Comments on article 69. Providing evidence of the Civil Procedure Code of the Republic of Kazakhstan
1. Persons participating in the case and having grounds to fear that the presentation of the evidence necessary for them will subsequently become impossible or difficult may request the court to secure this evidence.2. The provision of evidence by the court is carried out by questioning witnesses, appointing and conducting an expert examination, examining evidence in places where it is stored, sending a court order and by other means.3. The provision of evidence before the initiation of a case in court is carried out in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan on notaries.
This article and Articles 70, 71 of the CPC regulate the issues of providing evidence used in the event of a threat that any evidence will not be preserved for a court hearing, will change its properties or become inaccessible to the court.1. Securing evidence means measures aimed at preserving information about the circumstances of a case in cases where using the source of this information may prove difficult or impossible in the future. Timely provision of such evidence will allow the information obtained to be used as evidence in the future during the consideration of the case.The need to provide evidence arises, for example, when a witness leaves for a long business trip, moves to another locality or the state for permanent residence. If the signs or properties of an object having the value of physical evidence may disappear, then there is a need to inspect this evidence or appoint an expert examination. For example, in the case of invalidation of the contract of sale of a land plot, since it is flooded with water from the highway in the spring, the party asks to inspect the land plot and record the fact of flooding and the inability to carry out sowing work before the land dries out.Only the persons participating in the case listed in the first part of Article 43 of the CPC have the right to request the provision of evidence.The court provides evidence after the initiation of the case.
2. Part two of this article provides for ways to provide evidence by the court, which are aimed at securing information relevant to the case in the procedural forms provided for by the CPC. In this regard, the procedure for carrying out procedural actions to secure evidence corresponds to the established procedure for carrying out similar procedural actions in court proceedings, with the only difference being that in order to secure evidence, the necessary conditions are for the person involved in the case to file an appropriate application and the court to satisfy this application (Article 70 of the CPC).The provision of evidence is formalized by the protocol of a separate procedural action (part one of Article 281 of the CPC), since the subject of judicial activity in this case is a specific procedural action - the interrogation of a witness, the appointment of an expert examination, etc. (part two of Article 71 of the CPC), and not the hearing of the case on the merits, which is conducted at a court hearing (Article 184 of the CPC).The court provides evidence by questioning witnesses. The interrogation is conducted in accordance with the procedure established for questioning a witness at a court hearing (articles 203, 204, 206 of the CPC).The appointment of an expert examination to provide evidence is carried out by the court in accordance with the procedure provided for in Article 82 of the CPC.The inspection of evidence in the places of its storage is carried out in accordance with subparagraph 12) of Article 165 of the CPC in accordance with the procedure provided for in Articles 96, 97 of the CPC.The provision of evidence by sending a court order is carried out in accordance with the procedure provided for in Article 74 of the CPC.The provision of evidence may be carried out in other ways provided for by the norms of the CPC. For example, in accordance with subparagraph 11) of Article 165GPC, the court obliges the defendant to submit by the due date (before the court session) documents (internal audit materials, accounting statements, etc.), which (as the plaintiff fears) may be corrected (acts drawn up, missing signatures affixed), etc.
3. The need to provide evidence may arise before the initiation of a case in court, when the court is not authorized to take the measures provided for by the CPC to provide evidence. In this case, the interested person has the right to apply to a notary for evidence.The evidence is provided by a notary in accordance with subparagraph 19) of paragraph 1 of Article 34 of the Law "On Notaries", paragraphs 205-213 of the Rules for performing notarial acts by notaries, approved by Order of the Minister of Justice of the Republic of Kazakhstan dated January 31, 2012 No. 31. According to the specified legislation on the notary, a prerequisite for the legality of providing evidence by a notary is the performance of notarial actions before initiating a case in court, otherwise the security will not be valid. The exception is to provide evidence for submission to the authorities of a foreign State.The notary provides evidence by interviewing citizens, examining documents and objects, and drawing up an appropriate protocol (paragraphs 209, 211, 212 of these Rules).If, in violation of the requirements of part three of Article 69 of the CPC, evidence is provided by a notary after the initiation of a case in court (for example, in the case of concealment by an interested person of this fact from a notary, etc.), evidence provided by a notary, are recognized by the court as inadmissible as received in violation of the established procedure.
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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