Comments on article 403. The procedure and deadlines for filing appeals and protests of the Civil Procedure Code of the Republic of Kazakhstan

1. An appeal or protest is filed through the court that issued the decision. A complaint or protest received directly by the appellate instance is subject to referral to the court that issued the decision in order to comply with the requirements of part two of this Article and Article 405 of this Code.

2. An appeal or protest shall be filed with the court with copies according to the number of persons participating in the case. If necessary, the judge may require the person filing the complaint or protest to provide copies of the written evidence attached to the complaint or protest according to the number of persons participating in the case.

3. 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.

4. An appeal or protest in cases of challenging decisions, conclusions, and orders of the authorized body based on the results of an audit of public procurement may be filed within ten days from the date of the decision.

5. The issue of restoring the time limit for filing an appeal or protest is considered by the court of first instance in accordance with the procedure provided for in Article 126 of this Code.

1. The commented article defines the procedure for filing an appeal and protest against the decision of the court of first instance. The appeal procedure established by this article also applies to cases of filing a private complaint (protest) with the exceptions specified in Article 429 of the CPC. In the latter case, we are talking about the specifics of appealing and challenging the ruling (resolution) of the court of first instance, including the ten-day appeal period, etc.

2. Taking into account the provision of the procedural law on the possibility for the parties to use new evidence in accordance with the procedure established by Article 413 of the CPC, on the basis of part two of the commented article, the court of first instance may impose on the person filing the complaint or protest the obligation to provide copies of written evidence attached to the complaint or protest according to the number of persons participating in the case. At the same time, the court may exercise its powers in accordance with the procedure established by Article 406 of the CPC, by leaving an appeal or protest without motion.It should be borne in mind that, on the basis of Article 404 of the CPC, appeals and protests can be filed with the court in the form of electronic documents through the electronic service "Judicial Cabinet" of the Internet resource of the Supreme Court. This form of appeal to the court was developed in accordance with the CPC, CPC, laws "On the procedure for considering appeals from individuals and legal entities" and "On electronic document and electronic digital signature." The Judicial Cabinet service has implemented mandatory signing of documents sent to judicial authorities with an electronic digital signature of the National Certification Center of the Republic of Kazakhstan. When filing an appeal or protest in the form of an electronic document, the attached copies of the documents may also be issued in the form of electronic documents.

3. Part three of Article 403 of the CPC establishes a general time limit for appeal and appeal against a decision of the court of first instance within one month. The calculation of the specified period begins on the day following the date of the final court decision.It should be noted that the wording of the second part of Article 222 of the CPC provides for the procedure for announcing the operative part of the court decision, announcing the date of the final decision and receiving a copy by the participants in the case. The fourth part of Article 223 of the CPC stipulates that the final court decision must be made no later than five working days after the announcement of its operative part.The time limit for an appeal (protest) is calculated not from the date of the announcement of the operative part of the decision of the court of first instance, but from the date of making such a decision in final form.In respect of persons who did not participate in the case, but who, in accordance with the fourth part of Article 401 of the CPC, were granted the right of appeal, protest, the term for performing these actions is calculated from the date of sending them a copy of the decision. In the case of a court decision that resolves the issue of the rights and obligations of persons not involved in the case, these persons may apply to the court for a copy of the decision and appeal against such decision within a period calculated from the date of sending them a copy.

4. The time limit for appealing a court decision, established in part three of Article 403 of the CPC, is general. At the same time, the CPC provides for other special terms of appeal, for example, in cases of challenging decisions, conclusions, and orders of an authorized body based on the results of an audit of public procurement (part four of Article 403 of the CPC), on the return of a child or on the exercise of access rights (Article 398 of the CPC). A separate procedure and time limit for appeal is also provided for in Article 264 of the CPC for a decision in absentia.

5. In order to accurately comply with the time limit for appealing or protesting a court decision, it may be recommended that persons participating in the case, when appealing or protesting a court decision, attach a copy of a postal document confirming the date of sending and receiving a copy of the decision. In case of missing the period of appeal or appeal against a court decision, a petition for the restoration of this procedural period must be sent together with the appeal or protest. A civil case may be sent to the court of appeal based on the results of consideration by the court of first instance of the issue of restoring the time limit for filing an appeal or protest. In case of refusal to restore the time limit for appeal or protest, the appeal or protest is returned to the person who submitted them by the ruling of the court of first instance. A private complaint or protest may be filed against this ruling on the basis of part six of Article 126 of the CPC.

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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