Comments to article 15. Competitiveness and equality of the parties of the Civil Procedure Code of the Republic of Kazakhstan

1. Civil legal proceedings shall be conducted on the basis of competition and equality of the parties. The parties involved in the civil procedure are endowed by this Code with equal opportunities to defend their position.2. In the course of civil proceedings, the parties shall choose their position, ways and means of defending it independently and independently of the court and other persons participating in the case.3. The court is completely exempt from collecting evidence on its own initiative in order to establish the factual circumstances of the case, however, upon a reasoned request from the party, it assists her in obtaining the necessary materials in accordance with the procedure provided for by this Code.4. The court, while maintaining objectivity and impartiality, manages the process and creates the necessary conditions for the parties to exercise their procedural rights to a full and objective investigation of the circumstances of the case. The court explains to the persons participating in the case their rights and obligations, warns of the consequences of the commission or non-completion of procedural actions and, in cases provided for by this Code, assists them in the exercise of their rights. The court bases the decision only on those evidences, the participation in the study of which was provided on an equal basis by each of the parties.5. The Court shall treat the parties equally and with respect.1. The principles set forth in this article are among the fundamental principles of civil procedure law. The adversarial principle defines the possibilities and obligations of the parties to prove the stated claims and objections when defending their legal position. The principle of dispositivity finds its expression not only in procedural law, but also in substantive law. Article 2 of the Civil Code stipulates that citizens and legal entities acquire and exercise their civil rights voluntarily and in their own interest. These principles are based on the equality of the parties.2. The significance of these principles lies in the fact that they have significantly changed the role of the court in the process of proving a civil case.3. Article 14 of the Constitution stipulates that everyone is equal before the law and the courts. The Constitutional Council, in its Resolution No. 7/2 of March 29, 1999, interpreted that this principle establishes equality of individual rights and duties, equal protection of these rights by the State, and equal responsibility of everyone before the law. The constitutional norm applies not only to all citizens and individuals, but also to all other participants in procedural legal relations with the court, as well as to all types and levels of judicial bodies (court of first instance, appellate and cassation instances).According to the subject matter, equality, as a principle of civil proceedings, regulates the behavior of specific subjects - the parties, the plaintiff and the defendant. A party to a civil procedure as a subject of a legal relationship may have a diverse number of participants (citizens or legal entities). Equality of the parties means equal civil procedural opportunities in relation to defending and proving one's position on a civil case in court. This is manifested in the following:- the state and all citizens and legal entities have a single procedural legislation that applies to all in the administration of justice; - all citizens and legal entities in the same procedural position have the same set of rights and obligations (Article 46 of the CPC);- When considering a case, preference may not be given to one side or the other based on gender, race, nationality, language, origin, property or official status, place of residence, attitude to religion, beliefs, membership in public associations, political parties and other circumstances. Equality in the procedural rights of legal entities does not depend on their legal status, location, subordination and other circumstances.;- consideration of the case by the court, which has jurisdiction and jurisdiction over the case (Chapter 3 of the CPC);- legislative consolidation of the legal status of the court (independence, impartiality, impartiality, competitiveness, objectivity). When exercising the procedural rights of citizens, the court does not have the right to apply procedural legislation at its discretion.The explanatory dictionary of the Russian language by Dahl V.I. defines the word "equal" as the same, one in all similar. Thus, the equality of the parties or other persons involved in the case (Chapter 5 of the CPC) implies that they should be in an equal position, and the court should not infringe on their rights. By granting one party specific procedural rights, the law grants similar rights to the other party. So, if Article 48 of the CPC grants the plaintiff the right to change the basis or subject of the claim, then the defendant is granted the right to change the grounds of objection previously raised against the claim, the right to recognize the claim, and to file a counterclaim. Thus, neither side enjoys any advantage over the other side. Each party, by virtue of Article 57 of the CPC, has the right to have a representative at the court hearing. When preparing a case for trial, each party has the right to count on assistance from the court in obtaining the necessary evidence if there is a written request (subparagraph 11) of Article 165 of the CPC)._________________9 Explanatory Dictionary of the Russian language by V.I. Dahl, Modern version - Moscow, Eksmo Publishing House, 2003, p. 736.

4. The principle of dispositivity ensures that the persons participating in the case freely dispose of their material and procedural rights related to the emergence, movement and termination of the proceedings in the case.According to the current civil procedure legislation, the principle of dispositivity, on the one hand, determines the freedom of action of a person to apply to the court for protection of violated rights by providing evidence and choosing the position of protection that, in the opinion of the plaintiff, is most beneficial to him. Judicial practice shows that at this stage of society's development, the current civil procedure legislation fulfills its role in providing a mechanism for protecting the rights, freedoms and legitimate interests of individuals and legal entities.As a general rule, a civil case can be initiated only at the will of the applicant (plaintiff), i.e. a person who has applied to the court for protection of his rights, freedoms and legitimate interests. This rule implements the provision on the freedom of interested persons to apply to the court for protection of their violated rights. The exception to this rule is established by laws. Thus, the prosecutor has the right to apply to the court with a claim, an application for the protection of the rights, freedoms and legitimate interests of citizens, the rights and legitimate interests of organizations, public or state interests (part three of Article 54 of the CPC). In these cases, the prosecutor has the right to file a claim at the request of the person concerned, provided that he himself cannot apply for valid reasons. And a claim in defense of the interests of an incapacitated citizen can be filed by the prosecutor regardless of the request of the person concerned. Article 55 of the CPC also provides for the right of State and local government bodies, organizations or individuals to file a lawsuit in court to protect the rights, freedoms and legally protected interests of others at their request, as well as public or State interests in cases provided for by law. A claim in defense of the interests of an incapacitated citizen may be filed regardless of the request of the person concerned.The principle of dispositivity presupposes consideration of the case by the court that has jurisdiction over it (Chapter 3 of the CPC). So, if the application is not within the jurisdiction of the court to which it is filed, then the judge, by virtue of Article 152 of the CPC, returns the application and explains the right to appeal to the court to which this application is within the jurisdiction. The jurisdiction of civil cases is regulated by the CPC (Articles 26-28). If, according to the case accepted for trial, it is established that the application was filed in violation of the rules of jurisdiction, the court is obliged to transfer the case to the court that has jurisdiction over it (Article 34 of the CPC). Thus, the constitutional principle is respected that no one can change the jurisdiction provided for by law without his consent.The scope of judicial proceedings is also determined by the person who applied to the court. The plaintiff provides evidence in support of the validity of the stated claims. The defendant, objecting to the stated claims, has the right to submit his objections. Each party must provide explanations on the facts referred to by the opposing party. The court is completely exempt from collecting evidence on its own initiative. A person whose right has been violated or challenged independently chooses his position, methods and means of protecting his rights, i.e. a party, before going to court, must assess his strength, legally draw up the documents correctly and collect the necessary evidence to support his arguments. At the same time, the legislator established that if a party is unable to provide evidence, then at the written request of the party, the court is obliged to assist the party in requesting evidence (part four of Article 73 of the CPC). This new provision, enshrined in the CPC, is one of the significant changes compared to Soviet legislation.In accordance with Article 48 of the CPC, the plaintiff has the right, when considering his case, to change the basis or subject of the claim, to reduce or increase the amount of the claims or to abandon the claim, the defendant has the right to recognize the claims, the parties may end the case by an amicable agreement or an agreement on the settlement of a dispute (conflict) through mediation or through a participatory procedure. If the parties commit these procedural actions, the court, in accordance with Articles 177, 180 and 182 of the CPC, is obliged to explain to the parties the legal consequences of such actions before approving the agreements. At the same time, the law stipulates that the court is obliged to verify the terms of the settlement agreement, agreements concluded through mediation or a participatory procedure, the grounds for rejecting the claim, and the recognition of the claim by the defendant. If such actions contradict the requirements of the law or affect the rights and interests of third parties, then the court has no right to approve a settlement agreement, agreements concluded through mediation or a participatory procedure, to accept a waiver of a claim or recognition of a claim. The law does not provide for the termination of the case by an amicable agreement or a waiver of the claim for third parties involved in the process. If a third party has independent claims, then the procedural rights of the party apply to him, therefore, a third party with independent claims has the right to end the case with a settlement agreement or waive the stated claims only according to his claim. The freedom of the parties to dispose of their rights at their discretion, as mentioned above, is limited by the legislator precisely in the interests of legality.In accordance with part two of Article 48, part two of Article 225 of the CPC, the court resolves the case within the limits of the plaintiff's claims and does not have the right to change the subject or the basis of the claim on its own initiative. In the normative resolution of the Supreme Court No. 5 of July 11, 2003 "On judicial decision", it is clarified that when satisfying a claim in cases of recognition of a right, the court is obliged to indicate in the operative part of the decision not only the existence of the right, but also the legal consequences that entail such recognition (for example, when if a marriage is declared invalid, the record of registration of such a marriage is annulled). The KBS regulates that in case of deprivation of parental rights, restriction of parental rights, the court must decide on the recovery of child support from the parents (one of them) deprived of parental rights (paragraph 3 of Article 76, paragraph 5 of Article 79).By giving new meaning to the principles of competitiveness and dispositivity in civil proceedings, the legislator gives the court a certain role in the interests of ensuring legality. In part four of the commented article, it is stated that the court is obliged to create the necessary conditions for the exercise of the rights of the parties to a full and objective investigation of the circumstances of the case. In parts two and three of Article 73 of the CPC, the legislator provided that the circumstances relevant to the proper resolution of the case are determined by the court on the basis of the claims and objections of the parties. If there is insufficient evidence, the court has the right to invite the persons involved in the case to provide additional evidence.The court must ensure that the parties provide timely and complete explanations on all existing facts, including supplementing information on the stated facts, indicating the means of proof, and submitting appropriate petitions. To this end, the court asks questions, clarifies requirements, both at the stage of preparing the case for trial and at a court hearing, has the right to apply part nine of Article 73 of the CPC, subject to clarification of the consequences to the parties, and provides an opportunity to present the position to the parties when examining evidence at a court hearing. The court may oblige a party or a third party to submit the documents and other materials in their possession to which one of the parties referred (to determine the time limit for this), the factual and legal aspects of the circumstances of the case and the dispute. In particular, a court may require a party that is a legal entity to provide an opinion on the application of applicable substantive law and interpretation of the terms of the contract to the dispute being resolved. The court verifies the relevance of the evidence in the case under consideration and establishes its admissibility. When resolving requests for the appointment and conduct of expert examinations, it is the court that definitively determines the content of the issues subject to expert examination, and the court is also granted the right to appoint an expert examination on its own initiative (Article 82 of the CPC).5. The court shows equal and respectful attitude towards the parties, which is reflected in the conduct of all procedural actions in accordance with the principles of civil proceedings.

LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

Astana, 2016

UDC 347 (574)  

By 63

ISBN 978-601-236-042-4

 Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases