Comments on article 429. The procedure and time limits for appealing, protesting the ruling (resolution) of the court of first instance of the Civil Procedure Code of the Republic of Kazakhstan

1. A private complaint or protest may be filed against the ruling of the court of first instance in the cases provided for by this Code, as well as in cases where the court ruling blocks the possibility of further progress of the case, by the persons specified in Article 401 of this Code. Persons who are not involved in the case may also appeal against the court ruling if the ruling concerns their rights and interests. A private complaint or protest is filed within ten working days from the date of making the final determination.

2. No private complaint or protest is filed against the remaining rulings of the court of first instance, including those made on the spot and recorded in the minutes of the court session, but objections may be included in the appeal or protest.

3. In the event of an appeal or protest against a ruling issued during a court proceeding that ended in a decision, the case is sent to a higher court only after the expiration of the time limit set for appealing the decision. At the same time, if an appeal or protest is filed against the decision, the verification of a private complaint or protest is carried out by the court that examines the case on appeal.

4. A private complaint or protest is filed with the court that issued this ruling, accompanied by copies of documents on the number of persons participating in the case, which the judge sends or hands over to them. After receiving a private complaint or protest, the judge sends the civil case or materials to the court of appeal.

5. Private complaints and protests are accepted and considered in accordance with the procedure established by this chapter for accepting and considering appeals and protests.

In accordance with the procedure provided for in Article 414 of this Code, the court of appeal shall notify the persons participating in the case of the time and place of consideration of a private complaint or protest. The non-appearance of the persons participating in the case at the court session of the court of appeal does not prevent their consideration.

6. Based on the results of consideration of a private complaint or protest, the court of appeal issues a ruling on:

1) leaving the court ruling unchanged, and not satisfying a private complaint or protest;

2) the annulment of the court ruling in whole or in part and the transfer of the issue for reconsideration to the court of first instance;

3) cancellation of the court ruling in whole or in part and resolution of the issue on the merits;

4) changing the definition.

7. Rulings of the court of appeal issued on a private complaint or protest on the return of statements of claim, suspension of proceedings on the case, leaving statements of claim without consideration are not subject to appeal and protest. In the cases established by this Code, rulings of the court of appeal that block the possibility of further progress of the case may be appealed and protested.

1. A court ruling is a judicial act that, as a rule, resolves various issues arising during the consideration of civil cases, materials, as well as during the execution of judicial acts. Due to the fact that the court ruling serves as the basis for the emergence, modification, termination of procedural, and in some cases, material rights and obligations, the civil procedure law provides for the possibility of appealing the court ruling. It follows from the first part of the commented article that the ruling of the court of first instance may be appealed in cases where this is expressly provided for by the CPC, as well as when the court ruling blocks the possibility of further movement of the case.

2. In other cases, when an appeal or protest against a ruling is not permitted by law, a private complaint or protest is not filed, but objections may be included in the appeal or protest. The same provision applies to a court ruling issued by the court on the spot and recorded in the minutes of the meeting.The parties, other persons involved in the case and those not involved in the case, if the ruling concerns their rights and interests, as well as the prosecutor, have the right to appeal the court ruling.The law provides for a ten-day period for appealing a court ruling, calculated in working days from the date of making the final ruling.The current CPC provides for the possibility of appealing the following court rulings: on transfer of the case to another court (part three of Article 34), on securing evidence (part three of Article 70), on leaving the application without consideration (part two of Article 106, part two of Article 280), on refusal to extend or restore the missed procedural period (part six of Article 126), on refusal to accept or the return of the application (part four of Article 138), the refusal to cancel the court order (part two of Article 142), the refusal to accept the statement of claim (part five of Article 151), the return of the statement of claim (part four of Article 152), on the issues of securing the claim (Article 161), on the termination of proceedings in view of the rejection of the claim (part three of Article 170), on the approval of the settlement agreement (part seven of Article 177), on the correction of the decision (part three of Article 235), on the refusal to make an additional decision (part three of Article 236), the court on clarification of the decision (part three of Article 237), on the issue of postponement or installment of execution of the decision, on changing the method and procedure for its execution (part three of Article 238), on indexing the amounts of money awarded (part three of Article 239), on the issuance of a duplicate of the enforcement document (part five of Article 242), on the immediate execution of the decision (part four of Article 244), on the postponement, installment of the execution of the court decision, on changing the method and procedure for its execution, on the approval of a settlement agreement, an agreement on the settlement of a dispute (conflict) in mediation (part four of the article 246), on the reversal of the execution of the decision (part four of Article 248), on the consideration of the bailiff's submission (part two of Article 249), on the issue of a writ of execution for the enforcement of an arbitral award (part two of article 254), on the enforcement of an arbitral award (part three of article 255), a private ruling (part four of article 270), on the suspension of proceedings (article 275), on the termination of proceedings (part four of article 278), on the abandonment of a statement of claim without consideration (part two of Article 280), etc.

3. Part three of the commented article regulates the procedure for sending a case to an appellate instance and the specifics of its appeal in the event of an appeal (protest) against the ruling on the case, which was completed by a subsequent decision. In order to create appropriate conditions for appealing (protesting) a decision taken on the merits, the law provides for the possibility of sending a case to a court of appeal on a private complaint (protest) against a court ruling after the expiration of the time limit for appealing (protesting) the main judicial act (court decision). In judicial practice, there are often cases of appeal by persons participating in the case against both the decision and the ruling of the court of first instance. Civil cases often go to the court of appeal based on private and appellate complaints filed by different participants in the case. In such cases, the question may arise about the procedure for reviewing the case if a private complaint (protest) is subject to consideration by a single panel, and an appeal (protest) - in the collegiate.The procedure for the appellate review of a civil case in the event of an appeal (protest) against both the ruling of the court of first instance issued during the consideration of the case and the court decision is regulated in the commented article.Verification of a private complaint (protest) and an appeal (protest), if they are received simultaneously, is carried out by the same composition of the court of appeal in a collegial manner, departing from the general rules provided for in Article 402 of the CPC. This approach meets the requirements of simplifying judicial proceedings and complies with the principle of procedural economy.

4. The commented article generally provides for the general conditions and procedure for the consideration of civil cases in the court of appeal on a private complaint (protest), similar to the procedure for reviewing cases on appeal (protest). A private complaint or protest is filed with the court that issued the contested ruling, with copies of documents attached according to the number of persons participating in the case.

5. The above-mentioned conclusion is also based on the provision of the fifth part of Article 429GPC, which establishes that the acceptance and consideration of a private complaint (protest) is carried out in accordance with the procedure provided for in the chapter on the consideration of cases on appeal, protest. This means the extension of the rules governing the appeal (protest) proceedings to the review procedure in the event of an appeal (protest) against a court ruling. An exception may be the features provided for in Article 429 of the CPC.

6. Part six of the commented article provides for the following results of the review of the case on a private complaint (protest). The Court of appeal may: to leave the contested court ruling unchanged, and the private complaint (protest) without satisfaction; to cancel the court ruling in whole or in part and refer the issue for reconsideration to the court of first instance; to cancel the court ruling in whole or in part and resolve the issue on its merits; change the definition.The above-mentioned provisions of the procedural law mean that the general grounds for revoking or changing a court decision on appeal, provided for in Article 427 of the CPC, are also applied when reviewing a case based on a private complaint (protest) against a court ruling. As a rule, if, upon cancellation of the ruling of the court of first instance, the consideration of a civil case on a private complaint (protest) is not particularly difficult on the basis of the collected or additionally submitted case materials, the court of appeal may consider the matter on its merits. Most cases fall into this category. At the same time, if, upon cancellation of an unjustified ruling of the court of first instance, consideration of the case requires resolution of the dispute on the merits, the relevant issue may be referred for reconsideration, for example, in the case of cancellation of the ruling on termination of proceedings or leaving the application without consideration.

7. Following the general principle of the permissibility of appealing (protesting) a court ruling that prevents further progress of the case, part seven of the commented article provides for the possibility of appealing or protesting such a ruling of the court of appeal. At the same time, rulings that do not block the possibility of further movement of the case, as well as rulings on a private complaint, a protest on the return of a claim, suspension of proceedings on a case, or leaving an application without consideration, are not subject to further appeal or protest.

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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