Comments to article 138. Grounds for refusal to accept and return an application for a court order of the Civil Procedure Code of the Republic of Kazakhstan

1. A judge refuses to accept or returns an application for a court order on the grounds provided for in Articles 151, 152 of this Code. In addition, the judge returns the application in cases where:1) the claimed claim is not provided for in Article 135 of this Code; 2) the debtor's place of residence or location is outside the Republic of Kazakhstan; 3) documents confirming the claimed claim have not been submitted; 4) there is a dispute about the right, which is subject to consideration in the course of claim proceedings; 5) the form and content of the application do not meet the requirements Article 136 of this Code; 6) the application has not been paid for by the state fee.

2. The judge shall issue a ruling on the refusal to accept or return an application within three working days from the date of receipt of the application to the court.3. The return of the application does not prevent the re-filing of an application to the court for the issuance of a court order or the filing of a claim against the same defendant, on the same subject and on the same grounds, if they eliminate the violation.4. The judge's ruling on the refusal to accept or return the application may be appealed to the court of appeal, whose decision is final.

1. In accordance with the first part of the commented article, a judge refuses to accept an application for a court order or returns it on the same grounds as those established by the CPC regarding the statement of claim. The grounds for refusing to accept the statement of claim are provided for in Article 151 of the CPC, the grounds for returning the statement of claim - in Article 152 of the CPC.In addition, additional grounds have been established for the return of the application (sub-paragraphs 1)-6) of the first part of the specified article).It appears that the grounds indicated in subitems 1), 2) and 4) for returning the application are in fact grounds for refusing to accept it.So, if the stated claim is not provided for in the list of requirements for which a court order is issued (Article 135 of the CPC), it is not subject to consideration in writ proceedings. In this case, the recoverer has the right to apply to the court for protection of his rights and legitimate interests in the order of claim proceedings. The claim is not subject to consideration in writ proceedings if the debtor's place of residence or location is outside the Republic of Kazakhstan. This is explained by the fact that in other States it may be difficult to recognize and enforce court orders that are not decisions and issued without a court hearing. The possibility of considering a claim in writ proceedings is excluded if there is a dispute about the law that is to be considered in the course of the claim proceedings. Due to the fact that the claimant does not have documents confirming the indisputability of the stated claim, it becomes necessary to conduct a trial with the participation of the parties to the dispute.

2. In case of refusal to accept or return the application for the issuance of a court order, the judge shall issue an appropriate ruling. This determination must be made within three working days from the date of receipt of the application. The rules for calculating and determining the end of the specified procedural period are set out in articles 122, 123 of the CPC. The content of the definition must comply with the requirements of Article 269 of the CPC, with appropriate exceptions.

3. The return of the application does not prevent the re-filing of an application to the court for the issuance of a court order or the filing of a claim against the same defendant, on the same subject and on the same grounds. A mandatory requirement in this case is the elimination by the applicant of the violation committed, in connection with which the application was returned. However, it should be noted that the circumstances provided for in paragraphs 1), 2) and 4) of the first part of this article cannot be eliminated. Therefore, if the application is returned on the above grounds, the right to re-file an application against the same debtor, on the same subject and on the same grounds is excluded.4. A judge's ruling on the refusal to accept or return an application for a court order may be appealed to a court of appeal, whose decision is final. The procedure and time limits for appealing these rulings are established by part one of Article 429 of the CPC. These rulings are not subject to appeal to the court of cassation.

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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