Comments on article 427. Grounds for revocation or amendment of a court decision on appeal of the Civil Procedure Code of the Republic of Kazakhstan

1. The grounds for revocation or amendment of a court decision on appeal are:

1) incorrect definition and clarification of the range of circumstances relevant to the case;

2) the lack of evidence of circumstances relevant to the case established by the court of first instance;

3) inconsistency of the conclusions of the court of first instance set out in the decision with the circumstances of the case;

4) violation or improper application of the norms of substantive or procedural law; 5) there is no record of a court session or a separate procedural action in the case, when the obligation to conduct it is provided for by this Code.

2. The norms of substantive law are considered violated or improperly applied if the court:

1) did not apply the applicable law; 2) applied the non-applicable law;

3) misinterpreted the law.

3. An essentially correct court decision cannot be overturned for purely formal reasons. Violation or improper application of the norms of substantive or procedural law is the basis for changing or canceling the decision of the court of first instance, if this violation led or could have led to the adoption of an incorrect decision.If the court has made the correct decision, but these violations have been committed, the decision provides the reasons, norms of substantive and procedural law, according to which the decision must be left unchanged.

4. The decision of the court of first instance is subject to cancellation in any case if:1) the case was considered in an illegal composition of the court or in violation of the rules of jurisdiction;

2) the case was considered by the court in the absence of any of the persons participating in the case who were not properly notified of the time and place of the court session, with the exception of cases considered in accordance with the rules of Article 133 of this Code.;

3) during the consideration of the case, the rules on the language of the proceedings were violated; 4) the court resolved the issue of the rights and obligations of persons not involved in the case.;

5) the decision is not signed by the judge or signed by the wrong judge who reviewed and resolved the case.

5. If there are grounds provided for in subparagraph 2) According to the fourth part of this article, the court of appeal overturns the decision of the court of first instance, which issues a ruling. The ruling specifies the transition to the consideration of the case according to the rules of procedure in the court of first instance, the actions to be performed by the persons involved in the case, and the timing of their commission. Upon completion of these actions, the case is considered, as a rule, in the same composition of the court of appeal.In all other cases, including the cancellation of a court decision with a new decision, the court of appeal considers the case in one court session with the adoption of one judicial act.6. Failure to resolve or incorrect resolution of the issue of the distribution of court costs is not a reason for the cancellation or amendment of the court decision. The operative part of the resolution indicates the distribution of court costs.

1. This article contains a list of grounds on which a court decision may be overturned or amended on appeal.The grounds provided for in the commented article for the cancellation or amendment of a court decision are primarily related to violations of the fundamental principles of legality and reasonableness of a court decision (Articles 6, 68, 224 of the CPC), as well as significant violations of substantive or procedural law. When assessing the materiality of the grounds for revocation or amendment of a court decision on appeal, it is necessary to take into account the provisions of part four of this article, which regulates the unconditional grounds for revocation of judicial acts.

2. In the first and second parts of the commented article, the legislator provides for formal grounds for revoking or changing a court decision, characterized by the above-mentioned features.

3. At the same time, it should be noted that the application of the provisions of parts one and two of Article 427 of the CPC is possible in conjunction with the norms contained in part three of the same article, which states that a substantially correct court decision cannot be overturned for formal reasons alone, but a violation or improper application of substantive or procedural rules. There may be grounds for revoking or changing a court decision if this violation has led or could have led to an incorrect decision.Thus, The fact that the court committed violations under parts one and two of Article 427 of the CPC during the consideration of a civil case may be the basis for canceling or changing a court decision if this led or could have led to an incorrect decision.The legislator does not disclose the definition of "formal considerations" in the CPC. Usually, minor violations are understood as such, which do not affect the fundamental principles of the civil procedure and do not infringe on the rights and interests of the persons involved in the case. In turn, questions of procedure, that is, elements of the procedural order, are close to the concept of formal considerations. The provisions of substantive law can also be considered as such. In any case, it should be agreed that the rule on the inadmissibility of annulment or amendment of a court decision for formal reasons is applicable only in the case of minor violations, as well as the absence of any other shortcomings, which together did not affect the correctness of the court's decision on the merits of the dispute.

4. Part four of the commented article deals with the unconditional grounds for the annulment of a court decision, which significantly violate the requirements of procedural legislation. Commenting on the norms contained in this part, we note the following.The consideration of a case by an illegal court presupposes a violation of the provisions of Articles 35, 37, 38 of the CPC (requirements for sole and collegial composition of the court, restriction on the replacement of judges or the composition of judges, the provision on the inadmissibility of the judge's repeated participation in the consideration of the case and the recusal (self-recusal) of the judge).Violation of the rules of jurisdiction implies, first of all, failure to comply with the requirements of part three of Article 8, articles 26-33 of the CPC. In case of cancellation of the court decision on the grounds of violation of the rule on jurisdiction, the case is subject to referral to the court to which it is subject.Consideration of a civil case in court without proper notification to any of the persons involved in the case may be grounds for revoking a court decision, primarily if the court's decision directly violated the legitimate rights and interests of such a person due to restrictions on his right to judicial protection. At the same time, the legislator allows an exception from the provision of subparagraph 2) of part four of Article 427 of the CPC for cases considered in accordance with Article 133 of the CPC using the so-called "public method" of notification (delivery of a court notice to the KSK, housing and Communal Services, local government, administration at the last known place of work of the person involved in the case).Violation of the rules on the language of judicial proceedings in subparagraph 3) should be understood as failure by the court to comply with the requirements of Article 14 of the CPC.The court's resolution of the issue of the rights and obligations of persons not involved in the case involves the case, when, on the basis of a court decision, the rights or obligations of these persons directly arise, change or terminate. It should be noted that the commented provision of this subparagraph (4) should be interpreted literally. In this case, first of all, we are talking about the direct resolution in the operative part of the court's decision of the issue of the emergence, modification and termination of the rights and obligations of persons not involved in the case. Of course, such a violation directly infringes on a person's right to judicial protection.In judicial practice, there are cases when a court decision invalidates various acts, on the basis of which subsequent legal actions are performed, for example, other transactions involving the disposal of property. In such cases, the question arises as to whether the court should, on its own initiative, involve third parties in the case, whose rights and interests arose after and on the basis of the act disputed in court. Due to the fact that the court's invalidation of the act on the basis of which subsequent legal actions were performed may entail legal consequences for other interested parties, it can be recommended to involve these persons in the case as third parties who do not make independent claims on the subject of the dispute under the second part of Article 51 of the CPC.In accordance with Articles 223, 226 of the CPC, the court decision must be signed by the judge who issued it. Failure to comply with this provision is one of the grounds for the cancellation of the court's decision under subparagraph 5) of part four of the commented article.

5. Part five of the commented article defines a separate procedure for the court of appeal to adopt its act based on the results of the review of the case in the event of consideration of the case without proper notification of any of the persons involved in the case (subparagraph 2) of part four of Article 427 of the CPC). At the same time, it should be assumed that the consideration of the case by the court of appeal on the merits according to the rules of the court of first instance after the cancellation of the decision should be carried out in compliance with the requirement of a collegial or sole composition provided for in Article 402 of the CPC. At the same time, the provision of the fifth part of Article 427 of the CPC that, according to the rules of the court of first instance, the case is considered, as a rule, in the same composition of the court of appeal should be applied taking into account the general rules of record keeping in court.6. The failure or incorrect resolution by the court of first instance of the issue of the distribution of court costs under the commented part of Article 427 of the CPC is not a reason for the cancellation or amendment of a court decision. The law prescribes that in such a case, the court of appeal, by its decision, distributes the specified court costs.

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