Comments to Article 147. Decision on the case considered in the simplified (written) procedure of the Civil Procedure Code of the Republic of Kazakhstan

1. In a case considered in a simplified (written) procedure, a brief decision shall be made, which must comply with the requirements established by Chapter 19 of this Code. Copies of the court decision are sent to the parties using means of communication that ensure that it is received, or are issued no later than five working days from the date of the final decision.

2. The defendant has the right to file with the court that rendered the decision in a simplified (written) procedure an application for cancellation of this decision within five working days from the date of receipt of a copy of the court decision. The application is filed if the defendant has not been properly notified of the receipt of the statement of claim and its consideration in a simplified (written) procedure and has not been able to provide feedback, as well as evidence that may affect the content of the decision.

3. An application for revocation of a decision shall be considered in accordance with the rules established by Chapter 21 of this Code, taking into account the requirements provided for in Part two of this Article.

4. The decision may be appealed by the parties or appealed by the prosecutor on appeal after the expiration of the time limit for filing an application for revocation of this decision, and if the application is filed, within one month after the court's ruling on the refusal to satisfy this application.5. In the order of simplified (written) proceedings, the proceedings on the case may be terminated, the application left without consideration on the grounds established by Articles 277, 279 of this Code, according to the documents submitted by the parties without summoning the parties.

1. In a case considered in a simplified (written) procedure, the court issues a brief decision consisting of introductory, motivational and resolute parts, which must comply with the requirements established by Chapter 19 of the CPC. Copies of the court decision are sent to the parties using means of communication and delivery, ensuring that its receipt is recorded by the addressee (by registered mail with notification, via electronic information services and portals), or are issued to the plaintiff, the defendant or their representatives no later than five working days from the date of the final decision. Making a short decision does not exclude the announcement of the operative part and the preparation of a short decision in final form within five working days. According to the third part of Article 403 of the CPC, an appeal or protest may be filed within one month from the date of the final decision, with the exception of the cases established by this Code, and by persons who did not participate in the court proceedings from the date of sending them a copy of the decision. Consequently, the time limit for appealing a final court decision immediately after the judicial review is calculated from the specified date within one month. If only the operative part of the decision has been announced, the time limit for appeal is calculated from the moment the decision is made in final form, which should not exceed five working days established by part four of Article 223 of the CPC. In accordance with the first part of Article 240 of the CPC, the decision of the court of first instance enters into force after the expiration of the time limit for its appeal, if it has not been appealed or protested. The stated rules do not contain an exception for a short decision, therefore, a short decision can be appealed according to the same rules. The date of entry into force of the decision is calculated taking into account the specified features. If the court has issued a reasoned decision at the request of the parties, the period of entry into force of the court decision is calculated taking into account the rules established in part three of Article 403 of the CPC.

2. The defendant has the right, within five working days from the date of receipt of a copy of the decision, to file with the court that rendered the decision in simplified (written) proceedings, an application for the cancellation of this decision. The basis for the cancellation of a court decision may be the presence of a combination of two conditions: improper notification of the defendant of the receipt of the statement of claim and its consideration in a simplified (written) procedure; the presence of evidence that may affect the content of the decision. These circumstances must be reflected in the application and confirmed by the relevant documents.

3. An application for annulment of a decision shall be considered by the court within ten working days from the date of its receipt in accordance with the rules established by Chapter 21 of the CPC, subject to the requirements provided for in part two of this Article. The court notifies the plaintiff and the defendant of the time and place of consideration of the application, sends the plaintiff copies of the application and the materials attached to it. The non-appearance of the parties notified of the time and place of the court session does not prevent the consideration of the application.The court, having considered the application for annulment of the decision, issues a ruling on the refusal to satisfy the application or on the annulment of the decision taken in a simplified (written) procedure and the resumption of consideration of the case on its merits by the same court in accordance with the general rules of claim proceedings. A court ruling on the cancellation of a decision taken in a simplified (written) procedure, or on the refusal to cancel such a decision, is not subject to appeal. After the cancellation of the court's decision in a case considered in simplified (written) proceedings, the court considers it according to the rules of claim proceedings in a general manner with the preparation of the case for trial. The beginning of the expiration date is calculated from the date of cancellation of the court decision.

4. A decision rendered in a simplified (written) procedure may be appealed by the parties or appealed by the prosecutor on appeal within one month after the expiration of the time limit for filing an application for revocation of this decision, and if the application is filed after the court has issued a ruling rejecting this application. The procedure for appealing is similar to the procedure for appealing a court decision in absentia. The peculiarity of the appeal procedure is that the defendant or his representative, if he has the appropriate authority, has the right to appeal the decision made in a simplified (written) procedure to the court that issued the decision. This corresponds to the goals of simplifying and speeding up the process, timely restoration of violated rights.Judicial acts of the court of appeal in cases considered in a simplified (written) procedure cannot be appealed to the cassation instance (see commentary to Article 434 of the CPC).Appeals of persons participating in the case or the appeal of the prosecutor are considered in the general procedure established for appealing decisions of the courts of first instance.

5. In the order of simplified (written) proceedings, the proceedings in the case may be terminated, the application left without consideration on the grounds established by Articles 277, 279 of the CPC, according to the documents provided by the parties without summoning the parties. During the period when the case is in court, the parties may conclude an amicable agreement outside the court, settle the dispute through mediation, a participatory procedure, or otherwise, and submit to the court an application for approval of such an agreement. Since in simplified (written) proceedings, the case is considered without calling the parties, it is important that the agreements indicate that the legal consequences of termination of the proceedings provided for in Article 278 of the CPC are known to the parties or they are familiar with them. The court has the right to specify such an explanation of the rights to reconciliation and its legal consequences in the notice of acceptance of the statement of claim in accordance with parts two and three of Article 146 of the CPC, sent to the parties. If the court concludes that the terms of the settlement agreement contradict the law or violate the rights of third parties, or the parties should clarify issues related to its conclusion, as well as if the agreement does not specify familiarization with the legal consequences arising from the termination of proceedings, the court proceeds to consider the case according to the rules of claim proceedings. in the general order. The provisions of Article 278 of the CPC may be reviewed by the parties in court when submitting an agreement for approval, but only in the case of an oral trial. If it is necessary to make an additional decision, correct arithmetic errors, clarify the court decision, etc. applications are considered in accordance with the procedure established by the CPC, but in the initially chosen form of proceedings - simplified (written) proceedings without an oral trial, with notification to the other party of the receipt of such an application. When providing evidence of the representation expenses incurred, such claims are considered in a simplified (written) procedure in accordance with the procedure established by Chapter 8 of the CPC, which regulates court costs.

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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