Comments on Article 4. Tasks of civil proceedings of the Civil Procedure Code of the Republic of Kazakhstan

The objectives of civil proceedings are to protect and restore violated or disputed rights, freedoms, and legitimate interests of citizens, the State, and legal entities, to respect the rule of law in civil and public law relations, to promote the peaceful settlement of disputes, to prevent offenses, and to foster respect for the law and the court in society.        The rights and freedoms proclaimed by the Constitution cannot be guaranteed by themselves without their due judicial protection. The problem of protecting fundamental human rights and freedoms is one of the universal ones - these are values that must be protected as a matter of priority in all spheres of public and state life.      It is no coincidence that article 8 of the Universal Declaration of Human Rights, adopted by the UN General Assembly on December 10, 1948, stipulates that everyone has the right to effective restoration of their rights by competent national courts in case of violation of their fundamental rights granted to them by the Constitution or law.

An important means of ensuring the fulfillment of this task is the right of everyone to judicial protection of their rights and freedoms, established by article 13 of the Constitution.

Judicial power, in accordance with the Constitution, is one of the types of state power exercised on behalf of the Republic of Kazakhstan, with the purpose of protecting the rights, freedoms and legitimate interests of citizens and organizations, as well as ensuring the implementation of the Constitution, laws and other normative legal acts, international treaties.

In accordance with paragraph 2 of article 76 of the Constitution, judicial power extends to all cases and disputes arising on the basis of the Constitution, laws, other normative legal acts, and international treaties of the Republic. Justice in the Republic is carried out only by the court through the forms of legal proceedings established by law.

The protection and restoration of violated or disputed rights, freedoms, and legitimate interests of individuals and citizens, the State, and legal entities is a priority area for the exercise of judicial authority. Human rights and freedoms belong to everyone from birth, are recognized as absolute and inalienable, and determine the content and application of laws and other regulatory legal acts. These fundamental human rights, enshrined in the Constitution, are inviolable and are subject to protection in accordance with the procedure established by law.

The commented article establishes the following tasks of civil proceedings:1) protection and restoration of violated or disputed rights, freedoms and legitimate interests of citizens, the state and legal entities; 2) observance of legality in civil turnover and public law relations; 3) promotion of peaceful settlement of disputes; 4) prevention of offenses and formation of a respectful attitude towards the law and the court in society.

The objectives of the civil procedure are closely related to the purpose of the civil procedure. Civil proceedings are a system of procedural actions regulated by the norms of civil procedure law, the purpose of which is to protect violated or disputed rights, freedoms and legally protected interests of citizens, the state and legal entities, respect for legality, prevention of offenses using mediation, strengthening the authority of the court.

The Court's task to promote the peaceful settlement of a dispute is based on the practice of international justice to resolve disputes through negotiation, consultation, and pre-trial agreement between the parties. For example, according to paragraphs 43 and 44 of the Statute of the Court of the Eurasian Economic Union (Annex No. 2 to the Treaty on the Eurasian Economic Union of May 29, 2014 - hereinafter referred to as the Treaty), a dispute is not accepted for consideration by the Court without the applicant's prior appeal to a member State or the Eurasian Economic Commission to resolve the issue in a pre-trial manner through consultations, negotiations or by other means provided for by the Treaty and international treaties within the Union, with the exception of cases expressly provided for by the Treaty. If the Member State or the Commission has not taken measures to resolve the issue in a pre-trial manner within three months from the date of receipt of the applicant's appeal to them, the application for dispute resolution may be sent to the Court. In national courts, a judge at all stages of civil proceedings, before being removed to the conference room, must create conditions for the parties to freely express their will to conclude a settlement agreement, an agreement on the settlement of a dispute (conflict) through mediation, or an agreement on the settlement of a dispute through a participatory procedure.

The prevention of offenses (or, in other words, prevention) is much less important in civil substantive and procedural law than, for example, in criminal law. However, in the course of civil proceedings, a solution to this problem is also achieved. At the same time, the civil procedure solves the tasks of both general and private prevention. First of all, by resolving the dispute and bringing the defendant to certain property liability (for example, collecting damages and penalties from him), the court thereby helps to ensure that this person does not commit such violations in the future. The correct and lawful resolution of a dispute and the restoration of legality have an indirect effect on the behavior of all other persons, warning them against committing violations of other people's rights and legally protected interests.

At the same time, the court has some real mechanisms for the prevention of offenses. Such a mechanism is, for example, a private court ruling. Thus, Article 270 of the CPC stipulates that if the court finds cases of violations of the rule of law, it has the right to issue and send a private ruling, and if violations are committed by government agencies, officials and civil servants, the court issues and sends a private ruling to the relevant organizations, officials or other persons performing managerial functions, who are required to report on the measures they have taken within one month.

Protecting the violated rights of specific citizens or organizations, bringing them into line with the law, contribute to the overall strengthening of law and order, as well as the formation of a respectful attitude towards the law and the court in society, strengthening the authority and importance of the judiciary. The tasks of the civil procedure are closely related to its principles.

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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