Comments on article 279. Grounds for leaving a statement of claim without consideration of the Civil Procedure Code of the Republic of Kazakhstan

The court leaves the statement of claim without consideration if:

1) the plaintiff has not complied with the pre-trial dispute settlement procedure established by law for this category of cases or stipulated by the contract, and the possibility of applying this procedure has not been lost;

2) the statement of claim was filed by an incompetent person;

3) the statement of claim is signed or filed by a person who does not have the authority to sign or present it.;

4) in the proceedings of this or another court or arbitration, there is a previously initiated case on a dispute between the same parties, on the same subject and on the same grounds;

5) an agreement has been concluded between the parties in accordance with the law on the transfer of the dispute to arbitration, unless otherwise provided by law.;

6) the plaintiff, who did not request a hearing in his absence, did not appear in court on a second summons.;

7) the person in whose interests the case was initiated did not support the stated claim;

8) the plaintiff has filed an application for the return of the statement of claim; 9) an application for the restoration of rights to lost bearer securities and warrant securities has been filed before the expiration of a three-month period from the date of publication;

10) an application for recognition of the right of communal ownership of an immovable has been submitted earlier than the time limit established by law, or in violation of the procedures provided for by law for fixing immovable property as ownerless;

11) the state fee has not been paid in accordance with the procedure established by part three of Article 105 and part two of Article 106 of this Code.;

12) information on publication in the mass media in cases of special claim proceedings provided for in Chapter 34 of this Code has not been provided.;

13) when considering a case in a special proceeding, it is established that there is a dispute about the law under the jurisdiction of the court, which is subject to consideration in the claim proceedings. Leaving an application without consideration is a procedural consequence of a violation by an interested person of the terms of applying to the court for protection of their rights and legitimate interests, which does not prevent the re-filing of an application to the court.

Unlike termination of proceedings, leaving an application without consideration only indicates a violation by the plaintiff (applicant) of the procedure established by law for exercising the right to judicial protection (for example, filing an application by a person who does not have the authority to sign it). An interested person only needs to comply with the relevant requirement of the procedural law (for example, to issue a power of attorney), and they can re-initiate proceedings on an identical application.72

1) It is necessary for the plaintiff to comply with the pre-trial dispute settlement procedure established by legislative acts for this category of cases, and the possibility of applying this procedure has not been lost. The parties may specify mandatory compliance with the preliminary pre-trial dispute settlement procedure in the contract they have concluded.

Commentary to the Code of Civil Procedure of the Russian Federation (2nd edition, revised and supplemented) ed. Shakaryan M.S.

If the disputing parties were unable to settle their dispute out of court, the person concerned has the right to file a claim on general grounds, and in this case the court has no right to return the application or leave it without consideration. This subparagraph cannot be extended to cases for which there is no mandatory pre-trial dispute resolution procedure. A preliminary out-of-court procedure for resolving a legal issue must also be followed in cases of establishing facts of legal significance (Article 265 of the CPC). An appeal to the court is allowed only if it is impossible for the applicant to obtain out of court the necessary documents certifying these facts, or if it is impossible to restore the lost documents.

2) Issues of legal capacity are regulated by civil and civil procedural legislation. The application of subparagraph 2) of Article 279 of the CPC is possible in two situations: the application was submitted to the court by an already incompetent person; the applicant was declared incompetent after he initiated proceedings in court. If the court accepted the application of an incapacitated person for production, this is a violation of the requirements of subparagraph 4) of the first part of Article 155 of the CPC. Having discovered such an error in the court session, the court leaves the application without consideration. A representative of an incapacitated person has the right to apply to the court with the same statement in his interests. If a person is declared legally incompetent after initiating a case in court, the court may not leave his application without consideration. The court should suspend the proceedings in accordance with Article 272 of the CPC until a representative of an incapacitated person enters the process (see the commentary to this article). Disability due to the age of the applicant is confirmed by the birth certificate. If a citizen is declared legally incompetent due to mental illness or dementia, the fact of incapacity must be confirmed by a court decision that has entered into force. An application can also be submitted to the court by a person with limited legal capacity. In these cases, the court should pay attention to the nature of the applicant's substantive claim. If it is not related to a property order (Article 18 of the Civil Code), the court has no right to leave the application without consideration.

3) The possibility of conducting a case through a representative is an inalienable right of the plaintiff and the applicant. However, these persons (principals) are required to formalize their relationship with the representative by issuing a power of attorney to him. A power of attorney is not issued only in cases of legal representation and representation carried out by the head of an organization acting as an organ of a legal entity. If a person who is not his representative and therefore does not have the right to file such an application has applied to the court in defense of the rights and interests of the represented person, it is left without consideration. The representative's right to sign a statement of claim (application) and present it to the court is one of the special powers of the representative. Each of these powers must be reflected in the representative's power of attorney. If the court mistakenly accepted such a claim, then the application must be dismissed by the court without consideration. At the same time, the civil procedure legislation (Article 55 of the CPC) provides for the right of State authorities, local governments, organizations and citizens, in cases provided for by law, to apply to the court in defense of the rights, freedoms and legitimate interests of others without having a power of attorney (Article 55 of the CPC). In such cases, the court has no right to leave the application without consideration.

4) The simultaneous presence of similar cases in the proceedings of different courts is unacceptable, since it is fraught with the danger of making both two identical and diametrically opposed decisions on the same legal dispute or other legal issue, which contradicts the interests of legality. If the court receives a statement on the dispute, identical to the one that is already in court proceedings, it is left without consideration. At the same time, the court must carefully ensure that the case pending in this or another court is conducted between the same parties, and also coincides with the newly received application on the subject and grounds.

5) Subparagraph 5) of the commented article provides a basis for leaving a statement of claim without consideration if there is an agreement on the transfer of the dispute to arbitration, unless otherwise provided by legislative acts of the Republic of Kazakhstan, or if an agreement has been concluded between the parties on the transfer of the dispute to arbitration in accordance with the requirements of the law in force at the time of the conclusion of the agreement. This ground indicates the objective impossibility of considering the case on its merits at this court session.

6), 7), 8) All three grounds for leaving an application without consideration relate only to the plaintiff who did not appear on a second summons to the court session, the person in whose interests the case was initiated, who did not support the stated claim; the plaintiff who filed an application for the return of the statement of claim.The court may leave the application without consideration on the basis of subparagraph 6) of the commented article only if the following conditions are simultaneously met: the plaintiff's failure to appear must be repeated; the plaintiff must be notified twice by the court of the time and place of the trial; the reasons for the plaintiff's non-appearance must be deemed disrespectful by the court; there must be no statement from the plaintiff about his consent to consider the case in his absence. In this case, the respondent's consent to leave the application without consideration is not required. When leaving a statement of claim without consideration due to the fact that the person in whose interests the case was initiated did not support the stated claim, or the plaintiff filed an application for the return of the statement of claim, the courts must bear in mind that such a statement of will by the plaintiff or his representative must be confirmed in writing or may be stated orally at a court hearing with mandatory recording of this statement in the minutes of the court session.

9) Chapter 46 of the CPC provides for the procedure for considering cases related to the restoration of rights to lost bearer securities and warrant securities (summoning proceedings). The commented norm stipulates that if an application for the restoration of rights to lost bearer securities and warrant securities is filed before the expiration of a three-month period from the date of publication, then such a statement of claim was subject to return when deciding whether to take the claim to court. This requirement is due to the fact that a publication on the initiation of proceedings for the restoration of rights to lost bearer securities and warrant securities must contain an offer to the holder of the document, the loss of which is claimed, within three months from the date of publication to file a statement to the court about their rights to this document. Therefore, the court has no right to consider such an application before the expiration of the three-month period.

10) It is provided that the application for recognition of the right of communal ownership was submitted earlier than the deadline established by law, or in violation of the procedures provided for by law for fixing immovable property as ownerless. It should be borne in mind that in accordance with paragraph 3 of Article 242 of the Civil Code, special rules for the acquisition of ownerless immovable property (housing) into communal ownership are defined. At the request of the akim's office, in whose territory such property has been identified, it must be registered by the body responsible for state registration of immovable property. After one year from the date of registration, at the request of the body authorized to manage communal property, the dwelling may be recognized by a court decision as ownerless and entered into communal ownership (normative resolution of the Supreme Court No. 3 of April 20, 2006 "On the practice of court consideration of disputes on the right to housing abandoned by the owner").

11) The ground is provided for leaving the statement of claim without consideration in connection with non-payment of the state fee in accordance with the procedure established by part three of Article 105 and part two of Article 106 of the CPC. It should be borne in mind that the state duty rates are specified in Article 535 of the Tax Code.

12) The ground for leaving a statement of claim without consideration is the failure to provide information on publication in the mass media in cases of special claim proceedings provided for in Chapter 34 of the CPC. Failure to provide information on publication in the media in cases of special proceedings precludes the possibility of considering the case, therefore, the court leaves the statement of claim without consideration, presenting the possibility of re-applying to the court after the elimination of these shortcomings.

13) If, during the consideration of a case in a special proceeding, it is established that there is a dispute about a right subordinate to the court that is subject to consideration in the claim proceedings, the application shall be left without consideration. The list of grounds for leaving an application without consideration contained in the CPC is exhaustive. For other reasons not provided for in the law, the court has no right to leave the application without consideration.

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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