Comments on article 90. Additional and repeated examination of the Civil Procedure Code of the Republic of Kazakhstan
1. An additional examination is appointed in case of insufficient clarity or completeness of the conclusion, as well as the need to resolve additional issues related to the previous study.2. The production of additional expertise may be entrusted to the same or another expert.3. A re-examination is appointed to examine the same objects and obtain answers to previously raised questions if the expert's conclusion is insufficiently substantiated or his conclusions are in doubt, or the procedure and methodology of the examination are significantly violated.4. The decision on the appointment of a re-examination should include the reasons for disagreement with the results of the previous examination.5. The commission of experts is entrusted with the re-examination. The experts who conducted the previous examination may be present during the re-examination and provide explanations to the commission, but they do not participate in the expert study and the preparation of the conclusion.6. When ordering additional and repeated examinations, the expert(s) must be provided with the conclusions of previous experts.7. If a second or subsequent examination is ordered for several reasons, some of which relate to additional examination, and others to repeated examination, such examination is carried out according to the rules of repeated examination.
1. The basis for the appointment of an additional examination is the lack of clarity or completeness of the conclusion, as well as the need to resolve additional issues related to the previous study.Insufficient clarity or completeness of the conclusion may be due to incorrect questions posed by the court to the expert, incomplete expert research, or methodological and procedural violations during the examination (see the commentary to part nine of Article 87 of the CPC). The appointment of this type of examination may be caused by objective reasons - the emergence of new additional questions related to the conducted research.
2. The production of an additional forensic examination may be entrusted to the same or another judicial expert. When ordering an additional expert examination, the conclusion of the previous forensic examination must be submitted to the forensic expert (paragraph 1 of Article 30 of the Law on SED).3. The reason for the appointment of a re-examination to examine the same objects and obtain answers to previously raised questions is the insufficient validity of the expert's conclusion, doubts about the expert's conclusions, or significant violations of the procedure and methodology of the examination.
Organizational issues of conducting repeated examinations are regulated by the Rules for Conducting repeated examinations in the forensic examination bodies of the Ministry of Justice of the Republic of Kazakhstan, approved by Order No. 163 of the Director of the Center for Forensic Examination of the Ministry of Justice of the Republic of Kazakhstan dated May 21, 2013.
4. In the ruling on the appointment of a re-examination, the court must indicate the reasons for disagreement with the results of the previous examination.For example, the expert's conclusion that the handwriting and signature in the disputed document were made by a certain person (the plaintiff or the defendant) contradicts the testimony of the witness about the circumstances of the disputed document, in which the handwriting and signature were made by another person. Since no evidence has a pre-established force for the court, none of these proofs enjoys an advantage over the other, in order to eliminate contradictions in the evidence, the court appoints a re-examination, indicating in the ruling that the expert's conclusions are questionable, as they contradict other evidence in the case.
The ruling on the appointment of a re-examination is not subject to appeal or protest.5. The court shall entrust the re-examination to a commission of experts, which should be indicated in the court ruling. Although the examination is carried out by a commission of experts, the procedural status of such an examination is defined as a repeated, rather than a commission examination.To ensure the objectivity of the conducted research and the results obtained, the law provides for the possibility of the presence of an expert (experts) who conducted the previous examination during the re-examination and providing them with explanations. In contrast to the additional examination, the expert(s) who conducted the previous examination cannot participate in the re-examination and drawing up an opinion.6. In the ruling on the appointment of an additional and repeated examination, the court must indicate that the expert(s) has been provided with the conclusions of previous experts, which, together with the definition and other objects of expert research, are sent by the court for additional and repeated examination.
7. Part seven of this article regulates the procedural status of the second or subsequent examination, which may simultaneously be additional and repeated. In this case, such an examination is considered repeated and is carried out according to the rules of repeated examination.
Additional comment
1. The initiator of the appointment of an additional examination may be the court or the parties. The decision on the appointment of such an expert examination is made by the court, which issues a reasoned ruling.Insufficient clarity of the conclusion may be expressed in the vagueness of the wording, their vagueness, and ambivalent interpretation. This disadvantage is usually eliminated by questioning an expert.The incompleteness of the expert opinion occurs when the expert left some of the questions raised without resolution, narrowed their scope, or did not examine all the objects presented to him, etc. The incompleteness, expressed in a narrowing of the scope of the assignment, is the basis for the appointment of an additional examination, since this does not call into question the conclusions of the expert regarding the issues resolved by him.Another reason for the appointment of an additional examination is the emergence of new questions regarding previously investigated circumstances, which is often caused by the expansion of the court's needs, the emergence of new facilities, or may be the result of an omission by the person who appointed the previous examination.
In addition to the information indicated in the definition on the appointment of an additional examination, the decision on the appointment of an additional examination should reflect the grounds for the appointment of an additional examination, who conducted the examination earlier and on what issues, what conclusions he came to, what circumstances remained unclear, what provisions require additional research and the formulation of expert conclusions on them. Additional questions that need to be answered by the expert in the report should also be indicated here.2. Additional expertise is usually assigned to the expert who conducted the initial examination. This is due to the fact that, on the one hand, the expert has already studied the submitted objects, which will have a positive impact on the timing of additional expertise, on the other hand, when conducting additional research, he will be able to fully benefit from the results of the previous conclusion.As an exception, additional expertise may be assigned to another expert if the expert who conducted the initial study is absent for valid reasons (vacation, business trip, etc.).
3. The reason for the appointment of a re-examination is the insufficient validity of the previous examination. The expert's conclusion may be considered unfounded if the methodology used by the expert is in doubt, the amount of research conducted is insufficient, and the expert's conclusions do not follow from or contradict the research resulthe reason for the appointment of a re-examination is the insufficient validity of the previous examination. The expert's conclusion may be considered unfounded if the methodology used by thrt is in doubt, the amount of research conducted is insufficient, and the expert's conclusions do not follow from or contradict the research results. The unreasonableness of the conclusion is determined by evaluating its internal structure and content.The expert's conclusions may be questionable if there was an incomplete study, namely: the expert did not take into account all the circumstances relevant to solving the questions posed to The unreasonableness of the conclusion is determined by evaluating its internal structure and content.The expert's conclusions may be questionable if there was an incomplete study, namely: the expert did not take into account all the circumstances relevant to solving the questions posed to him, which led to the formulation of a conclusion in a probable form, or to the refusal to resolve the issue (the answer is that it is impossible to resolve the issue). Another reason for doubting the experts' conclusions is their inconsistency with other case materials, accompanied by an active challenge of such conclusions by one of the parties. In this situation, the appointment of a re-examination is conditioned on obtaining an additional guarantee of the truth of the conclusions of the examination.The Law on SED, under the methodology of forensic expert research, implies a system of methods used in the study of objects of forensic examination to establish circumstances related to the subject of a certain kind, type of forensic examination (subparagraph 5) of Article 1). The method of forensic expert research is a system of logical and (or) instrumental operations (methods, techniques) used in the study of objects of forensic examination to establishThe method of forensic expert research is a system of logical and (or) instrumental operations (methods, techniques) used in the study of objects of forensic examination to establish circumstances related to the subject of forensic examination (subparagraph 6) of Article 1). Thus, in case of violation of the order and sequence of the applied methods prescribed in the methods of the research algor
4. The decision on the appointment of a re-examination should include the reasons that served as the basis for the appointment of this type of examination, namely: what exactly is the groundlessness of the expert's conclusions (for example, the inconsistency of the interim conclusions with the final ones) and what are the grounds for doubting their correctness (the expert has not conducted all types of research, there are no results in the conclusion the expert's conclusions contradict other evidence).
5. The re-examination is carried out by a commission of experts consisting of at least two experts. This is because the results of such examinations are usually particularly significant for the case under consideration, as they establish circumstances that can influence the decision made by the court. The production of repeated examinations is entrusted to experts with extensive work experience and experience in conducting such examinations.
6. The presence of previous expert opinions is a prerequisite for the appointment of additional and repeated examinations. First of all, this is necessary to determine the correctness of the appointed examination, since often the person appointing the examination incorrectly indicates the procedural status of the forensic examination in the definition (for example, if a technical examination of the document has already been conducted in relation to the document form, then the examination of the seal impression on this form - this is an independent examination of another object, not an additional one).The presence of a previous expert opinion during the preparation of an additional examination after reviewing it will allow the expert to draw up an optimal work plan, which will take into account and use all the results of the initial study, which will significantly reduce the time required for the examination. When drawing up the results of an additional examination, the expert has the right to refer to the relevant sections of the previous study.During the re-examination, the expert commission must examine the same objects and repeat all the stages of the expert study conducted and described in the previous examination (provided that the expert followed the research methodology).When conducting a re-examination, the expert Commission does not evaluate the results of the previous examination, as this is not within its competence. The results of the re-examination, as well as the initial one, are evaluated primarily by the court that appointed the re-examination, which are evaluated according to the rules for evaluating evidence. In giving preference to one of the conclusions, the court evaluating these conclusions must indicate the grounds and motives for accepting one conclusion and rejecting the other.7. It should be noted that this article does not specify the procedure for processing the results of a re-examination in case of disagreement between experts (by analogy with a commission examination).
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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