Comments on Article 224. Legality and validity of the decision of the Civil Procedure Code of the Republic of Kazakhstan

1. The court's decision must be lawful and justified.

2. The court bases its decision only on the evidence presented by the parties and examined at the court session.

1. According to the first part of the commented article, there are two main requirements for a court decision: legality and validity. These two requirements reveal the essence of a court decision as an act of justice, an act of applying law.The following criteria for the legality of a decision are used in the legal literature:- the correct application of the norms of the current substantive and procedural law;- in case of a conflict of legal norms, making a decision in accordance with the legal provisions having the greatest legal force;- in the absence of legal norms regulating disputed relations, the application of a law regulating similar relations, and in the absence of such a law, must be based on the general meaning of legislation, taking into account the provisions of the Constitution.;- if legislation contradicts international agreements, the application of the norm established by these agreements, ratified by the Republic of Kazakhstan.Reasonableness means that the court must make a decision based on the correct definition of legally significant circumstances. Circumstances that are not relevant to the case must be rejected by the court. The court must reflect these requirements in the reasoning part of the decision. At the same time, the conclusions of the court and the mentioned circumstances must correspond to each other.The concept of legality and validity of a court decision is given in Article 5 of the Civil Code, Article 5 of the CPC and paragraph 5 of the normative resolution of the Supreme Court No. 5 of July 11, 2003 "On the court decision". A decision is lawful when it is made in compliance with the norms of procedural law and in full compliance with the norms of substantive law applicable to this legal relationship, or is based on the application, if necessary, of a law governing a similar relationship, or proceeds from the general principles and meaning of civil legislation and the requirements of good faith, reasonableness and fairness.First of all, this applies to human rights enshrined in international covenants and agreements.: in the "Universal Declaration of Human Rights", adopted by the UN General Assembly on December 10, 1948, in the "International Covenant on Civil and Political Rights" and in the "International Covenant on Economic, Social and Cultural Rights", adopted by the UN General Assembly on December 1, 1966, in the "European Convention for the Protection of Human Rights and Fundamental Freedoms" of November 4, 1950 in other agreements.A decision is considered justified if it reflects the facts relevant to the case, confirmed by evidence examined by the court that meets the requirements of the law on their relevance, admissibility and reliability., or which are generally known circumstances that do not need to be proved and are collectively sufficient to resolve the dispute.The requirements of legality and validity apply to all court decisions, these concepts are interrelated, therefore, an unreasonable decision cannot be legitimate. The legality and validity of a decision can be ensured only if the procedures for initiating a case, preparing it, conducting a trial, and making the decision itself are strictly observed in the norms of civil procedural law.When considering a case, the court implements the norms of substantive and procedural law. Depending on the clarified circumstances of the case, the court applies the norms of substantive law or refuses to do so, but in all cases the court finds out the meaning of the legal norm, interprets it in relation to this particular case. The entire process in a civil case must be carried out in strict compliance with the rules of procedural law, a significant violation of which serves as the basis for the cancellation of a court decision.Applying the norms of substantive and procedural law, the court is guided by the Constitution, laws and other normative legal acts. The Constitution has the highest legal force. According to article 78 of the Constitution, the courts have no right to apply laws and other normative legal acts that infringe on the rights and freedoms of man and citizen enshrined in the Constitution. In the same article of the Constitution, it is clarified that if the court finds that a law or other normative legal act to be applied infringes on the rights and freedoms of a person and citizen enshrined in the Constitution, it is obliged to suspend the proceedings and apply to the Constitutional Council with a motion declaring the act unconstitutional. The form and content of an appeal to the Constitutional Council are set out in article 22 of the Constitutional Law "On the Constitutional Council of the Republic of Kazakhstan", therefore, when applying to the Constitutional Council, the courts must strictly comply with these requirements.The facts that constitute the subject of proof are subject to proof, which is ultimately determined by the court, taking into account the applicable substantive law.If legally significant facts are not established, the decision is considered unjustified and subject to cancellation. A decision is also considered unjustified if an incorrect conclusion is drawn about the legal relations of the parties from the circumstances established by the court. The court decision must provide evidence in support of the facts established by the court decision. The lack of evidence of the circumstances indicates the groundlessness of the court decision. Circumstances recognized as established by a court decision are considered proven if they are established in accordance with the procedure provided for by law and with the help of acceptable means of proof. For the relevance and admissibility of the evidence on the basis of which the court makes a decision, see the commentary to articles 64-67 of the CPC.In the event that a fact is considered established on the basis of its recognition by a party, the court cannot limit itself to establishing the fact of recognition. The court must ensure that the confession was not made under the influence of circumstances that prevented the free expression of the party's will, or that it was made for an illegal purpose. In addition, the terms of the settlement agreement must not contradict the requirements of the law and violate the rights and legally protected interests of others.Thus, it is impossible to approve a settlement agreement between two individuals on recognizing a property purchase and sale transaction as concluded if the property is registered under the ownership of a legal entity. The establishment of a particular circumstance cannot be considered proven if it is confirmed by evidence obtained in violation of the rules provided for by law. The court cannot limit its decision to listing only evidence confirming legally significant facts, but must state their contents. Contradictions between the evidence must be eliminated by the court by evaluating them, comparing them with each other.Decisions in which the court specifies the rights and obligations of the parties (recovery of alimony for the maintenance of parents, recovery of compensation for moral damage) must meet the requirements of justice, i.e. compliance of the amount of money awarded and other property with the material capabilities of the parties and other factual circumstances of the case.There are other requirements for court decisions. So, the solution should be complete, comprehensive, but at the same time concise and provide definitive answers to all stated requirements. The decision should eliminate uncertainty in the statement. An alternative or conditional decision cannot be made (either property or money; recovery of money after receipt or allocation of money by the Government).

2. The court bases its decision only on the evidence provided by the parties and examined at the court session. In accordance with paragraph 6 of the normative resolution of the Supreme Court No. 5 of July 11, 2003 "On the judicial decision", the inclusion in the operative part of the decision of the conclusions of the court on that part of the claims, which were not considered in substance, is unacceptable. The court's conclusions on these requirements should be set out in a judicial act separate from the decision in the form of a ruling (on leaving the application without consideration, on termination of the proceedings).

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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