Comments to article 113. Reimbursement of expenses for the assistance of a representative of the Civil Procedure Code of the Republic of Kazakhstan

1. At the request of the party in whose favor the decision was made, the court awards, on the other hand, the costs incurred by it to pay for the assistance of a representative (several representatives) who participated in the process and is not in an employment relationship with this party, in the amount of the costs actually incurred by the party. For property claims, the total amount of these expenses should not exceed ten percent of the satisfied portion of the claim. According to non-property requirements, the amount of expenses is collected within reasonable limits, but should not exceed three hundred monthly calculation indices.

2. In the event of a court ruling in favor of a party to whom qualified legal assistance has been provided by a lawyer at the expense of budgetary funds in accordance with the procedure and on the grounds established by law, the said expenses shall be collected from the other party to the state budget.

1. It follows from the meaning of the first part of the commented Article 113 of the CPC that the expenses actually incurred are reimbursed for the participation of a representative in the civil process. However, for property claims - no more than 10% of the amount recovered by a court decision, and for non-property claims, the amount of expenses is collected within reasonable limits, but should not exceed three hundred monthly calculation indices. The amount of the monthly calculation index is determined on the day of the decision. The provisions of this rule apply not only to judicial acts of the first instance issued in the form of decisions. Article 21 of the CPC stipulates that the court of first instance adopts judicial acts in civil cases in the form of court orders, decisions, rulings, and rulings, and the courts of appeal and cassation adopt judicial acts in the form of rulings and rulings. An analysis of the provisions of individual articles of the CPC and the Tax Code, taking into account the above, indicates that Article 113 of the CPC also applies to cases where a different judicial act is issued in civil proceedings.By part eight of Article 108 of the CPC, the costs of paying for the assistance of representatives are attributed to the costs associated with the civil proceedings. Reimbursement of the actual court costs incurred is possible:

- in writ proceedings under the rules of Chapter 12 of the CPC, when the protection of the rights and interests of creditors on indisputable claims without summoning the debtor and the recoverer is carried out in court proceedings in a simplified procedural form, but ends with the issuance of a court order, not a decision. A state duty is charged on an application for a court order (Article 137 of the CPC, Article 534 of the Tax Code);- in the stages of preparing the case for trial according to the rules of Chapter 16 of the CPC (Article 168) and conciliation procedures according to the rules of Chapter 17 of the CPC (Article 177), for example, in the event of termination of proceedings, leaving the application without consideration by court ruling with a decision on the distribution of court costs;- in the courts of appeal, cassation instances by court order. Similar rules apply in the case of reimbursement of expenses in favor of legal advice, the office that allocated the lawyer, or in favor of a lawyer working under a contract, as provided for in part two of the commented article. The expenses incurred by the party to the case to pay for the assistance of a representative must be documented. The actual expenses incurred for non-property claims are subject to recovery in accordance with part five of Article 6 of the CPC, as well as part four of Article 8 of the Civil Code, CPC, based on the criteria of reasonableness. The reasonableness of the limits of expenses for paying for the services of a representative is determined by the court, which should not exceed three hundred monthly calculation indices. Representation expenses are actually incurred in connection with the consideration of a specific civil case. Accordingly, they are subject to award based on the results of consideration of the case in favor of the winning party. This follows from the provision of the sixth part of Article 226 of the CPC, that the operative part of the decision should contain both the court's conclusion on the satisfaction of the claim or the rejection of the claim in whole or in part, and an indication of the distribution. In fact, the distribution of court costs based on the results of the consideration of this case is the procedural responsibility of the court.

The legislator, considering the failure to comply with this requirement of the law as the incompleteness of the court decision, fixed in subparagraph 3) of the first part of Article 236 of the CPC the provision according to which the incompleteness in the decision is subject to elimination by the same court at the request of the persons participating in the case, or on his own initiative before the entry into force of the main decision by adopting an additional decision.. The court may not, under the guise of making an additional decision, change the content of the decision or resolve new issues that were not investigated at the court session. The Normative Decision of the Supreme Court of July 11, 2003 No. 5 "On judicial Decision" (paragraph 32) clarifies that an additional decision may be rendered by the court only on the basis of factual circumstances that were established during the proceedings within the time limit established by law for the execution of the decision. If an appeal is filed against a court decision or a protest is filed and at the same time the issue of making an additional decision is raised, the court must first resolve the issue of making an additional decision, and then send the case to the court of appeal for consideration. In case of execution of a court decision, such a judicial act may be reviewed.

At the same time, the commented article 113 of the CPC establishes a provision on awarding the costs incurred by the party to pay for the assistance of a representative on the basis of a party's request. The court is relieved of the procedural obligation to resolve the issue of the distribution of court costs in the absence of a motion from the party to the case. The claim for recovery of court costs that are spent on conducting a civil case is subject to attribution to the guilty party based on the results of the case review and should not be subject to state duty.

2. In the case of providing legal assistance to citizens free of charge, reimbursement of expenses is made according to the rules set out in the commentary to Article 113 of the CPC.

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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