence, on meetings with children, etc.The basis of the claim is an agreement concluded between the parties with the participation of a notary, lawyer, mediator, as well as other agreements concluded in accordance with subparagraph 12) of the first part of Article 145 of the CPC.The court's decision must comply with the requirements of Chapter 19 of the CPC, regulating the issues of making a court decision and its execution. For example, if a claim is made "for the fulfillment of an agreement on the settlement of a dispute concluded with the participation of a notary on the transfer of money in fulfillment of obligations under the contract," the court may clarify the subject of the claims and recover the amount of debt from the defendant. In the case of a claim "for the fulfillment of obligations to move the fence", it is possible to specify in the operative part "oblige.... to fulfill obligations under the agreement and move the fence", also under the terms of other agreements.

2. The issue of acceptance of the statement of claim shall be resolved by the judge within five working days from the date of receipt of the application to the court. If there are prerequisites for the plaintiff's right to file a claim, as well as conditions that allow the court to consider the case in a simplified (written) procedure, the judge issues a ruling on the acceptance of the statement of claim for court proceedings and the initiation of a civil case in which:- indicates the consideration of the case in a simplified (written) procedure; - establishes the language of the proceedings.The application of a simplified procedure for the consideration of a case is possible both on the initiative of the plaintiff and at the discretion of the court. The request for consideration of the case in a simplified (written) procedure may be contained in the statement of claim or be issued as a separate document. If no such petition has been filed, and the claims fall under this list, the court must be guided by the second part of Article 145 of the CPC and consider cases according to the rules of simplified (written) proceedings. If, together with the statement of claim, the plaintiff's application for consideration of the case in the claim proceedings is simultaneously received, there is an application for the appointment of an expert examination, the interrogation of witnesses, the case is being prepared for trial and the case is considered according to the rules of the claim proceedings in the general procedure.

3. The court shall notify the parties of the acceptance of the statement of claim and its consideration in simplified (written) proceedings in accordance with Chapter 11 of the CPC, which regulates issues of judicial notification and summons, including by e-mail. For proper consideration and resolution of the case, the court conducts a separate procedural action, which is provided for in subparagraph 1) of Article 165 of the CPC. In the notice sent to the defendant, the court sets a period of fifteen working days for the defendant to provide a written response (objections) to the plaintiff's claims with the obligation to provide evidence and other written documents in support of his arguments, as well as a document confirming the sending of a copy of the response (objections) to the plaintiff.If the plaintiff receives an application for securing the claim with a document confirming the sending of a copy to the defendant, the application is reviewed and resolved in accordance with the rules of Chapter 15 of the CPC in the absence of the parties. If the plaintiff additionally submits any documents related to the submitted claims, accompanied by a document confirming the sending of a copy to the defendant, their acceptance also cannot be refused.

4. Failure by the defendant to provide a response (objection) within the time limit set by the court upon proper notification does not prevent the case from being considered in a simplified (written) procedure. The review and documents received before the court's decision, but after the expiration of the period submitted by the court, substantiating the impossibility of providing them in a timely manner, are accepted by the court. If a decision is made before the receipt of the review and documents, they must be returned to the respondent by letter. In case of disagreement with the court's decision, the defendant may raise the issue of its revision if there are grounds established by the second part of Article 147 of the CPC.

5. After the expiration of the time limits for the defendant to provide a response, evidence and other documents, the court considers the case in a simplified (written) procedure. The case may also be considered on the last day, on which the monthly period expires, which may ensure that the court is familiar with the respondent's response (objection), which was not sent to the court in a timely manner for good reasons. If the response from the defendant is received before the deadline, the court may also resolve the dispute and make a decision.This chapter, which regulates the issues of simplified proceedings, does not contain exceptions to the notices of the parties. Consequently, the procedure for notification and consideration of cases is carried out according to the rules established by Chapter 11 of the CPC. The presence or absence of data on the defendant's notification of the consideration of the case in simplified proceedings does not affect the type of proceedings and is not an independent basis for proceeding to the consideration of the case according to the rules of claim proceedings in the general procedure, in accordance with part three of Article 144 of the CPC.If there is reliable information about the impossibility of proper notification of the defendant (the addressee is absent from the address indicated in the documents and his actual place of residence is unknown), The court considers the case in a simplified (written) procedure only if his whereabouts are unknown and the notification is sent according to the rules of Article 133 of the CPC.It is assumed that the claims made by the plaintiff and the evidence provided do not raise doubts about their validity. Otherwise, the court proceeds to consider the case according to the rules of the claim procedure in a general manner to clarify additional circumstances or examine additional evidence, as well as if there are grounds established by part three of Article 144 of the CPC.If the defendant is duly notified of the time and place of the trial, but avoids appearing at the hearing, the court may also consider the case in a simplified (written) procedure.

6. The court examines the explanations, objections and (or) arguments set out in the documents provided by the parties, evaluates the evidence provided in accordance with the requirements of Article 68 of the CPC and makes a decision. If, during the consideration of the case, the court finds it impossible to resolve the dispute on the basis of written evidence provided by the parties, the case is subject to consideration according to the general rules of claim proceedings. If, together with the claim, the plaintiff submits a request for the appointment of an expert examination, the court considers the case according to the rules of the claim procedure in the general manner, despite the fact that the claim falls under the list of categories of cases considered in simplified (written) proceedings. The petition indicates the need to clarify additional circumstances and examine additional evidence, which, by virtue of subparagraph 6) of part three of Article 144 of the CPC, is the basis for proceeding to the consideration of the case according to the rules of claim proceedings in the general procedure.

7. In a simplified procedure, the minutes of the court session are not kept, the trial of the case is not postponed.

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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