Comments to Article 148. Form and content of the statement of claim of the Civil Procedure Code of the Republic of Kazakhstan

1. A statement of claim shall be filed with the court of first instance in writing or in the form of an electronic document.

2. The application must specify:1) the name of the court to which the claim is filed; 2) the surname, first name and patronymic (if it is indicated in the identity document) of the plaintiff, his date of birth, place of residence, individual identification number, and if the plaintiff is a legal entity, its full name, location, business identification number and bank details; the name of the representative and his address, if the application is submitted by a representative. The application must contain information about the cellular subscriber number and the e-mail address of the plaintiff and representative, if any; 3) the surname, first name and patronymic (if indicated in the identity document) of the defendant, his place of residence, individual identification number (if known to the plaintiff), if the defendant is a legal entity, then its full name, location, bank details (if known to the plaintiff) and business identification number (if known to the plaintiff). The application must contain information about the cellular subscriber number and the defendant's e-mail address, if known to the plaintiff; 4) the nature of the violation or threat of violation of the rights and freedoms of a citizen or legitimate interests of the plaintiff and the plaintiff's claims; 5) the circumstances on which the plaintiff bases his claims, as well as the content of evidence confirming these circumstances;6) information on compliance with the pre-trial procedure for contacting the defendant, if this is established by law or provided for by the contract; 7) the price of the claim, if the claim is subject to evaluation, as well as the calculation of the amounts of money being recovered or disputed; 8) a list of documents attached to the statement of claim.

3. A statement of claim filed by a prosecutor in the state or public interest must contain a justification for what the state or public interest is, which legitimate interests have been violated, as well as a reference to the law to be applied. In the case of a prosecutor's appeal in the interests of a citizen, the statement of claim must contain a justification for the reasons for the impossibility of filing a claim by the citizen himself. The statement of claim must be accompanied by a document confirming the consent of the citizen or his legal representative to file a claim with the prosecutor in court, except in cases of filing a claim in the interests of an incapacitated person.

4. The statement of claim shall be signed by the plaintiff or his representative if he has the authority to sign the statement of claim. When filing a claim in the form of an electronic document, it is certified by the electronic digital signature of the plaintiff or his representative.The claim procedure is the main type of protection of the right in the court of first instance. A claim in a civil proceeding is an appeal to the court of an interested person with a claim to protect a violated or disputed right or legitimate interest by resolving a dispute over law. The commented article sets out the requirements for the form and content of the statement of claim.

1. A statement of claim may be filed with the court in writing or in the form of an electronic document. A written application form is a paper document that can be handwritten or computer generated. The use of an electronic document is regulated by the Law "On Electronic Documents and Electronic Digital Signatures". According to this Law, an electronic document is a document in which information is presented in electronic and digital form and certified by means of an electronic digital signature. An electronic document conforming to the requirements of this Law is equivalent to a paper document.The content of this provision indicates the method of submitting an application in the usual manner or through the use of information technology. In turn, the procedure for submitting documents, including in the form of electronic documents, is regulated by the instructions for record keeping in courts.

2. Part two of the commented article provides for mandatory requirements for the content of the statement of claim, that is, the information reflected in the statement of claim.1)-3) A statement of claim is filed in court in accordance with the rules of jurisdiction established by Chapter 3 of the CPC. If the defendant's place of residence is unknown to the plaintiff, the statement of claim may be filed with the court at the defendant's last known place of residence or the location of his property.The names of the plaintiff and the defendant must be indicated in full (surname, first name, patronymic (if known), or, if the party is an organization, its corporate name, legal address and other details). The specified information is mandatory, and therefore the plaintiff must establish it and indicate it to the court.A branch of the company or a representative office are not legal entities, therefore, a legal entity should be indicated as the plaintiff.In addition, the statement of claim should include the identification data of the plaintiff and the defendant, their contact information (cellular subscriber number, e-mail address). This provision is consistent with the requirements of Chapter 11 of the CPC, which regulates the issues of court summonses and notices, according to which it is possible to notify the parties, including through SMS messages and using information technology.4) The essence of the claim submitted to the court is set out in the statement of claim. The description of the violation of the rights and freedoms and legitimate interests of the plaintiff must be carried out taking into account their legal qualifications, that is, with reference to regulatory legal acts. Claims should be formulated clearly, and they should comply with the ways provided for by law to protect rights.

5) For the proper resolution of the case, it is important how the plaintiff indicated the circumstances on which he bases his claim against the defendant. It is necessary to indicate legally significant facts that determine the subject of proof in the case, the substantive claim of the plaintiff to the defendant.The correct preparation of a statement of claim allows the judge to determine the range of circumstances in the case, the participants in the process, and the law according to which the dispute is to be resolved.For certain categories of cases, the regulatory rulings of the Supreme Court clarify exactly what information should be indicated in the statement of claim. Thus, in accordance with the normative resolution of the Supreme Court No. 5 of April 28, 2000 "On the application of legislation by courts when considering cases of divorce", the statement of claim must indicate when and where the marriage was registered, whether there are common children, their age, whether the spouses have reached an agreement on the place of residence of the children, the motives the dissolution of marriage, etc.According to the statements to be considered in special and special claim proceedings, in addition to the general requirements provided for in Article 148 of the CPC, The norms of the relevant chapters establish other mandatory requirements.6) Information on compliance with the pre-trial procedure for contacting the defendant must be indicated in the statement of claim, if such procedure is established by law or provided for in the contract. This requirement must be met before submitting a statement of claim to the court.Pre-trial settlement is not mandatory for all categories of cases. For example, in accordance with the second part of Article 403 of the Civil Code, a claim to amend or terminate a contract may be filed by a party in court only after receiving a refusal from the other party to the proposal to amend or terminate the contract or failure to receive a response within the time period specified in the proposal or established by law or contract, and in its absence - within thirty days.Article 706 of the Civil Code contains the requirement that, before filing a claim against the carrier arising from the carriage of goods, it is mandatory to file a claim with him in accordance with the procedure provided for by law. In this case, we are talking about the Law "On Railway Transport", which contains an independent chapter 11 "Acts, claims, lawsuits", regulating the pre-trial settlement of disputes.According to articles 61, 208 of the Law "On State Property", it is provided for sending a preliminary notification to the owner or a non-governmental land user in case of failure to reach an agreement on the seizure of a land plot or on the value of property seized for state needs and the amount of damages to be reimbursed. Upon the expiration of three months from the date of receipt of the notification, but not later than the deadline (date) for the compulsory alienation specified in the resolution, the local executive body has the right to file a lawsuit with the court for the compulsory alienation of a land plot or immovable property in connection with the seizure of a land plot for state needs.Pre-trial settlement is also mandatory for certain categories of disputes in the field of consumer protection; labor legislation; legislation on intellectual property, etc.In addition, when drafting contracts, the parties may provide for the settlement of disputes through negotiations; the use of institutions for the peaceful settlement of disputes (mediation, ombudsmen, participatory procedure and other conciliation procedures); in an alternative way (arbitration); indicate in the contract that an appeal to the court is possible after a preliminary claim has been submitted to the other party and the party has failed to fulfill its obligations, or the claim has been left unanswered within the time limit set by the author. 

Failure to comply with the pre-trial dispute settlement procedure entails the return of the statement of claim by the judge or the abandonment of the application without consideration by the court, if the need to comply with such a procedure is established during the trial (see commentary to Articles 152, 279 of the CPC).At the same time, Chapter 10 of the CPC, which regulates court costs, stipulates that expenses incurred by a party in the pre-trial settlement of a dispute are reimbursed by the party against whom the court decision was rendered. This provision is a kind of mechanism aimed at resolving the dispute before the court, in which the parties will be interested.7) The statement of claim shall indicate the price of the claim, if the claim is subject to evaluation, as well as the calculation of the amounts of money to be recovered or disputed. A statement of claim demanding the recovery of the amount of debt, loan or other monetary claim in a foreign currency from the defendant is not accepted by the court. The price of the claim in the application must be indicated in tenge. The total amount calculated is the total amount that the plaintiff requests to recover from the defendant (see commentary to Article 105 of the CPC).8) A list of documents attached to the application must be indicated in the statement of claim.

3. A statement of claim filed by a prosecutor must contain a justification of what the state or public interest is, what right has been violated, and a reference to a law or other regulatory legal act. If a prosecutor files a claim in the interests of a citizen, the reasons for the impossibility of filing a claim by the citizen himself must be substantiated, and a document confirming the citizen's consent to file a claim with the court must be attached to the application, except in cases of filing a claim in the interests of an incapacitated person.

4. The statement of claim is signed by the plaintiff or his representative if he has the authority to sign the statement of claim, which must be indicated in the power of attorney. The application submitted in the form of an electronic document is certified by the electronic digital signature of the plaintiff or his representative. The authority to represent the interests of the principal is issued in accordance with the requirements of Articles 60, 61 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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