Comments on article 68. Evaluation of evidence of the Civil Procedure Code of the Republic of Kazakhstan

1. Each piece of evidence is subject to assessment, taking into account its relevance, admissibility, and reliability, and all the evidence collected together is sufficient to resolve a civil case.2. In accordance with Article 16 of this Code, a judge evaluates evidence according to his inner conviction.3. The circumstances shall be considered established if one party does not dispute and accepts the evidence presented by the other party, or the contesting of evidence does not directly follow from the defendant's objection or the plaintiff's objection to the defendant's arguments.4. In the case of a petition for falsification submitted by the other party of evidence, the person who made such a statement is obliged to indicate the signs indicating the falsification of evidence.If the person who submitted the evidence recognizes the claim of its falsification as justified, the court excludes the evidence from the list of admissible and resolves the case on the basis of other evidence. 

5. Circumstances cannot be considered established if only copies of documents are provided to confirm them, when the need to present the original follows from the requirements of the law.The court also cannot consider the circumstances proved, which are confirmed only by a copy of a document or other written evidence when challenging its content, if:1) the original document has been lost and not handed over to the court; 2) the copies of this document submitted by each of the disputing parties are not identical to each other; 3) it is impossible to establish the content of the original document with the help of other evidence.6. The totality of evidence is considered sufficient to resolve a civil case if acceptable and reliable evidence has been collected that indisputably confirms the circumstances relevant to the case and has not been refuted by the other party.This article establishes the rules for the court's assessment of evidence. Evaluation of evidence is the determination of the relevance, admissibility of evidence, their reliability, sufficiency and the presence of mutual connection.The assessment of evidence given by the court has the character of preliminary, final and control.A preliminary assessment is called an assessment of evidence, which is given by a judge (court) during the acceptance, examination of evidence, that is, before being removed to a conference room to make a decision. As a result of the preliminary assessment, the court accepts the evidence as relevant and permissible, or refuses to accept the evidence, concludes that the evidence is insufficient and suggests that additional evidence be provided, etc.The court gives the final assessment of the evidence in the deliberation room when making a decision. As a result of this assessment, the court in its decision indicates the factual circumstances that it considers established (part five of Article 226 of the CPC). Circumstances are established without specifying evidence due to their indisputability, recognition of the fact, exemption from evidence, evidentiary presumptions, and disputed circumstances - with mandatory indication and assessment of evidence confirming these circumstances.The control assessment of evidence is carried out by higher courts during the review of the case.The preliminary and final assessment of evidence may be carried out by the court of appeal upon acceptance of new evidence (part two of Article 413 of the CPC).1. The court evaluates each piece of evidence in terms of relevance, admissibility, and reliability. The criteria for verifying evidence - relevance, admissibility, and reliability - are listed in the order in which the court verifies each piece of evidence.Each piece of evidence must relate to a specific circumstance relevant to the case, whether to confirm or refute it (see commentary to Article 64 of the CPC).The court checks whether each relevant evidence has been received in accordance with the procedure established by law (see commentary to Article 65 of the CPC). It is checked whether the evidence does not relate to information that is not acceptable as evidence (see the commentary to Article 66 of the CPC). The court also verifies the reliability of each piece of evidence deemed relevant and admissible by the court (see commentary to article 67 of the CPC).

All the evidence collected together is evaluated in terms of its sufficiency to resolve the civil case (see the commentary to part six of this article).2. The judge evaluates the evidence according to his inner conviction.According to the first part of Article 16 of the CPC, internal conviction is based on an impartial, comprehensive and complete examination of the evidence available in the case in their entirety, while the judge is guided by the law and conscience.An impartial examination of evidence means that the court is not interested in the case being resolved, and there is no bias or prejudice in evaluating evidence. A comprehensive review of evidence refers to the examination and evaluation of evidence, taking into account all statutory requirements for evidence. A full review of evidence is the taking into account and verification of every piece of evidence presented by the persons involved in the case.3. Part three of this article introduces a new rule that simplifies legal proceedings and eases the burden of proof for those involved in the case.This rule establishes the procedural consequences of a party's failure to fulfill its procedural obligation to prove the circumstances to which it refers as the grounds for its claims and objections, as well as the obligation to assert, challenge facts, provide evidence and objections to evidence (Part one of Article 72 of the CPC): if the party does not dispute and accepts the evidence presented by the other party, then the circumstances are considered to be established, in support of which these proofs are presented.To establish the circumstances, it is sufficient not only to acknowledge the evidence presented by the other party, but also to simply omit the evidence of the other party. This rule is a consequence of the passive behavior of a party who is obliged to declare to the court the actual circumstances of the case fully and truthfully, to speak out or submit to the court written documents refuting the facts alleged by the other party (part two of Article 46 of the CPC).This rule makes it necessary for a judge to clarify the position of the parties in relation to the evidence indicated and (or) presented by the other party from the stage of preparing the case for trial after receiving and studying the response to the claim.; to clarify whether a party disputes or acknowledges the evidence of the other party that is not indicated in the objection to the arguments of the other party (for example, the party did not pay attention, forgot to indicate its objections, etc.); to clarify the procedural evidentiary obligations and the legal consequences of failure to fulfill these obligations.4. A person participating in the case may claim that evidence submitted by the other party has been falsified. Falsification is one of the types of information manipulation, namely its distortion.; forgery, posing as a real thing, changing (usually for selfish purposes) the type or properties of objects, as well as using evidence that is obviously not valid.Only inanimate objects (various written documents, tangible media, etc.) can be falsified. Audio and video recordings, written and physical evidence can be the object of falsification. In this regard, it is possible to claim falsification of evidence only in relation to the specified evidence.Excluded from the range of evidence that may be falsified are:- explanations of the persons participating in the case, since failure to fulfill the obligation to declare the actual circumstances to the court truthfully (part two of Article 46 of the CPC) entails the procedural consequences provided for by the CPC;- witness testimony, since giving deliberately false testimony is punishable under Article 420 of the Criminal Code; 

- expert opinions, since the responsibility for giving a deliberately false conclusion is provided for in Article 420 of the Criminal Code.In the application for falsification of evidence, the applicant must indicate the signs indicating the falsification of evidence. For example, when disputing a multi-page document, a person points out that the text on the intermediate page, which is not signed and stamped, is made on a different printing device, the font and spacing differ from the font and spacing on other pages of the document, etc.The court clarifies the position of the party who submitted the evidence regarding the claim of falsification of evidence. The party who submitted the evidence has the right to recognize the statement as justified. Falsified evidence is inadmissible evidence according to subparagraph 8) of the first part of Article 66 of the CPC, in connection with which the court excludes this evidence from the list of admissible and resolves the case on the basis of the remaining available evidence. The court's ruling on the exclusion of evidence from the list of admissible evidence is recorded in the minutes of the court session.For falsifying evidence in a civil case, criminal liability is provided for a person participating in the case or his representative (parts one and five of Article 416 of the Criminal Code).If the party has not found the claim of falsification of evidence to be justified, the court explains to the persons participating in the case the right to provide additional evidence to confirm the factual circumstances or to refute the disputed evidence., or apply for the appointment of an expert examination to verify the reliability of evidence (part four of Article 82 of the CPC).5. Part five of this article establishes the specifics of evaluating written evidence. Written evidence is usually presented in the original (part five of Article 100 of the CPC). This rule ensures the court's obligation to directly examine the evidence in the case (part one of Article 186 of the CPC).If it is difficult to submit the original written evidence to the court, the court may require the submission of duly attested copies and extracts from such a document or to inspect and examine other written evidence at the place of their storage (part five of Article 100 of the CPC). The official documents having the legal force of originals are copies and extracts issued by state archives and their branches, departmental and private archives (paragraph 5 of Article 15 of the Law "On the National Archival Fund and Archives").The person participating in the case, submitting a copy of the document, It must indicate the location of the original and justify the impossibility or difficulty of presenting the original document for the subsequent resolution by the court of the issue of the possibility and methods of examining the document.The absence of the original document or the impossibility of presenting it to the court or examining it in other ways provided for by the norms of the CPC, in the absence or insufficiency of other evidence, entail the court's conclusion that the circumstances are unproven., in support of which a copy of the document is provided.As an exception to this rule, the court accepts a copy of the document as admissible evidence if the other party does not dispute the contents of the document presented in the copy.A person participating in the case has the right to challenge the contents of a copy of a document or other written evidence provided by the other party to confirm the factual circumstances. In this case, the court considers the circumstances to be unproven, which are confirmed only by a copy of the document or other written evidence, if: the original document has been lost and has not been handed over to the court; the disputing parties have provided the court with copies of this document that are not identical to each other; it is impossible to establish the content of the original document with the help of other evidence.These rules are established due to the fact that the absence of the original document precludes the possibility of conducting an expert examination to verify the authenticity of the document. Examination of light copies (photocopies) of the document cannot be carried out, since some of the properties of the original original document are not transferred to copies. The absence of other evidence makes it impossible to verify the authenticity of a copy of the document, which excludes a copy of the document or other written evidence from the list of acceptable and reliable evidence.6. All the evidence collected together is evaluated in terms of its sufficiency to resolve the civil case. The totality of evidence is sufficient to resolve a civil case if each circumstance relevant to the case and included in the subject of proof is confirmed by relevant, admissible, reliable evidence. At the same time, the existence of the established circumstances is beyond doubt, the contradictions in the evidence have been eliminated, that is, the court has established the factual basis of the dispute.In the legal literature, attention is drawn to the fact that a single indirect proof is always insufficient, since it allows us to draw only a tentative, rather than a reliable conclusion about the proven fact. Evidence that contradicts each other and those whose reliability is questionable (testimony of an interested witness, explanations of the parties that are not supported by other data, etc.) will also be insufficient. The evidence presented to confirm such complex facts as, for example, a person's poor or, conversely, good financial situation, the amount of damage caused to the victim's health, etc., may also be insufficient if they do not provide a complete picture of the person's sources of income or the victim's ability to continue working. Insufficient evidence cannot be used as the basis of a court decision until this deficiency is eliminated by collecting additional evidence.___________________36 Martynova M.G. Judicial evidence in civil proceedings //http://www.bestreferat.ru/referat-336605.html

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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