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Comments to Article 133. Unknown place of residence of the defendant (or) the child and their search of the Civil Procedure Code of the Republic of Kazakhstan
1. If the defendant's actual place of residence is unknown, the court shall proceed to consider the case upon receipt by the court of a subpoena or other notice, summons with an inscription certifying their receipt by an authorized person of the cooperative of owners of premises (apartments), the housing maintenance and communal services service or the manager of an apartment building, an authorized person of a local government body or the relevant executive body by the addressee's last known place of residence or the administration's last known place of work. Such notification is appropriate.If the place of residence of the defendant and (or) the child is unknown, upon request for the return of a child illegally transferred to the Republic of Kazakhstan or held in the Republic of Kazakhstan or for the exercise of access rights to such a child on the basis of an international treaty ratified by the Republic of Kazakhstan, the judge is obliged to issue a ruling on the search for the defendant and (or) the child.2. If the defendant's place of residence is unknown for claims brought in the interests of the state, as well as for the recovery of alimony, compensation for damage caused by injury to health or death of the breadwinner, the court is obliged to declare a search for the defendant through authorized bodies. The court's announcement of the defendant's wanted list is not an obstacle to the consideration of the case.
3. After handing over to him a copy of the court decision, the defendant has the right to file a petition for the restoration of the missed procedural time limit for filing an appeal in accordance with the procedure established by Article 126 of this Code and to appeal the court decision.4. Recovery of expenses related to the search for the defendant and (or) the child is carried out at the request of the authorized body by issuing a court order.1. If the defendant's place of residence is unknown, the CPC provides for the following measures:- informing the defendant at the last known place of residence, and in the case when the person does not actually reside at the address provided to the court, a notice or summons may be sent to his place of work (part four of Article 127 of the CPC);- consideration of the case only after the court receives information about the unknown location of the defendant from the last known place of residence, in accordance with the commented article. A prerequisite for the consideration of the case is the receipt of a summons to the court with a note stating that the specified addressee does not live at this address. The mark must be certified by the housing maintenance organization, the local government body or the relevant executive body at the last place of residence. Since Article 129 of the CPC provides for sending a summons or other notification by mail, the return of a registered mail (hybrid) shipment by a mail operator with a note on the reasons for such a return may also be recognized as a proper notification.
The court may ask the plaintiff to provide evidence that the defendant previously lived at this address (an address certificate from the PSC, an extract from the house book, a personal account, witness statements, questionnaires from work, etc.). The commented article does not grant the court the right to consider the case in the absence of the defendant in absentia according to the rules of Chapter 21 of the CPC. The case may be considered in absentia if the defendant fails to appear at the court session, has been notified of the time and place of the court session, has not informed about the valid reasons for his non-appearance and has not requested to consider the case in his absence. For the purposes of this article, the defendant may not be considered notified of the court hearing.
2. In the event that the location of the defendant is unknown, the court is obliged to declare a search for the defendant through authorized bodies (internal affairs bodies, anti-corruption service, economic investigation service) in accordance with the law.In judicial practice, it is difficult to determine the defendant's intent to delay the process. Sometimes the courts repeatedly postpone the trial due to the absence of the defendant for reasons considered valid, and then, if there are the same reasons for non-appearance (for example, illness preventing attendance), they consider the case, referring to the deliberate delay in the proceedings. However, the defendant's failure to appear, which led to the repeated postponement of the trial, does not yet indicate a deliberate delay in the process.The court must have reliable information that the defendant committed intentional acts to achieve such a result.: evades receiving a summons, prevents other participants in the case, witnesses, etc. from appearing in court.The court's announcement of the defendant's wanted list is not an obstacle to the consideration of the case. In this regard, the search for the defendant may be announced along with the court's decision.
3. Strengthening the principles of competitiveness and dispositivity presupposes maximum dependence of the results of resolving the case on the actions of the parties and other persons involved in the case to prove and convince the court of the legality of their claims and objections and having the opportunity to use the court to dispose of their procedural rights.In this regard, proper notification and summonses are necessary conditions for ensuring timely and proper resolution of the case during the trial., Their absence may lead to a violation of the rules of procedural law and to the issuance of an illegal and (or) unjustified judicial act. Violation of the requirements of Chapter 11 of the CPC regarding judicial notification and summons are violations of the constitutional right to be heard in court. It is from this point of view that compliance with the procedural rights of participants in the judicial process should be assessed.4. In accordance with subparagraph 7) of Article 135 of the CPC, a court order is issued if the authorized body conducting the search for the defendant or the debtor has filed a claim for recovery of expenses related to the search for the debtor, the defendant and (or) the child.
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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