Comments to article 154. Conditions for accepting a counterclaim of the Civil Procedure Code of the Republic of Kazakhstan

The judge accepts a counterclaim if:1) the counterclaim is aimed at offsetting the original claim; 2) the satisfaction of the counterclaim excludes the satisfaction of the original claim in whole or in part; 3) there is a mutual relationship between the counterclaim and the original claims, and their joint consideration will lead to a faster and more correct consideration of disputes. The commented article regulates the conditions for accepting a counterclaim.1) The first condition is when the counterclaim is directed to offset the original claim. In accordance with Article 370 of the Civil Code, the obligation is terminated in whole or in part by offsetting a counterclaim, the term of which has come, or the term of which is not specified or determined by the time of demand. A statement from one side is enough to set it off. It is not allowed to set off claims if, at the request of one of the parties, the limitation period is subject to the claim and this period has expired; for compensation for damage caused to life or health; for the recovery of alimony; for life support; to the bank in the process of conservation or liquidation, if the creditor's claims arise from the contract (agreements) of assignment of the right of claim; in other cases provided for by law or contract. Thus, the offset of mutual claims is possible only if these claims are homogeneous in their content.

2) The following condition, when the satisfaction of a counterclaim excludes, in whole or in part, the satisfaction of the original claim. In this case, different requirements may be presented. For example, when considering a case on the dissolution of a marriage, the court has the right in the same proceeding to consider the defendant's counterclaim for the recognition of the marriage as invalid. When considering a case for the recovery of an amount under a loan agreement, it may be declared invalid. When considering a case on the reclamation of immovable property from someone else's possession, a claim may be made to invalidate the contract under which ownership of this property has passed to the plaintiff, or when considering the same case, a claim may be made to recognize ownership of this property.3) Collectively, these conditions define the third condition or the general principle of accepting a counterclaim when there is a mutual relationship between the counterclaim and the original claim., and their joint consideration will lead to a faster and more correct consideration of disputes. For example, a counterclaim for the division of property acquired during the marriage may be filed against a statement of claim for the dissolution of a marriage. The judge issues a ruling on the refusal to accept a counterclaim if there is no mutual connection between the original claim and the counterclaim and their joint consideration is impractical. In accordance with the first part of Article 153 of the CPC, the return of a counterclaim is carried out according to the rules of Article 152 of the CPC. At the same time, this article indicates the possibility of appealing and/or challenging the ruling on the return of the statement of claim. However, based on the content of the provisions of the CPC on filing a counterclaim, it is assumed that the decision to refuse its acceptance is not subject to appeal and protest, since it does not prevent the exercise of the right to judicial protection by filing an independent claim and initiating a civil case on it.

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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