Comments on article 79. Explanations of the persons involved in the case of the Civil Procedure Code of the Republic of Kazakhstan

1. Explanations of persons participating in the case about circumstances known to them that are relevant to the case are subject to verification and evaluation along with other evidence collected in the case. The explanations of these persons may be oral or written.

2. The recognition by a party of the facts on which the other party bases its claims or objections relieves the latter of the need to further prove these facts. The party's recognition of the fact is recorded in the minutes of the court session. If the admission of the fact is stated in a written statement, it is attached to the case.

3. The court does not accept a confession of facts if there is doubt that it was committed in order to conceal the actual circumstances of the case or under the influence of deception, violence, threat or delusion, as indicated in the court decision. In this case, these facts are subject to proof on general grounds. This article begins the legal regulation of the means of proof, the subjects of proof and their procedural rights and obligations, and the content of evidence.

1. The persons participating in the case shall inform the court of the circumstances known to them that are relevant to the case. These messages are given in the form of explanations.Explanations of the persons involved in the case may contain not only evidence, but also other information. Thus, these persons may inform the court about matters relevant to the case.:- the circumstances included in the claim (for example, the commission of actions to transfer property, payment of money, non-fulfillment of obligations by the defendant, etc.), and- factual evidence (for example, the existence of a written contract, salary certificate, the presence of a witness at the conclusion of the contract, etc.).

The rest of the explanations - motives, arguments, considerations - do not serve as evidence. An indication of the circumstances on which the plaintiff bases his claims, and arguments on the merits of the stated claims, as well as their proof, is mandatory for the parties (subparagraph 5) of the first part of Article 148, subparagraph 3) of the fourth part of Article 166 of the CPC, part one of Article 72 of the CPC), third parties making independent claims on the subject of the dispute (first and second parts of Article 51 of the CPC), third parties who do not make independent claims on the subject of the dispute (first part of Article 52 of the CPC), the prosecutor (sixth and seventh parts of Article 54 of the CPC), state bodies, local governments, legal entities or citizens who enter into proceedings on the grounds provided for in Article 55 of the CPC, applicants and other interested persons in cases considered in the order of special claims and special proceedings (part one of Article 43 of the CPC). Explanations are also provided by representatives of the persons participating in the case, although representatives are not listed in the composition of the persons participating in the case (part one of Article 43, part one of Article 202 of the CPC).The explanations of the mentioned persons participating in the case about the circumstances of the case are evidence and are subject to assessment on general grounds along with other evidence (part two of Article 63, Article 68 of the CPC).Explanations of the persons involved in the case may be oral or written. Oral explanations are recorded in the minutes of the court session (subparagraph 9) of the second part of Article 282 of the CPC) or recorded using audio or video recording (part three of Article 282 of the CPC). Oral explanations can also be obtained by means of video conferencing (part four of Article 202 of the CPC).Written explanations of persons participating in the case who did not appear at the court session for valid reasons are generally subject to investigation (part two of Article 202 of the CPC).Written explanations may also be submitted by the persons participating in the case who appeared at the court session, by virtue of the direct instruction of the law on the procedural right to give written explanations (part one of Article 46 of the CPC).Written explanations of the persons involved in the case may be expressed in a statement of claim, a response to the claim., and also in the actual written explanation of the case.

2. Part two of this article regulates the recognition of facts by a party, which is a type of explanation by a party confirming the existence of a fact that the other party was obliged to prove. The party's recognition of the facts is important for determining the subject of proof, from which the recognized fact will be excluded when the court accepts the confession. The court's decision sets out these facts as indisputable factual circumstances without providing evidence to support them, as they are established by the explanation of one party and the confession of the other party. The plaintiff and the defendant, as well as a third party making independent claims on the subject of the dispute, may admit the fact in relation to the facts put forward against his claim. A party may declare recognition of a legal or evidentiary fact (see: commentary to the first part of Article 63 of the CPC) or several such facts. It follows from the meaning of the article that facts relevant to the case are subject to recognition. Recognition of a claim means that the defendant recognizes all the legal facts on which the claim is based, while the defendant has not stated his facts that differ from the facts stated by the plaintiff. Recognizing the facts frees the other party from the need to prove the recognized facts. This legal consequence occurs only with judicial recognition, that is, a recognition made by a party before the court during the preparation of the case or trial, as a result of which it does not need to be confirmed by additional documents. The party's recognition of the fact outside the process (extrajudicial recognition) is a circumstance that must be established by the court. The recognition of the fact can be made in two ways: oral and written. The oral recognition of the fact by the party is recorded in the minutes of the court session (subparagraph 9) of the second part of Article 282 of the CPC) or recorded using audio or video recording (part three of Article 282 of the CPC).The party's recognition of the fact may be stated in a written statement. A written admission of the fact must be stated during the preparation of the case, if the court does not keep a record and the explanations of the parties are not recorded (for example, when interviewing the plaintiff in accordance with subparagraph 15) of Article 165 of the CPC).A written statement on the recognition of the facts by the party is attached to the case.

3. The failure of the court to recognize the facts provided for in part three of this article is similar to the cases of inadmissibility of evidence (subparagraphs 1), 2) of part one of Article 66 of the CPC), since in this case the recognition of the fact is made by the party as a result of illegal actions against the party, illegal influence on the will and expression of the will of the party, as well as in violation of the principles of dispositivity and adversarial (Article 8, part two of Article 15 of the CPC).Doubts about the need to accept a party's recognition of the facts may arise in the following cases:, if the recognition of the facts contradicts the previously given explanations of the party or other evidence, or the party, after recognizing the facts, cannot provide explanations on the recognized fact, answer questions from the court or other persons involved in the case, etc. The court may find out the existence or absence of circumstances preventing the acceptance of the recognition of facts by asking the relevant questions to the party acknowledging the facts.If the party does not accept the recognition of the facts, the court announces the ruling on the non-acceptance of the recognition at the court session, continues the trial in the usual manner, and the facts indicated in the recognition are subject to proof on general grounds.The non-acceptance of the facts by the party is indicated in the court decision, indicating the reasons for the non-acceptance of such recognition.

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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