Comments on article 240. Entry of the court decision into force of the Civil Procedure Code of the Republic of Kazakhstan

1. The decision of the court of first instance shall enter into legal force upon the expiration of the time limit for its appeal, if it has not been appealed or protested. 

2. Court decisions on the restructuring of financial institutions or an organization that is part of a banking conglomerate as a parent organization and is not a financial organization shall enter into force from the date of their announcement and shall be subject to immediate execution.

3. A court decision on the expulsion of a foreigner or a stateless person from the Republic of Kazakhstan shall enter into legal force from the date of the announcement of the decision.

4. A court decision rendered in cases provided for in Article 28 of this Code shall enter into legal force from the date of its announcement.

5. If a complaint or protest is filed on appeal, the decision, unless it is overturned and/or amended, shall enter into force from the moment the decision is announced by the court of appeal, and decisions on cases considered under the rules of part four of Article 27 of this Code shall enter into force from the date of the announcement of the decision. judicial Board of the Supreme Court of the Republic of Kazakhstan.6. Upon the entry into force of the court's decision, the parties and other persons participating in the case, as well as their legal successors, may not re-assert the same claims in court on the same grounds, as well as challenge the facts and legal relations established by the court in another process.

7. If, after the entry into force of the decision by which periodic payments are collected from the defendant, the circumstances affecting the determination of the amount of payments or their duration change, each party has the right to demand a change in the amount and timing of periodic payments by filing a new claim.

1. The rules for the entry into force of a decision are binding on all types of civil proceedings.The decision of the court of first instance shall enter into force upon the expiration of the time limit for appeal, if it has not been appealed or protested by the prosecutor, and if the decision has been appealed (protested) - from the date of the announcement of the judicial act by the court of appeal (see commentary to Article 431 of the CPC).According to Article 403 of the CPC, an appeal or protest may be filed within one month from the date of the final decision, with the exception of the cases established by this Code, and by persons who did not participate in the court proceedings - from the date of sending them a copy of the decision.Thus, the parties and other persons who appeared at the court session may file an appeal or protest within one month from the date of making the final decision. The deadline for making a final decision should not exceed five working days in accordance with part four of Article 223 of the CPC.A copy of the court decision must be sent by the court to the parties and other persons who did not appear at the court session no later than three working days from the date of the final decision. Proof of sending a copy of the decision may be, for example, a postal receipt. The time limit for appeal is calculated from the date of sending a copy of the judicial act. A short decision can be appealed according to the same rules (see commentary to Article 223 of the CPC).If a party has filed a motion for a reasoned decision, the court, in accordance with part five of Article 223 of the CPC, must produce a reasoned decision within five working days. The period of entry into force of a court decision is calculated taking into account the rules established in part three of Article 403 of the CPC (see commentary). Court decisions that have entered into force must comply with such qualities as irrefutability, exclusivity, prejudice and enforceability. The legal literature gives a concept to these formulations. Irrefutability is the impossibility of reviewing a decision in a court of appeal by virtue of its entry into force. The decision may be reviewed on appeal if the time limit for appeal is restored for a valid reason. Only in this case, the decision loses its validity and restores it after the case is reviewed on appeal. Exclusivity is the impossibility of re-applying to the court of first instance with an identical claim or statement resolved by a court decision that has entered into legal force. The exceptions are decisions that have entered into force if circumstances have changed.The property of the prejudice of a decision that has entered into legal force is that the established facts and legal relations cannot be challenged by the persons involved in the case in another case and do not need to be proved.Enforceability means the possibility of enforcement of a court decision that has entered into legal force. However, there are cases when it is allowed to execute a decision that has not entered into force (see the commentary to articles 243, 244 of the CPC).

2, 3, 4. The legislator made an exception and provided for other rules on the entry into force of decisions on certain categories of cases. This applies to the cases mentioned in parts two, three, and four of the commented article. In these categories of cases, the decision comes into legal force from the date of its announcement.

5. If an appeal is filed or a protest is brought to the appellate instance, the decision of the court of first instance shall enter into force from the date of the announcement of the decision of the court of appeal. If the court of appeal changes the decision or cancels it and resolves the case on its merits (makes a new decision), the decision of the court of appeal shall enter into force from the date of its announcement (see commentary to Article 431 of the CPC).For a decision in absentia, as well as for a decision on a case considered in a simplified (written) procedure, there is a special feature of calculating the time limit for filing an appeal. An appeal may be filed after five days from the date of receipt by the defendant of a copy of the absentee decision, if during this period he has not submitted an application for cancellation of the absentee decision. If the defendant filed an application for the cancellation of the absentee decision, then the appeal may be filed by him within one month from the date of the court of first instance ruling on the refusal to satisfy this application.

6. A retrial of a dispute between the same parties, on the same subject and on the same grounds, on which a court decision has entered into force, cannot take place, and the initiated case is subject to termination of proceedings (see commentary to subparagraph 2) of Article 277 of the CPC). The commented part of the article states that upon the entry into force of the court's decision, the parties and other persons involved in the case, as well as their legal successors, cannot re-assert the same claims in court on the same grounds, as well as challenge the facts and legal relations established by the court in another process. Meanwhile, in the practice of courts, there are cases in which evidence is disputed, which has been evaluated in another civil case, which ended with a decision. It would be correct in such a situation to refuse to accept the application (see comment to subparagraph 2) of the first part of Article 153 of the CPC).

7. The commented part of the article contains the provision that a court decision that has entered into legal force, which collects periodic payments, cannot be changed in the event of a change in circumstances affecting the determination of the amount of payments or their duration. In this case, each party has the right to demand a change in the amount and timing of payments by filing a new claim. For example, alimony was collected from a citizen for the maintenance of disabled parents in the amount of 10 monthly calculation indices. Subsequently, the defendant's circumstances changed, and his income decreased due to reaching retirement age, so he has the right to file a new claim for a reduction in the amount of payments being collected, taking into account his financial situation.

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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