Comments on article 45. Civil procedural capacity of the Civil Procedure Code of the Republic of Kazakhstan

1. The ability to independently exercise their rights and perform their duties in court (civil procedural capacity) belongs in full to citizens who have reached the age of eighteen, legal entities.

2. The rights, freedoms and legitimate interests of minors between the ages of fourteen and eighteen, as well as citizens recognized as having limited legal capacity, are protected in court by their parents or other legal representatives. The court is obliged to involve minors themselves or citizens recognized as having limited legal capacity in such cases. At the request of the legal representatives of minors or citizens recognized as having limited legal capacity, the court may involve a prosecutor in the case.

3. The rights, freedoms and legitimate interests of minors under the age of fourteen, as well as citizens declared legally incompetent, are protected in court by their legal representatives, the prosecutor.

4. In cases provided for by law, in cases arising from civil, family, labor, cooperative and other legal relations and from transactions related to the disposal of earnings or income from entrepreneurial activities, minors between the ages of fourteen and eighteen have the right to personally defend their rights and legitimate interests in court.

5. Minors who are emancipated on the grounds provided for by law acquire full procedural capacity from the moment of emancipation.

6. The court has the right, at its discretion, to involve in cases the legal representatives of minors specified in parts four and five of this Article in order to assist them.

1. Civil procedural capacity is the ability of a participant in a civil proceeding to exercise procedural rights by his actions, to perform procedural duties in court both personally and through a representative.

They have full civil procedural legal capacity.:

1) citizens who have reached the age of eighteen;

2) organizations - from the moment of the emergence of procedural legal capacity;

3) minors - from the time of their marriage or declaration of full legal capacity (emancipation).The civil procedural legal capacity of legal entities, as their procedural legal capacity, arises from the moment of state registration and exists until its liquidation or reorganization. In this case, the procedural capacity is carried out by its bodies and representatives.

2. The amount of civil procedural capacity of citizens depends on their age. The rights, freedoms and legitimate interests of minors between the ages of fourteen and eighteen, as well as citizens recognized as having limited legal capacity, are protected in court by their parents or other legal representatives.

At the same time, the imperative requirement for the mandatory involvement of minors themselves, as well as citizens with limited legal capacity, should be maintained.

The meaning of simultaneous participation in the process of legal representatives of adults (citizens with limited legal capacity) is to ensure the real protection of the rights of these persons.

At the request of the legal representatives of minors or citizens recognized as having limited legal capacity, the court may involve the prosecutor in the case.3. The rights, freedoms and legitimate interests of minors under the age of fourteen, as well as citizens declared legally incompetent, are protected in court by their legal representatives, the prosecutor.

The Procedural Law contains a provision on the lack of procedural capacity for minors under the age of fourteen and for citizens who have been declared legally incompetent. All procedural actions in the interests of these persons are performed by their legal representatives. In addition, in order to protect the interests of these subjects, the prosecutor participates in the court session.

4. The legislator clearly distinguishes between substantive and procedural legal capacity (Articles 22, 22-1, 23 of the Civil Code). The commented norm deals exclusively with procedural capacity, and it contains a direct reference to the right of minors to judicial protection. The involvement of legal representatives in the case depends on the discretion of the court. Along with the procedural actions of the minor himself, the procedural actions performed in such cases by legal representatives have legal significance. However, unlike the third part of Article 45 of the CPC, priority should be given here to the expression of the will of the minor.

5. A minor may personally exercise his procedural rights and perform procedural duties in court from the time of marriage or declaration of his full legal capacity (emancipation).

If a minor is declared fully legally capable, the person is considered emancipated from the date of entry into force of the court's decision on emancipation.

The legal capacity acquired as a result of marriage remains in full even in the case of divorce until the age of eighteen.

The rule on maintaining financial capacity is also applicable to procedural capacity.

6. The court has the right, at its discretion, to involve in cases the legal representatives of minors specified in parts four and five of this Article in order to assist them.

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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