Comments on article 72. The duty of proof of the Civil Procedure Code of the Republic of Kazakhstan

Each party must prove the circumstances to which it refers as the grounds for its claims and objections, use remedies, assert, challenge facts, provide evidence and objections to evidence within the time limits set by the judge, which correspond to the fair conduct of the process and are aimed at facilitating the proceedings.

2. The burden of proof in cases specified in Chapter 29 of this Code shall be placed on state authorities, local governments, public associations, organizations, officials and civil servants whose acts, actions (inaction) are being appealed. This article establishes general rules for the distribution of the burden of proof in cases, and also emphasizes that evidence must be carried out in a timely and conscientious manner.

1. By virtue of the adversarial principle (Article 15 of the CPC), the burden of proof is placed on the parties.

1.1. The plaintiff must prove the circumstances that constitute the basis of the claim.: facts related to the emergence, modification, or termination of a disputed legal relationship, and facts indicating a violation or challenge by the defendant of the plaintiff's right. The defendant must prove the facts supporting his objections to the claim. The general rule on the distribution of the burden of proof is adjusted by the norms of substantive law with the help of evidentiary presumptions, by virtue of which a person participating in a case, referring to some presumed fact, should not prove it, and other persons have the right to refute it. Thus, the court most often applies the following types of presumption: the presumption of guilt of the violator (paragraph 6 of Article 9 of the Civil Code); the presumption of good faith in the exercise of civil rights (paragraph 4 of Article 8 of the Civil Code), the presumption of paternity (paragraph 2 of Article 47, Article 51 of the Civil Code), the presumption of death of a long-absent citizen (Article 31 of the Civil Code), etc. In the form of refutable presumptions, circumstances have been established that are grounds for exemption from evidence (part seven of Article 76 of the CPC).The specifics of the burden of proof in cases of protection of honor, dignity and business reputation are established by Article 143 of the Civil Code, paragraph 8 of the normative resolution of the Supreme Court No. 6 of December 18, 1992 "On the application in judicial practice of legislation on the protection of honor, dignity and business reputation of individuals and legal entities."The general rule on placing the burden of proof on the parties also applies to other persons involved in the case. A third party making independent claims on the subject of the dispute, enjoying the rights and fulfilling the duties of the plaintiff, must prove the circumstances by which he justifies his claims. A third party who does not make independent claims on the subject of the dispute proves the facts affecting his relationship with the party in the process. The prosecutor, state and local government bodies, legal entities or citizens who apply to the court in accordance with Articles 54, 55 of the CPC must prove the circumstances underlying the claim.

1.2. The Law stipulates that the parties must use protective equipment. In the claim proceedings, the plaintiff defends his rights by filing a claim (Article 148 of the CPC), which he has the right to dispose of in accordance with the first part of Article 48 of the CPC. The defendant's means of defense against the claim are objections (including those set out in the response to the statement of claim under Article 166 of the CPC) and a counterclaim (Article 153 of the CPC). The defendant has the right to admit the claim (part one of Article 48 of the CPC). The parties may end the case with a settlement agreement or an agreement on the settlement of a dispute (conflict) through mediation, or an agreement on the settlement of a dispute through a participatory procedure (Part one of Article 48 of the CPC).The rule on the use of appropriate remedies is also applicable to other types of proceedings in court with the specifics established by the norms of the CPC.In writ proceedings, the recoverer's rights are protected by filing an application for a court order (Articles 134, 136 of the CPC), and the debtor's - by filing an objection to the stated claim (Article 141 of the CPC).In cases of special claim proceedings and special proceedings, the rights of the person concerned are protected by filing an appropriate application.

1.3. In the process of proving, the parties must assert and dispute the facts, provide evidence to confirm their facts and refute the facts stated by the other party. This provision is new and emphasizes the procedural obligation of the parties as subjects of evidence to deal with issues of fact, in contrast to the court, which resolves issues of law.This procedural obligation of the parties is specified and/or specified in other norms of the CPC and regulatory rulings of the Supreme Court.Thus, the persons participating in the case are 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). The plaintiff is obliged to indicate in the statement of claim the circumstances on which he bases his claims, as well as the content of evidence confirming these circumstances (subparagraph 5) of the second part of Article 148 of the CPC). In the response, the defendant indicates the arguments on the merits of the stated claims with reference to the evidence substantiating them (subparagraph 3) of part four of Article 166 of the CPC). When preparing a case for trial, the judge suggests providing explanations on the circumstances that are mutually disputed by the parties (subparagraph 3) of Article 165 of the CPC). According to paragraph 16 of the normative resolution of the Supreme Court No. 5 of July 11, 2003 "On Judicial Decision", the basis of the claim should be understood as the facts indicated by the interested person, entailing the emergence, modification or termination of the material legal relationship that is the subject of the claim. According to paragraph 11 of the normative resolution of the Supreme Court No. 21 of December 13, 2001 "On the preparation of civil cases for trial", when interviewing the parties on the merits of the dispute, the judge clarifies the circumstances, the presence of additional evidence to substantiate or refute the stated claims, clarifies the right to file a petition for assistance in obtaining evidence.The law does not oblige the parties to indicate the rules of law in support of their claims and objections. The exception is the prosecutor's obligation to indicate in the statement of claim the law to be applied (part three of Article 148 of the CPC). At the same time, the parties have the right to specify which rule of law should be applied to the disputed legal relationship, and how the rule of law should be interpreted (legal opinion).

1.4. The parties must perform the specified actions within the time limits set by the judge. The judge sets a deadline for the defendant to submit:- withdrawal (objection) to the statement of claim when considering the case in a simplified (written) procedure (part three of Article 146 of the CPC);

- a written response to the claims made by the plaintiff (subparagraph 1) of Article 165 of the CPC);- a written response to the statement of claim if the defendant has not submitted it by the deadline set earlier or has not submitted a response on all the requirements and grounds of the statement of claim (part five of Article 172 of the CPC), etc. From the meaning of subparagraph 2) of Article 165 of the CPC on the actions of a judge in preparing a case for trial, it follows that the judge may set a deadline for the plaintiff to submit copies of documents attached to the statement of claim. Failure to comply with the deadlines set by the judge may have negative consequences for the violator. Thus, from the meaning of the fourth part of Article 146 of the CPC, it follows that the withdrawal (objections), evidence and other documents received by the court after the expiration of the time limit set by the court and without substantiating the impossibility of submitting them within the time limit, are not accepted by the court, and the case is considered without taking into account the specified documents of the defendant. In addition, the court may consider the case and make a decision after the expiration of the time limits set by the court, but before receiving a response (objection), evidence and other documents from the defendant (parts four and five of Article 146 of the CPC).The parties must also take actions to protect their rights within the time limits established by law. Such deadlines, for example, are set for the performance of administrative actions by the parties and other persons involved in the case (Articles 169, 170, 171 of the CPC), the presentation of evidence (Article 73 of the CPC), etc. Failure to comply with the time limits established by law for the performance of procedural actions may also entail negative consequences for the persons involved in the case, for example, the restriction of certain additional conditions on the right to present evidence at the trial stage to the court of first instance or the court of appeal (part one of Article 73 of the CPC).1.5. The actions of the parties to protect their rights, including evidence, must be consistent with the fair conduct of the process and be aimed at facilitating the proceedings. This rule complies with the requirements of the first part of Article 46 of the CPC that the persons involved in the case must conscientiously exercise all their procedural rights, without abusing the rights of others, without violating their interests, and not to intentionally delay the consideration and resolution of the case.

2. A special rule on the distribution of the burden of proof is established for the category of cases of special claim proceedings, the procedure for consideration of which is provided for in Chapter 29 of the CPC. The burden of proof in cases specified in Chapter 29 of the CPC is placed on state authorities, local governments, public associations, organizations, officials and civil servants whose acts, actions (inaction) are being appealed. From the meaning of the second part of Article 227 of the CPC, it follows that the persons indicated in the second part of the commented article must prove that the contested action (inaction) was committed, the decision was made in accordance with the competence and legislation of the Republic of Kazakhstan.

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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