Comments on article 77. Involvement of a specialist in the procedural actions of the Civil Procedure Code of the Republic of Kazakhstan

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1. An adult with special knowledge who is not interested in the outcome of the case may be engaged by the court as a specialist to participate in a court hearing or procedural actions in order to assist in the collection, investigation and evaluation of evidence by providing advice (explanations) and assistance in the use of scientific and technical means.The court has the right to involve specialists at the request of the party. The persons involved in the case may ask the court to involve a specific person with special knowledge as a specialist.

2. The appointment of a specialist during the court session is indicated in the ruling on the preparation of the case for trial, and during the court session - in the minutes of the court session.

3. A person called as a specialist has the right to: know the purpose of his call; refuse to participate in the proceedings if he does not have the appropriate special knowledge and skills; with the permission of the court, ask questions to the participants in the procedural action; draw the attention of the participants in the procedural action to the circumstances related to his actions in assisting in the collection, research and evaluation of evidence, in the application of scientific and technical means, preparation of materials for the appointment of expertise; to get acquainted with the protocol of the procedural action in which he participated, as well as, in the relevant part, with the minutes of the court session, and to make statements and observations to be recorded in the protocol regarding the completeness and correctness of recording the course and results of actions performed with his participation; to receive reimbursement of expenses incurred by him in connection with participation in the proceedings, and remuneration for the work performed, if participation in the proceedings is not included in the scope of his official duties.

4. A person appointed by a specialist is obliged to: appear at the summons of the court; participate in the production of procedural actions and in court proceedings, using special knowledge, skills and scientific and technical means; provide advice; provide explanations about the actions performed by him. The expert's opinion on all issues raised must be submitted to the court in writing.

5. When conducting procedural actions to determine the opinion of a minor child on the subject of a dispute who has reached the age of ten, the participation of a teacher and (or) a psychologist is mandatory.

6. The teacher and (or) psychologist have the right to get acquainted with the materials of a civil case characterizing the personality of a minor before the start of his interview, with the permission of the presiding judge, to ask questions to the minor to clarify his opinion on the subject of the dispute, and after the end of the procedural action to get acquainted with the minutes of the court session in the part reflecting his participation in the court session.

7. A child over the age of ten is interviewed with the participation of a teacher and (or) a psychologist. At the time of the child's questioning, his legal representatives may be removed from the courtroom by a court ruling. After the legal representatives return to the meeting room, they should be informed of the content of the child's opinion and given the opportunity to ask him questions. After clarifying his opinion on the subject of the dispute, the child is removed from the courtroom.

8. When considering investment disputes, the court has the right to request the opinion of experts from the International Council at the Supreme Court of the Republic of Kazakhstan.1. A specialist is a person who has the necessary special knowledge in the relevant field of activity and is able to assist the court in the application of scientific and technical means, in collecting evidence, in examining written and physical evidence, in giving consultations, in obtaining samples (samples)__________________37 Commentary to the Civil Procedure Code of the Republic of Kazakhstan//Library of the Supreme Court of the Republic of Kazakhstan. - Astana, 2008. p. 392.

A specialist can only be a person who is not interested in the outcome of the case. Interest in the outcome of the case is the basis for the recusal of a specialist in accordance with subparagraph 3) of the first part of Article 38, part one of Article 39 of the CPC.The court must find out whether a specialist has special knowledge, and also require confirmation of this fact in case of doubts about the competence of a specialist or at the request of a person involved in the case.Unlike an expert, a specialist is not a source of evidence, but only assists the court in the proving process. For example, a court engages an accountant as a specialist to participate in the assessment of an employee's salary for working overtime and at night by advising on the rules for making such a calculation.A specialist is involved to participate in a court hearing or a procedural action performed by the court. If the court is presented with a written opinion of a competent person on an action performed by him outside of the procedural action, such an opinion may be accepted as written evidence, and not as expert advice (for example, the court is presented with a written opinion received by the party independently, the conclusion of a teacher of the Department of Philology regarding the content of the publication).The specialist is involved on the initiative of the court or at the request of the party. The persons participating in the case have the right to ask the court to involve a specific person as a specialist. Objections of other persons to the candidacy of a particular person must be motivated.

2. The judge shall issue a ruling on the appointment of a specialist in the preparation of a case, except in cases when this issue is resolved in a preliminary court session, on which the minutes of the court session are kept. The appointment of a specialist at the court session is indicated in the minutes of the court session.A summons is sent to the appropriate organization or person to appoint a specialist, indicating the time and place of the court session or procedural action.

3. Part three of this article provides for the procedural rights of a specialist. According to Article 200 of the CPC, the specialist is explained his procedural rights and the obligation to assist the court in carrying out the necessary procedural actions.The incompetence of a specialist is the basis for the recusal (self-recusal) of a specialist in accordance with paragraph 3) of the second part of Article 39 of the CPC.The specialist, with the permission of the court, has the right to ask questions to the participants in the procedural action related to the performance of his procedural duties. The specialist has the right to draw the attention of the participants in the procedural action to the circumstances related to the actions performed by him.

The right of a specialist to get acquainted with the protocol of a procedural action, the protocol of a court session and to make statements and observations is aimed at ensuring the completeness and correctness of recording the actions performed with his participation, which may affect the assessment of evidence as a whole.The amounts and procedure for reimbursing the specialist for expenses and remuneration for the work performed are regulated by Articles 110, 111 of the CPC.

4. Part four of this article establishes the procedural duties of a specialist. The person appointed by the specialist is obliged to appear at the summons of the court. The consequences of a specialist's failure to appear at a court hearing are provided for in Article 197 of the CPC.The specialist is obliged to participate in the procedural action or judicial proceedings, to provide advice and explanations if the issue under consideration falls within his competence and there are no grounds for recusal (self-recusal).The expert's opinion on all issues raised is submitted to the court in writing.

5. Parts five, six, and seven of this article provide for cases of mandatory participation of a specialist. The participation of a teacher and (or psychologist) in the conduct of procedural actions to determine the opinion of a minor child who has reached the age of ten on the subject of the dispute is mandatory. Cases of mandatory determination of the opinion of a minor child are established by the norms of the KBS: on the right of a child to express his opinion (Article 62), on the rights and obligations of parents to raise and educate a child (Article 70), on the exercise of parental rights by a parent living separately from the child (Article 73), etc.

6. Part six of this article specifies the rights of a teacher and (or) a psychologist to perform the procedural function of a specialist: to get acquainted with the case materials characterizing the personality of a minor before the start of his interview, to ask questions to the minor, to get acquainted with the minutes of the court session in the relevant part.

7. Part seven of this article provides for the specifics of conducting a survey of a child over the age of ten. Such a survey is conducted with the participation of a teacher and (or) a psychologist. Before starting the interview, the court finds out the possibility of the presence of legal representatives in the courtroom.During the interview, the child's legal representatives may be removed from the courtroom. The reason for the removal of legal representatives may be the opinion of a specialist on the need to exclude any influence on the child from the legal representatives present; the request of the child; inappropriate behavior of a party trying to put pressure on a child, etc. The court determines the need to remove legal representatives on the spot, which is recorded in the minutes of the court session.The specialist assists the court in interviewing the child, including formulating the court's questions in an understandable and accessible form, clarifying the child's opinion and bringing it to the attention of the court.After the end of the child's interview, his legal representatives return to the courtroom. The court informs them of the content of the child's opinion. The court provides the child's legal representatives with the opportunity to ask him questions, which, if necessary, can also be adjusted by a specialist. After the end of the interview, the court removes the child from the courtroom.

8. Part eight of this article provides for the court's right to request the opinion of experts from the International Council at the Supreme Court when considering investment disputes. By virtue of article 296 of the Investment Code, an investment dispute is a dispute not only between foreign investors and government agencies, but also between national investors and government agencies. Such an opinion may be requested not only by judges of the specialized judicial board of the Supreme Court when considering cases involving large investors who have invested more than two million times the MCI, but also by the Astana City Court when considering investment disputes.

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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