Comments on article 62. Legal representatives of the Civil Procedure Code of the Republic of Kazakhstan

1. The rights, freedoms, and legitimate interests of incapacitated citizens, minors, and persons recognized by a court as having limited legal capacity are protected in court by their parents, adoptive parents, guardians, curators, foster carers, or other persons replacing them, who submit to the court documents certifying their authority.2. In a case in which a citizen who is recognized as missing in accordance with the established procedure must participate, the person who exercises custody of the property of the missing citizen acts as his representative.3. In a case in which the heir of a person who has died or has been declared deceased in accordance with the procedure established by law, if the inheritance has not yet been accepted by anyone, the person to whom the inheritance property has been transferred to the trust management acts as the heir's representative.4. Legal representatives shall perform on behalf of the represented all procedural actions, the right to perform which belongs to the represented, subject to the restrictions provided by law. Legal representatives may assign another representative to handle the case in court.The legal representative of a minor, a person recognized as legally incompetent, or a person recognized as missing in court, performs all procedural actions in the interests of the represented person when considering disputes involving the property of the ward.The legal representative of a minor, a person recognized as having limited legal capacity, independently performs all procedural actions in the consideration of cases in the interests of this person., the subject of which are obligations arising from the scope of limited rights. In other disputes, a person with limited legal capacity performs procedural actions and carries out procedural duties independently.5. Legal representatives and representatives on instructions are not entitled to perform procedural actions in their own interests or contrary to the interests of the represented.

Legal representation is assumed in relation to natural persons by virtue of legally defined grounds established by law. It differs from voluntary representation, since it provides for representation, if necessary, of a certain category of persons: incapacitated citizens, persons who do not have full legal capacity or are recognized as having limited legal capacity, who are called legal representatives (parents, adoptive parents, guardians or trustees).The court must take into account the provisions of the CPC and the Civil Code governing civil procedural capacity, legal capacity and incapacity.Guardianship and guardianship are forms of protection of personal and property rights and interests of citizens. In the case when legislative acts allow marriage before the age of eighteen, a citizen who has not reached the age of eighteen acquires full legal capacity from the time of marriage. All citizens have equal legal capacity, unless otherwise established by legislative acts. When considering the issue of legal representation, the court must establish what grounds exist for this type of representation. For example, when a marriage is dissolved in court, the minor spouse is legally capable and legal representation in such cases is not required by virtue of the above.Along with legal representatives, parents, and adoptive parents, minor children may also participate in the court session. In disputes concerning the determination of a child's place of residence, the court has the right to involve the children along with their legal representatives. This right is enshrined in the KBS, which establishes that a child has the right to express his or her opinion when resolving any issue affecting his or her interests in the family, as well as to be heard during any judicial or administrative proceedings. Taking into account the opinion of a child who has reached the age of ten is mandatory, except in cases where it contradicts his interests. In cases stipulated by the KBS, the guardianship and guardianship authorities or the court may make a decision only with the consent of a child who has reached the age of ten.In some cases, minors can conduct their own business and the issue of involving legal representatives in the process depends on the court. The norms of the KBS governing the property rights of a child establish that the child's right to dispose of property belonging to him by right of ownership is determined by Articles 22 and 23 of the Civil Code. In connection with the above, when discussing issues of legal representation, it is necessary to keep in mind the norms of the Civil Code and the KBS.Lawsuits can be filed against both legal representatives and minors. When determining the subject of responsibility for the claims, the courts sometimes make mistakes. For example, a high school teacher who was performing her work duties was knocked down by a 10th grade student K. on the school floor, resulting in a concussion, a fractured right shoulder blade and a torn ligament of a key joint, which caused temporary disability. She filed a claim for damages against K., the nth school, which was satisfied by the court. The damage was collected from the school and from K. The court stated that the school did not properly carry out work to ensure the safety of teachers and students of the school. By changing the court's decision, collecting damages from the minor's parents, who were also involved as co-defendants by the court of first instance, the board of civil cases of the regional court indicated that, according to paragraph 2 of Article 951 of the Civil Code, moral damage is compensated by the harm-doer if the offender is guilty. In this regard, the parents who did not provide proper upbringing should be responsible for the careless actions of the son, which caused damage to the plaintiff's health. In addition, the board referred to paragraph 20 of the normative resolution of the Supreme Court No. 9 dated July 9, 1999 "On certain issues of application by courts of the Republic of Kazakhstan of legislation on compensation for damage caused to health." According to the regulatory decree, the imposition of responsibility for compensation for harm by minor children who do not have property and independent earnings is possible with the guilty behavior of parents (adoptive parents, guardians) in the form of their failure to properly educate or care for a minor, condoning his illegal actions.____________________________21 Bulletin of the Supreme Court No. 3, 2007, p. 56.

Legal representation does not exclude the possibility of participation in the judicial process along with the legal representative and representatives of the guardianship authority. This is possible not only when resolving the issue of determining the child's place of residence, but also in other cases. For example, in the case of a dispute over the property rights of a child (for housing, salary, allowances, scholarships, etc.).Guardianship or guardianship is also established to protect the property and personal non-property rights and interests of legally incompetent or disabled adults.A citizen who, due to mental illness or dementia, cannot understand the meaning of his actions or direct them is recognized as legally incompetent, and therefore custody is established over him (Article 26 of the Civil Code). In cases where a citizen puts his family in a difficult financial situation due to the abuse of alcoholic beverages or narcotic substances, he may be limited by a court in his legal capacity in accordance with the procedure established by the CPC, and guardianship is established over him.2. Legislation also provides for another type of guardianship, such as custody of the property of a person recognized as missing (Article 29 of the Civil Code). In a case in which a citizen who is recognized as missing in accordance with the established procedure must participate, the person who exercises custody of the missing person's property acts as his representative. In the event of a dispute, for example, over property belonging to a person recognized as missing, the guardian participates in court as his representative. As a rule, guardianship is established at the request of the persons concerned.3. There are cases of legal representation in relation to the heirs of a person who has died or has been declared deceased in accordance with the established procedure, if the inheritance has not yet been accepted by anyone, if there is hereditary property. The guardian or guardian appointed to protect and manage the inherited property acts as the legal representative. The latter is granted the right to participate in all court cases related to the interests of the heirs before accepting the inheritance.4. All the powers of legal representatives to perform procedural actions must be confirmed by appropriate documents with all the restrictions provided for by law. For example: proof of family ties - a birth certificate of children; in relation to guardians and guardians - a court decision and a corresponding decision of the authorized body, etc. This may be in cases where it is necessary to ensure proper protection of the rights of minors and to prevent abuse of their rights by their legal representatives. Sometimes, in order to avoid fulfilling obligations in the courts, legal representatives use arguments about the violation of the rights of minors when challenging transactions in which they themselves were participants. Meanwhile, initially, being the legal representative of a minor child, based on his interests, they could not conclude such transactions. These arguments are mistakenly accepted by the courts and the demands are satisfied in the absence of legitimate grounds. For example, to secure a loan agreement in the amount of 68820700 tenge between the bank and the LLP, the founder of which was D., the latter concluded a pledge agreement with the bank for an apartment belonging to her on the right of personal ownership, with consent to its extrajudicial sale with a sale price of 2500,000 tenge. After receiving the money, without paying off the loan later, she filed a lawsuit to declare the pledge agreement invalid in the interests of a minor child and one of the grounds indicated a violation of his housing rights. A similar claim was filed by the guardianship and guardianship authority in the interests of a minor child against D. and the bank on the same grounds. The court's decision satisfied the claim. Recognizing the court's decision as illegal, the supervisory board of the Supreme Court pointed out that D. She has not fulfilled her obligations to repay the loan and the stated argument cannot be taken into account. The disputed apartment was purchased on the basis of a purchase and sale agreement. By virtue of Article 13 of the Law "On Housing Relations" and Article 227 of the Civil Code, the mandatory consent to dispose of common property applies only to privatized housing.When resolving disputes, the court should keep in mind the restrictions established by the norms of the Civil Code and special laws. For example, for transactions of legal representatives of minors (guardians) established in the KBS, or transactions of legal representatives with limited legal capacity, legal representatives may entrust the conduct of the case in court to another representative. A joint mixed representation may also be provided. For example, a legal representative may enter into an agreement with a lawyer to conduct a case in court and take part in it himself. At the same time, the court must ensure equal respect for the rights of both representatives in accordance with this chapter.__________________22 Bulletin of the Supreme Court No. 4, 2007, p. 37.

Additional comment

1. Legal representation is provided for the protection of the rights and legitimate interests of citizens who are incapacitated, have limited legal capacity and are missing, that is, persons who cannot choose their own representative personally. The basis for the emergence of legal representation is a legal fact explicitly stated in the law: kinship, adoption, the decision of the guardianship authority on the appointment of a guardian, trustee or foster carer.By virtue of Article 164 of the Civil Code, representation of the interests of incapacitated persons is carried out by their legal representatives. Accordingly, a copy of the decision on the appointment of an incapacitated person as a guardian is submitted to the court.Parents deprived of parental rights cannot be legal representatives of minors. In accordance with article 67 of the KBS, a child has the right to protect his rights and legitimate interests. The protection of the rights and legitimate interests of a child is carried out by the parents or other legal representatives of the child, and in cases provided for by legislative acts of the Republic of Kazakhstan, by the body performing the functions of guardianship or guardianship, by the prosecutor and the court, as well as by internal affairs bodies and other state bodies within their competence. A minor who is recognized as fully capable in accordance with the laws of the Republic of Kazakhstan, that is, emancipated, has the right to independently exercise his rights and duties, including the right to protect his interests, until reaching the age of majority.The child has the right to protection from abuse by parents or other legal representatives. In case of violation of the rights and legitimate interests of the child, including in case of non-fulfillment or improper fulfillment by parents or other legal representatives of duties related to the maintenance, upbringing, education of the child, or in case of abuse of parental (guardianship, guardianship) rights, the child has the right to independently apply for protection of his rights to the body performing the functions of guardianship or guardianship, and in case of upon reaching the age of fourteen, to the court.2. If a missing citizen is a party to the case, his interests will be represented by the guardian of his property. The guardian of the property of a citizen recognized as missing, submits to the court a decision on the appointment of his guardian. By virtue of Article 29 of the Civil Code, custody is established over the property of a person recognized as missing on the basis of a court decision. The guardianship and guardianship authority, at the request of the persons concerned, appoints a guardian to protect and manage the property and before the expiration of one year from the date of receipt of the latest information about the whereabouts of the missing person.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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