Comments to Article 136. The form and content of the application for a court order of the Civil Procedure Code of the Republic of Kazakhstan

1. An application for a court order shall be filed with a court in accordance with the general rules of territorial jurisdiction established by Chapter 3 of this Code.

2. The application is submitted in writing or in the form of an electronic document. The application must specify:1) the name of the court to which the application is filed; 2) the name of the claimant, his date of birth, place of residence or location, individual identification number, details of the legal entity, business identification number; 3) the name of the debtor, his date of birth, place of residence or location, individual identification number (if known to the applicant), details of the legal entity, business identification number; 4) the claimant's claim and the circumstances on which it is based; 5) a list of attached documents, confirming the stated claim.

3. In the case of a claim for movable property, the value of this property must be indicated in the application, confirmed by the relevant documents.

4. The application is signed by the recoverer or his representative if he has the authority to sign or submit the application. A power of attorney certifying his authority must be attached to the application submitted by the representative.When submitting an application in the form of an electronic document, it is certified by an electronic digital signature of the claimant or his representative. Electronic copies of the documents specified in this article shall be attached to the application submitted in the form of an electronic document.

5. Upon presentation of the claims listed in Article 135 of this Code, without specifying their consideration in the order of writ or claim proceedings, these claims are considered according to the rules of this chapter.

1. The commented norm establishes the requirements for the form and content of an application for a court order. An application for a court order is submitted to the court in accordance with the general rules of territorial jurisdiction established by Chapter 3 of the CPC. The concept of "general rules of territorial jurisdiction" is interpreted ambiguously in the legal literature. Thus, some lawyers believe that, since, according to the general rule of territorial jurisdiction, a claim is filed at the location of the defendant (Article 29 of the CPC), the use of other types of territorial jurisdiction in writ proceedings is excluded. However, it is necessary to pay attention to the fact that the commented norm does not refer specifically to Article 29 of the CPC, but to the entire chapter 3 of the CPC. Therefore, we believe that all other rules of territorial jurisdiction apply in writ proceedings (Articles 30-33 of the CPC). For example, an application for the recovery of alimony for the maintenance of minor children can be submitted, at the option of the claimant, to the court at his place of residence or to the court at the debtor's place of residence. However, these rules are subject to certain exceptions. Thus, Article 31 of the CPC on the exclusive jurisdiction of the cases listed therein can only be applied to claims against carriers arising from contracts for the carriage of goods, passengers or baggage (Part 4).The application is submitted to a court of general jurisdiction if one of the parties is an individual, or to a specialized interdistrict economic court if the parties are individual entrepreneurs and (or) legal entities.

2. The requirements for the form and content of an application for a court order are basically the same as those established for a statement of claim (part two of Article 148 of the CPC). At the same time, there are certain exceptions due to the peculiarities of writ production. In particular, given the indisputable nature of the requirements for which a court order is issued, the application for a court order does not specify information on compliance with the pre-trial dispute resolution procedure. It is not required to provide copies of the application for the number of debtors, since they are not notified of the receipt of the application and the issuance of a court order.

3. If the applicant claims movable property, its value must be indicated. The indicated cost must be confirmed by the documents attached to the application. If there are discrepancies between the value indicated in the application and the value indicated in the relevant documents, the judge may question the indisputability of the claimant's claims and refuse to accept the application. Failure to comply with the established requirements for the form and content of an application for a court order shall entail its return by the judge in accordance with subparagraph 5) of the first part of Article 138 of the CPC.

4. Part Four regulates the requirements for the signature of an application submitted both on paper and in the form of an electronic document. The application must be signed by the claimant or his representative. If the application is signed by a representative, it must be accompanied by a power of attorney indicating this authority.

5. If the application for the claims provided for in Article 135 of the CPC does not indicate that they should be considered in the order of claim or writ proceedings, these claims shall be considered in the order of writ proceedings. Thus, if the claimant in the application did not specify the procedure for considering his claim specified in Article 135 of the CPC, it will be considered in the order of writ proceedings. This provision is valid subject to the indisputability of the stated claim.

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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