Comments on article 438. Reasons and grounds for requesting cases and reviewing judicial acts that have entered into force of the Civil Procedure Code of the Republic of Kazakhstan

1. A civil case may be requested from the relevant court for review in cassation by the Chairman of the Supreme Court of the Republic of Kazakhstan, judges of the Supreme Court of the Republic of Kazakhstan, as well as the Prosecutor General of the Republic of Kazakhstan or, on his behalf, Deputy Prosecutor General of the Republic of Kazakhstan, regional prosecutors and equivalent prosecutors.

2. The grounds for requesting cases are the petitions of the persons specified in the first part of Article 435 of this Code, as well as the initiative of the Chairman of the Supreme Court of the Republic of Kazakhstan, the Prosecutor General of the Republic of Kazakhstan within their competence.

3. In the case of a claim for a case, a request for review of judicial acts is subject to consideration in a court of cassation instance within thirty working days from the date of receipt of the case.

4. A request for the recovery of a case shall be executed by the court no later than five working days from the date of its receipt by the court. 

If the case is claimed by the prosecutor, the petition for filing a cassation appeal is subject to consideration by the prosecutor within thirty working days from the date of receipt of the case by the prosecutor's office.

5. The grounds for cassation review of judicial acts that have entered into legal force, specified in the first part of Article 434 of this Code, are significant violations of the norms of substantive and procedural law provided for in Article 427 of this Code, which led to the issuance of an unlawful judicial act.

6. The grounds for the cassation review of judicial acts that have entered into legal force, specified in parts three and five of Article 434 of this Code, are:

1) cases when the execution of the adopted resolution may lead to serious irreversible consequences for the life, health of people or for the economy and security of the Republic of Kazakhstan;

2) cases when the adopted resolution violates the rights and legitimate interests of an indefinite circle of persons or other public interests;

3) cases when the adopted resolution violates the uniformity in the interpretation and application of legal norms by the courts.

1. The legislator has established an exhaustive range of officials who have the right to claim civil cases from the relevant court for review in cassation: the Chairman of the Supreme Court, judges of the Supreme Court, as well as the Prosecutor General or, on his behalf, the Deputy Prosecutor General, regional prosecutors and equivalent prosecutors. The right to appeal a civil case by the Deputy Prosecutor General, regional prosecutors and equivalent prosecutors is possible only on the instructions of the Prosecutor General. Consequently, a written instruction from the Prosecutor General must be attached to the request of these persons for the recovery of civil cases.

2. The grounds for requesting cases are the petitions of the persons specified in the first part of Article 435 of the CPC - the parties, persons participating in the case, other persons whose interests are affected by judicial acts, and their representatives, as well as the initiative of the Chairman of the Supreme Court, the Prosecutor General within their competence.

3. An application for judicial review does not always entail the claim of a case. If there are grounds provided for in the first part of Article 442 of the CPC, the petition must be returned to the persons who submitted them. At the stage of preliminary consideration, if there are no grounds for his return, the judge of the Supreme Court will claim the case. The need to claim a case is determined by the judge independently, based on the content of the petition, the documents attached to it and the judicial acts that took place in the case. The question of the existence or absence of grounds is resolved by the judge within ten days from the date of receipt of the petition. If the case is claimed, the request for judicial review is subject to consideration by the court of cassation within thirty working days from the date of receipt of the case.

4. The legislator has set a deadline for the execution of the request of the court of cassation for the recovery of the case from the courts - no later than five working days from the date of its receipt by the court. There is also a deadline for considering a petition for filing a cassation appeal in the event that the case is claimed by the prosecutor - thirty working days from the date of receipt of the case by the prosecutor's office.

The detailed regulation of the time limits for the claim of civil cases by persons who have the right to claim it, the time limit for executing requests by local courts, the time limits for finding cases for review and making procedural decisions is aimed at eliminating red tape and timely responding to violations of the rights of participants in the process committed by the courts, if any.

5. Not every judicial act can be reviewed by the cassation instance of the Supreme Court, since this instance conducts an audit only for the presence or absence of significant violations of the law and does not accept additional evidence. Violation of the norms of the CPC or intentional non-compliance with them may entail negative legal consequences for the persons involved in the case. In this regard, it is necessary to comply with all established rules for the presentation and disclosure of evidence at the stage of preparing a case for trial. The grounds for cassation review of judicial acts that have entered into force, as specified in part one of Article 434 of the CPC - judicial acts of local and other courts in case of compliance with the appeal procedure, as well as judicial acts of the specialized judicial board of the Supreme Court are significant violations of substantive and procedural law provided for in Article 427 of the CPC (see commentary to Article 427 of the CPC).

6. The grounds for cassation review of judicial acts that have entered into force, specified in parts three and five of Article 434 of the CPC, are judicial acts of local and other courts that have entered into force in case of non-compliance with the appellate procedure for their appeal, as well as in cases of -

1) considered in a simplified procedure;

2) a completed 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;

3) related to the property interests of individuals - if the amount of the claim is less than two thousand monthly calculation indices and legal entities if the amount of the claim is less than thirty thousand monthly calculation indices;

4) terminated due to the waiver of the claim;

5) in cases of insolvency settlement, as well as in cases of disputes arising within the framework of rehabilitation and bankruptcy procedures, including the recognition of transactions concluded by the debtor as invalid, the return of the debtor's property, the recovery of receivables from claims of the bankrupt or rehabilitation manager, as well as decisions of the cassation instance are exceptional cases, those requiring a response in the interests of the State and ensuring uniformity of judicial practice.

That is, it is:

1) cases when the execution of the adopted resolution may lead to serious irreversible consequences for the life, health of people or for the economy and security of the Republic of Kazakhstan;

2) cases when the adopted resolution violates the rights and legitimate interests of an indefinite circle of persons or other public interests;

3) cases when the adopted resolution violates the uniformity in the interpretation and application of legal norms by the courts. If these grounds exist, the Chairman of the Supreme Court submits a submission or the Prosecutor General submits a protest on the revision of the judicial act that has entered into force.

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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