Comments to article 109. Distribution of court costs between the parties to the Civil Procedure Code of the Republic of Kazakhstan

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1. The court awards to the party in whose favor the decision was made, on the other hand, all court costs incurred in the case. If the claim is partially satisfied, the costs are awarded to the plaintiff in proportion to the amount of the claims satisfied by the court, and to the defendant in proportion to the part of the claims denied to the plaintiff.

2. If a dispute has arisen as a result of a violation by a person participating in the case of a claim or other pre-trial dispute settlement procedure provided for by law or contract, including a violation of the deadline for submitting a response to a claim or leaving a claim unanswered, the court shall charge this person with court costs regardless of the results of the case. The court has the right to attribute all court costs in the case to a person who abuses procedural rights or fails to perform procedural duties, including in the case of presenting evidence in violation of the time limit set by the court and the procedure for presenting evidence established by this Code without valid reasons, if this has led to a delay in the trial, hindering the consideration of the case and the adoption of a lawful and reasonable judicial decision. the act.

3. If the courts of appeal or cassation instances change the decision that has taken place or make a new decision without referring the case for a new hearing, they will accordingly change the distribution of court costs when the party submits evidence of the costs incurred to the relevant courts.

4. The court of first instance, at the request of the party, issues a ruling on the recovery of court costs incurred during the consideration of the case in the courts of appeal and cassation instances, if the petition was discussed during the consideration of the case in the courts, but the court costs were not recovered due to the need to verify the authenticity of the submitted documents and this is indicated in the court decision of the relevant judicial instances.

5. An application for recovery of court costs is subject to consideration by the court at a court hearing with notification of the parties. The failure of the parties, duly notified of the time and place of the court session, is not an obstacle to the consideration of the application. The application may be filed within one month from the date of entry into force of the last judicial act, the adoption of which ended the consideration of the case on the merits.

6. A copy of the judicial act shall be sent by the court to the tax authority at the place of registration (of the citizen) or location (of the legal entity) of the judicial representative no later than five working days from the date of entry into force, the costs of paying for the services of which are compensated by the court.

1. The distribution of court costs is carried out in accordance with the provisions of Article 109 of the CPC and the regulatory decree of the Supreme Court No. 9 dated December 25, 2006 "On the application by courts of legislation on court costs in civil cases". The commented article establishes the distribution of court costs between the parties, which are the plaintiff and the defendant in accordance with Article 47 of the CPC. At the same time, it should be borne in mind that the provisions of Article 109 of the CPC also apply to third parties who make independent claims on the subject of the dispute, since according to Article 51 of the CPC they enjoy all the rights of the plaintiff and bear all his duties.In accordance with part six of Article 226 of the CPC and paragraph 17 of the Supreme Court's regulatory decree No. 5 of July 11, 2003 "On Judicial Decision", the operative part of the court's decision must contain an indication of the distribution of court costs, which means that this issue must be resolved at the same court session., when the case was considered and the decision was made. An exception may be the cases specified in part four of this article, when the requirements are considered according to the rules established in part five of this article (see commentary on these rules).Since Article 21 of the CPC stipulates that the court adopts judicial acts in civil cases in the form of decisions, rulings, resolutions and orders, and Article 534 of the Tax Code provides a list of requirements and actions for which state duty is charged, the procedural duty of a judge is to decide in each judicial act, including the courts of appeal, cassation instances (part three of Article 109 of the CPC) of the following issues:- on the distribution of court costs between the parties;- on reimbursement of court costs to the parties in cases of filing a claim in court for the protection of the rights, freedoms and legally protected interests of other persons and the State;- reimbursement of court costs to a law firm or a lawyer working under a contract in cases of providing legal assistance free of charge;- reimbursement of court costs to the State in cases in which the plaintiff or the plaintiff and the defendant were simultaneously exempted from paying them when applying to the court.

2. Despite the fact that the second part of the commented article establishes a general rule on awarding, on the other hand, all court costs incurred in the case to the party in whose favor the decision was made, a literal interpretation allows us to conclude that this norm contains another rule. In accordance with this rule, if a dispute has arisen as a result of a violation by a person participating in the case of a claim or other pre-trial dispute settlement procedure provided for by law or contract, including violation of the deadline for submitting a response to a claim, leaving a claim unanswered, the court shall charge this person with court costs regardless of the results of the case.

The court has been granted the right to attribute all court costs in the case to a person who abuses procedural rights or fails to perform procedural duties, including in the case of presenting evidence in violation of the time limit set by the court and the procedure established by the CPC for presenting evidence without valid reasons. These are cases where this has led to a delay in the judicial process, hindering the consideration of the case and the adoption of a lawful and reasonable judicial act. This rule is special for the above cases of a dispute arising as a result of a violation by a person participating in the case of a claim or other pre-trial settlement procedure provided for by law or contract. Questions about court costs are resolved at the same court session when the case is being considered.

4. Within the meaning of the commented article, granting the court of first instance the right to resolve the issue of recovery of court costs incurred during the consideration of the case in the courts of appeal and cassation instances should not be regarded as a procedural omission of the latter (part four of Article 109 of the CPC).This follows from the literal interpretation of the commented article. The court of first instance has the right to issue a ruling on the recovery of court costs incurred during the consideration of the case in the courts of appeal and cassation instances, if the petition was discussed during the consideration of the case in these courts, but the court costs were not collected due to the need to verify the authenticity of the submitted documents and this is indicated in the decision of the court of the relevant judicial instance.

5. An application for recovery of court costs on the grounds specified in part four of this article shall be subject to consideration by the court at a court hearing with notification of the parties. The failure of the parties, duly notified of the time and place of the court session, is not an obstacle to the consideration of the application. The application may be filed within one month from the date of entry into force of the last judicial act (meaning judicial acts of the courts of appeal and cassation instances), the adoption of which ended the consideration of the case on the merits.

6. A copy of the judicial act shall be sent by the court to the tax authority at the place of registration (of the citizen) or location (of the legal entity), the judicial representative, no later than five working days from the date of entry into force, the costs of paying for the services of which are compensated by the court. Such actions of the court are aimed at upholding the rule of law in the provision of representative services and the suppression of illegal business activities.

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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