Comments on article 272. The obligation of the court to suspend the proceedings of the Civil Procedure Code of the Republic of Kazakhstan

1. The court is obliged to suspend the proceedings in the following cases::1) the death of a citizen or the reorganization or liquidation of a legal entity, if the disputed legal relationship allows for succession; 2) recognition of a citizen as legally incompetent; 3) the defendant's stay in a combatant unit of the Armed Forces, other troops and military formations of the Republic of Kazakhstan or the request of the plaintiff, who is in a combatant unit of the Armed Forces, other troops and military formations of the Republic of Kazakhstan; 4) the impossibility of considering this case before resolving another case being considered in civil, criminal or administrative proceedings; 5) if he considers that the law or other normative legal act to be applied in this case infringes on the rights and freedoms of man and citizen enshrined in the Constitution, and applies to the Constitutional Council of the Republic of Kazakhstan with a proposal to declare this act unconstitutional, as well as if it becomes known, that the Constitutional Council, on the initiative of another court, verifies the constitutionality of the normative legal act to be applied in this case; 6) requesting a foreign court to provide legal assistance; 7) concluding a mediation agreement between the parties and the mediator. Upon extension of the mediation period, the parties must inform the court about this by a joint written notification; 8) receipt of a copy of the court's decision on admission to proceedings filed on the basis of an international treaty ratified by the Republic of Kazakhstan, an application for the return of a child illegally transferred to the Republic of Kazakhstan or held in the Republic of Kazakhstan; or on the exercise of access rights in relation to the child, if the child has not reached the age at which the specified international agreement is reached, ratified by the Republic of Kazakhstan, is not applicable to this child. Suspension of proceedings in a case is the temporary termination by a court of procedural actions at the stages of preparing a case for trial or trial, caused by objective, i.e. circumstances beyond the control of the court and the persons involved in the case, which hinder the further development of the process and in respect of which it is impossible to determine when their action will end.

1. When considering civil cases, it is not uncommon for there to be a need to suspend proceedings, usually due to circumstances beyond the control of the court and the persons involved in the case. The suspension of proceedings in a case is a break in the court's procedural actions caused by the presence of circumstances preventing further proceedings in a civil case. The suspension of proceedings in a case may be carried out either on the initiative of the court or at the request of the persons participating in the case.

Commentary to the Code of Civil Procedure of the Russian Federation, ed. Zhuikova V.M. and Treushnikova M.K.

The reason for the suspension is a certain group of legal facts. These facts are characterized by the fact that they: a) are objective in nature, i.e. their occurrence and termination do not depend on the will and discretion of the court or the persons involved in the case; b) are exhaustively specified in the law; c) the time of their expiration is not precisely known to either the court or the persons involved in the case.. The suspension of the proceedings is possible only on the grounds specified in Articles 272-273 of the CPC. Therefore, the court, suspending the proceedings in the case, has no right to refer to other circumstances not specified in the law. If one or more grounds arise that give the court the right to suspend the proceedings in the case, both the court and the persons participating in the case may take the initiative to suspend the proceedings by filing a corresponding petition.Suspension of proceedings may take place at any stage of the process (except for the stage of initiation of the case). Most often, the issue of suspension arises at the stage of the trial. However, when preparing a case for trial, the judge may also encounter a circumstance by virtue of which the case can or should be suspended. Now the issue of suspending the case must be decided in a preliminary court hearing (see the commentary to Article 172 of the CPC).The suspension of a civil case has significant differences from the adjournment of the case. They are as follows:a) the grounds for suspending the proceedings are fully specified in the law. The grounds for postponing the case are only partially indicated in the CPC, since it is simply impossible to list them all.;

b) the grounds for suspension are due to objective reasons that do not depend on the will and discretion of the parties and the court (for example, the death of a citizen who was a party; military actions; incapacity of the party, etc.). Postponement of the case, as a rule, is due to subjective reasons (for example, the party's request for additional evidence; the defendant's desire to present counterclaim; non-appearance of any of the participants in the process, etc.); c) the proceedings are suspended indefinitely. The legislator clarifies that the time of suspension of the case cannot exceed the period of validity of the circumstance that caused the suspension of proceedings. For example, if the proceedings were suspended due to the recognition of a party as legally incompetent, then, after a legal representative is appointed to this party, the proceedings should be resumed. Postponement of a case always occurs for a certain period of time. Therefore, when postponing a case, the court is always obliged to indicate the time (day and hour) of the next court session; d) when suspending the proceedings, any procedural actions are excluded. Postponement of the case, on the contrary, is aimed at performing certain procedural actions (collecting additional evidence, enabling the defendant to prepare a counterclaim or invite a lawyer, etc.); e) the court's ruling on suspending the case must be made in writing. The court usually issues a ruling on adjournment of the case orally and enters it into the minutes of the court session; f) the ruling on suspension of proceedings may be appealed to a higher court, as it hinders the further progress of the civil process, except in cases established by the CPC (for example, a ruling on the appointment of an expert examination, etc.). The decision on postponement is not subject to appeal, since the period of time for which the case is postponed is relatively short and the process is considered ongoing.The suspension of proceedings on a case simultaneously suspends the course of all the remaining procedural time limits (Article 125 of the CPC). From the date of the resumption of proceedings in the case, the course of the procedural time limits continues. In cases of postponement of the case, the procedural time limits are not suspended. The circumstances indicated in the commented article relate not only to the plaintiff and the defendant, but also to third parties who file independent claims regarding the subject matter of the dispute (see commentary to article 51 of the CPC), since their procedural position is similar to that of the plaintiff. Since the chapter on the suspension of proceedings is of general importance for all civil cases, its provisions can be applied by the court at any stage of the civil process. The grounds for suspending proceedings are divided into mandatory (Article 272 of the CPC) and optional (Article 273 of the CPC).

1) The first reason obliging the court to suspend the proceedings in the case is the death of a citizen or the reorganization of a legal entity that were parties to the case. If a citizen who participated in the case as a party (or a third party with independent claims) has died, the case is suspended upon presentation to the court of a death certificate issued by the civil registration authority. Suspension of proceedings on a case is also possible if a citizen is declared dead in a special proceeding (see the commentary to Chapter 34 of the CPC). And in this case, the fact of death must be registered with the civil registration authorities.In the event of the death of a citizen, procedural succession is possible only on the basis of succession in the field of material legal relations. Therefore, if a disputed material legal relationship does not allow for legal succession (for example, on the recovery of alimony, on compensation for damage caused to the health of a citizen, on reinstatement at work, etc.), the suspension of proceedings should not take place. Within the meaning of Article 272 of the CPC, assignment of a claim and transfer of debt may be grounds for postponing, but not suspending, a civil case.The protection of creditors' rights in the event of liquidation of an organization is carried out in accordance with Article 51 of the Civil Code. It is necessary to take into account the provisions of the regulatory decree of the Supreme Court No. 4 of October 28, 2005 "On the practice of applying legislation on compensation for damage caused to the life and health of citizens during the liquidation of a legal entity as a result of bankruptcy."

2) The loss of legal capacity as grounds for suspending proceedings in a case should first of all be understood as the recognition of a citizen by a court in accordance with the procedure established by law as completely incompetent (see commentary to Chapter 35 of the CPC).Suspension of proceedings in a case is also allowed if a citizen (plaintiff, defendant, or a third person with independent claims) is declared incompetent or has limited legal capacity on the grounds specified in Articles 26 and 27 of the Civil Code. The court that is considering the case against these persons must be provided with copies of court decisions recognizing them as legally incompetent or with limited legal capacity, respectively.When deciding whether to suspend proceedings in a case, the court must first find out whether the guardianship and guardianship authority has appointed a guardian to the incapacitated and a trustee to the limited legal capacity. If such persons are appointed, they are called by the court to participate in the case. The suspension of the proceedings is not necessary here. If the issue of appointing a guardian or trustee has not been resolved, the proceedings should be suspended. Suspension of proceedings in a case involving a person with limited legal capacity is not allowed if the subject of the dispute in court is a civil or other material legal relationship that is not related to the monetary income of a person with limited legal capacity, or if the person with limited legal capacity must bear independent property responsibility for transactions, as well as respond to a claim for compensation for damage caused by him (Article 27 of the Civil Code).

3) Subparagraph 3) of the commented article provides for extreme situations in which both the defendant and the plaintiff (or a third party with independent claims) may find themselves in the course of civil proceedings. This situation includes the participation of the plaintiff or the defendant in hostilities.However, the decision to suspend the proceedings depends on who exactly is in the war zone. If the defendant is there, the court is obliged to suspend the proceedings. The suspension of proceedings is not necessary only when the defendant sends a statement to the court agreeing to consider the case in his absence. If the plaintiff participates in the hostilities, the court has the right to suspend the proceedings only at the request of the plaintiff. Otherwise, the suspension of the proceedings would entail a violation of the plaintiff's right to judicial protection. The suspension of the proceedings should be carried out in the interests of the parties, and not to their detriment.Article 272 of the CPC does not specify whether the parties should have the status of military personnel and serve in certain military formations. It seems that the status of a serviceman and military service in military formations is not necessary. A citizen can take part in combat operations without being a military man (for example, he can be a medical worker, be in a partisan detachment, perform rescue duties, etc.).

4) The court is obliged to suspend the proceedings in cases where it is impossible to make a decision on the case due to the fact that another case has not been considered in civil, administrative or criminal proceedings. The reason for the suspension in this case is that the decision in another civil, administrative or criminal case is of prejudicial importance. For example, for some reason, a civil plaintiff did not file a civil claim before the end of the preliminary investigation in a criminal case and is filing this claim in civil proceedings. The court that accepted this claim is obliged to suspend its consideration until the criminal case is considered on its merits and the verdict on it enters into legal force. Or the plaintiff filed a claim for compensation for damage caused to his health. The proceedings in this case should also be suspended until the issue of the percentage of the plaintiff's loss of professional ability to work and the appointment of a pension is administratively resolved, since the determination of the amount of lost earnings in a civil case depends on these facts, and the claim is filed.A civil case is suspended on the grounds under consideration, not because there is a civil, administrative or criminal case pending before another court, but because, that for this reason it is impossible to resolve the suspended civil case, since the circumstances of these cases are interrelated. It should be borne in mind that filing, for example, a motion for cassation review of a court decision in another civil case cannot serve as a basis for suspending proceedings, even if this decision may have a prejudicial significance for the case under consideration. It is impossible to suspend the proceedings in a civil case if the verification of some facts is conducted by the prosecutor's office or other non-judicial body.

5) If the court considers that a law or other normative legal act to be applied in this case infringes on the rights and freedoms of man and citizen enshrined in the Constitution, and applies to the Constitutional Council with a proposal to declare this act unconstitutional, as well as if it becomes known that the Constitutional Council, on the initiative of another court, is verifying the constitutionality of the normative If there is no legal act to be applied in this case, then the proceedings in the civil case are suspended. This requirement is related to the fact that, in accordance with paragraph 4 of Article 17 of the Constitutional Law "On the Constitutional Council of the Republic of Kazakhstan", the Constitutional Council, in accordance with paragraph 2 of Article 72 of the Constitution, considers appeals from courts to declare an act unconstitutional if the court, in accordance with article 78 of the Constitution, considers that a law or other normative legal act subject to It infringes on the rights and freedoms of a person and citizen enshrined in the Constitution; the court issues a reasoned ruling on the need to appeal to the Constitutional Council. The request itself is made in writing in the form of a separate document. In a request to verify the constitutionality of a law that has been applied or is subject to application, the court must indicate the exact name, date of adoption, source of publication, and other information about the legislative act to be verified, as well as the reasons for which it concluded that the request was sent. The text of the law to be verified and the translation into Russian of all documents and other materials presented in another language should be attached to the request.

6) Subparagraph 6) of the commented article provides for the obligation to suspend proceedings in connection with requesting legal assistance from a foreign court. The basis for suspending the proceedings under this subparagraph of the article is a written request to instruct a court of a foreign state to provide legal assistance. The court draws up an order for the provision of legal assistance for the performance of procedural and other actions on the territory of another state in writing on the appropriate letterhead, signs and certifies with a stamp.

The request for legal assistance must specify:

1) the name of the court from which the order originates;

2) the name and address of the body to which the assignment is sent;3) the name and number of the case in which legal assistance is requested; 4) information about the individual: surname, first name, patronymic, date and place of birth, place of residence, citizenship, occupation; about the legal entity: name, legal address or location, bank details; 5) if there are representatives of the persons specified in subparagraph 4) of this paragraph, their surnames, first names, patronymics and addresses; 6) the need to ensure the confidentiality of the receipt of the order and information received during its execution; 7) the content of the order, as well as other information necessary for its execution.

The order for the delivery of the document must also indicate the exact address of the recipient and the name of the document being served. The order for the delivery of documents is accompanied by duly executed documents: a notice of court proceedings, copies of the statement of claim, etc. Correspondence related to the provision of legal assistance on the basis of legal assistance agreements concluded by the Republic of Kazakhstan is conducted by the courts of the Republic of Kazakhstan in Kazakh (Russian). The translation of documents sent to non-CIS countries as part of the provision of legal assistance is carried out by the initiator of the correspondence. If necessary, if the correspondence is related to the provision of legal assistance in the interests of the State, the documents are translated into a foreign language. All documents sent by the courts in order to provide legal assistance must be drawn up in accordance with the prescribed form, written in clear language, printed, carefully and accurately decorated, and stamped. When providing legal assistance on the basis of international treaties on the provision of legal assistance in civil, family and criminal matters ratified by the Republic of Kazakhstan, courts should use forms in the appropriate two languages.

7) Subparagraph 7) of the commented article provides for the obligation of the court to suspend the proceedings in connection with the conclusion by the parties of a mediation agreement with the mediator. Mediation is carried out by mutual agreement of the parties and upon conclusion of a mediation agreement between them. Mediation in the settlement of disputes arising from civil, labor, family and other legal relations involving individuals and (or) legal entities can be applied both before going to court and after the start of legal proceedings. Judges have no right to force the parties to mediation in any form. An offer to a party to seek mediation may be made at the request of the other party or by the court. Mediation begins on the day the parties to the mediation conclude a mediation agreement. The terms of mediation are determined by the mediation agreement, taking into account the requirements of paragraph 1 of Article 23 and paragraph 4 of Article 24 of the Law "On Mediation".

8) Subparagraph 8) of the commented article provides for the obligation to suspend proceedings in the case of receipt in a case related to a dispute about a child, a copy of the court ruling on the admission to proceedings of an application filed on the basis of an international treaty ratified by the Republic of Kazakhstan for the return of a child illegally transferred to the Republic of Kazakhstan or held in the Republic of Kazakhstan, or for the implementation of with respect to the child's access rights, if the child has not reached the age at which the specified international agreement is reached., ratified by the Republic of Kazakhstan, is not applicable to this child.

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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