Comments on article 416. Proceedings before the Court of Appeal of the Civil Procedure Code of the Republic of Kazakhstan
1. In the cases provided for in the second part of Article 54 of this Code, the prosecutor shall participate in the session of the court of appeal, who shall give an opinion on the case. The court of appeal shall notify the prosecutor of the cases to be considered in the appellate instance, and of the decisions taken on the cases considered in the appellate instance.
2. The court of appeal, in accordance with the rules provided for the court of first instance, examines additional materials submitted by the parties or requested at their request, additional expert opinions received, and interrogates the persons summoned to the meeting.
1. In cases affecting the interests of the state, as well as on the protection of public interests or citizens who cannot defend themselves independently, as well as when the need for the prosecutor's participation is recognized by the court or prosecutor, the prosecutor participates in the meeting of the court of appeal. The second paragraph of the first part of Article 416 of the CPC stipulates that the court of appeal notifies the prosecutor of the cases to be considered in the appellate instance, decisions taken on cases considered in the appellate instance. It should be noted that the procedure for notifying the prosecutor of the consideration of cases in the court of appeal is regulated by the second part of Article 54 of the CPC. The prosecutor is notified of all cases assigned for consideration by posting relevant information on the court's Internet resource.Providing information to the prosecutor on cases considered in the appellate instance requires technical permission and can also be done by sending a copy of the judicial act to the prosecutor or posting it for access in electronic form.
2. In the second part of the commented article, we are talking about the examination by the court of appeal of evidence in the case according to the rules of the court of first instance. This concerns the application by the Court of Appeal of the norms of Chapter 7, Articles 413, 420 of the CPC.In practice, there is such a position when the commented provision makes it possible for the court of appeal to consider disputes under the rules of the court of first instance in full. There is reason to believe that such an understanding of the norm of the second part of Article 416 of the CPC goes beyond its content, since this rule of law, as noted above, contains a provision only on the examination of evidence, which is only part of the judicial proceedings. This conclusion is also justified by the direct prescription of the third part of Article 413 of the CPC on the inadmissibility of changing the subject matter and grounds of the claim, replacing the defendant, and filing a counterclaim. These actions go beyond the scope of the subject of appeal, as defined in Article 412 of the CPC. Thus, the court of appeal has no authority to consider amendments and additions to the statement of claim or any other statement. This provision is an important condition aimed at ensuring procedural economy, rational dispute resolution in court and prevention of abuse of procedural rights.
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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