Comments on article 30. Jurisdiction at the choice of the plaintiff of the Civil Procedure Code of the Republic of Kazakhstan

1. A claim against a defendant whose place of residence is unknown or who does not have a place of residence in the Republic of Kazakhstan may be filed at the location of his immovable property or at his last known place of residence.2. A claim against a legal entity may also be filed at the location of its property.3. A claim arising from the activities of a branch or representative office of a legal entity may also be filed at the location of the branch or representative office.4. Claims for establishing paternity and for the recovery of alimony may be filed by the plaintiff at his place of residence.5. Claims for compensation for damage caused by injury or other damage to health, as well as caused by the death of the breadwinner, may be filed by the plaintiff at his place of residence or at the place of injury. In case of liquidation of a legal entity recognized in accordance with the established procedure as responsible for harm caused to life or health, claims are filed at the location of the relevant administrator of the budget program.6. Claims arising from contracts that specify the place of performance may also be filed at the place of performance of the contract.7. Claims for divorce may be filed at the plaintiff's place of residence if minor children live with him.8. Claims for the restoration of property and non-property rights violated by unlawful prosecution or administrative liability, unlawful use of procedural coercion or measures to ensure proceedings in the case of an administrative offense may be filed at the place of residence or location of the plaintiff.9. Consumer protection claims may be filed at the plaintiff's place of residence or at the place of conclusion or execution of the contract.10. Claims for damages caused by a ship collision, as well as for compensation for assistance and rescue at sea, may also be filed at the location of the defendant or the ship's home port.11. Claims for recovery of insurance payments under the insurance contract may be filed at the place of residence of the plaintiff or at the location of the defendant.12. Claims against several defendants may be filed at the place of residence or location of one of the defendants at the plaintiff's choice.13. The choice between several courts that have jurisdiction over the case according to this article belongs to the plaintiff, with the exception of the jurisdiction established by Article 31 of this Code.

1, 2. Jurisdiction of the plaintiff's choice or alternative jurisdiction is an exception to the general rule of territorial jurisdiction, which gives the plaintiff the right to choose the court to which it is most convenient for him to apply.The first and second parts of the commented article provide cases of filing a claim at the location of the defendant's property, which must be registered with him or be the subject of a dispute.

3. Branches and representative offices are not legal entities. They are endowed with property by the legal entity that created them and act on the basis of approved regulations. Since only legal entities can be a party by virtue of Articles 43-45 of the CPC, respectively, they cannot act as a party to the case, the claim against them is filed at the location of the legal entity as a general rule.In fact, branches and representative offices, by virtue of Article 43 of the Civil Code, are separate divisions of a legal entity located outside its location, authorized to perform its functions, and therefore it is advisable to file claims arising from their activities at their location, especially when these are branches and representative offices of foreign legal entities.

4. Parts four and seven were introduced by the legislator in the interests of plaintiffs who have dependents and live together with minor children and are unable, for objective reasons, to apply to the court at the defendant's place of residence.At the same time, for the plaintiff to exercise the right to choose jurisdiction, it is sufficient to file a claim for only one of the grounds listed in this paragraph, for example, only to establish paternity.

5. A literal interpretation of this provision allows us to conclude that the plaintiff has the right to apply to the court at his place of residence or at the place of injury with a claim for compensation for damage to the person whose health was damaged in the event of his death - dependents who have lost a breadwinner.In case of liquidation of a legal entity recognized in accordance with the established procedure as responsible for harm caused to life or health, claims are filed at the location of the relevant administrator of the budget program.

6. Claims arising from the contracts may be filed at the place of performance of the contract, if this is provided for by the contract.Thus, according to paragraph 2 of the regulatory decree of the Supreme Court No. 5 dated December 14, 2012 "On the application of legislation on public procurement by Courts", lawsuits on public procurement disputes are filed at the location of the defendant. Claims arising from public procurement contracts that specify the place of execution, at the choice of the plaintiff, are also filed at the place of execution of the contract in accordance with part six of Article 30 of the CPC.In accordance with paragraph 1 of Article 21, paragraph 2 of Article 31, paragraph 1 of Article 35-3 of the Law "On Public Procurement", the submission of an application for participation in public procurement (price offer) is a form of consent to supply goods, perform work, and provide services in accordance with the requirements and conditions established by public procurement. In this regard, claims for recognition of a potential supplier as an unscrupulous participant in public procurement conducted by these methods, at the choice of the plaintiff, may also be filed at the place of performance of the contract.Also, in accordance with this part, claims on labor disputes are subject to consideration, since labor activity is carried out on the basis of an employment contract. The employer's employment contract clearly defines the place of performance of work duties, as well as, as a rule, the place of payment of wages. These actions are part of the performance of an employment contract, therefore, labor disputes at the choice of the plaintiff can also be considered at the place of performance of labor duties or receipt of wages. In cases of this category, the evidence base of the plaintiff-employee mainly consists of testimony from other employees and other persons, which it is almost impossible for the plaintiff to present to a court located in another region.

7. See the commentary to the fourth part of this article.

8. The facts of illegal criminal or administrative prosecution, illegal application of procedural coercion measures or measures to ensure proceedings in the case of an administrative offense are gross violations of legality, as a result of which the legitimate rights and interests of citizens and legal entities are seriously affected. The plaintiffs at their place of residence or location have the right to apply for the restoration of property and non-property rights.

9. In accordance with paragraph 4 of the regulatory decree of the Supreme Court No. 7 of July 25, 1996 "On the practice of application by courts of legislation on consumer protection", claims are filed against an individual at his place of residence and against a legal entity at his place of residence. At the same time, at the plaintiff's choice, consumer protection claims can be filed at the plaintiff's place of residence or at the place of conclusion or execution of the contract, therefore, when accepting a statement of claim, the courts must take into account the plaintiff's right to choose the place of consideration of the case.When applying to the court with claims of consumer protection societies, the plaintiffs will be the persons in whose interests the claim is filed, therefore, the jurisdiction of the claim will be determined by their place of residence, and not by the location of consumer protection societies.

10. With regard to disputes concerning compensation for losses caused by a ship collision, as well as the recovery of remuneration for assistance and rescue at sea, an alternative jurisdiction has been established: at the location of the defendant or the ship's home port.

11. The equality of the parties under insurance contracts has been expressed in the fact that claims for recovery of insurance payments under the insurance contract may be filed at the place of residence of the plaintiff or at the location of the defendant.

12. We are talking about filing a claim against several defendants located in different regions. The right to choose between the courts, which, according to the general rule of territorial jurisdiction and the rules of alternative jurisdiction, have jurisdiction over the case, belongs exclusively to the plaintiff.

13. The provision of part thirteen of the commented article provides that the claims listed in parts one to twelve of Article 30 of the CPC may be filed at the choice of the plaintiff both under the general rule of territorial jurisdiction - at the place of residence or location of the defendant, and in the court specified in the commented article, with the exception of the exclusive jurisdiction established by Article 31 GPC.

LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

Astana, 2016

UDC 347 (574)  

By 63

ISBN 978-601-236-042-4

 Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases