Comments to article 27. Jurisdiction of civil cases to specialized courts, specialized court structures and the Court of the City of Astana of the Civil Procedure Code of the Republic of Kazakhstan

Specialized inter-district economic courts consider and resolve civil cases on property and non-property disputes, the parties to which are individuals engaged in individual business activities without forming a legal entity, legal entities, as well as corporate disputes, with the exception of cases the jurisdiction of which is determined by law to another court.Corporate disputes include disputes to which a commercial organization or an association (union) of commercial organizations is a party., an association (union) of commercial organizations and (or) individual entrepreneurs, a non-profit organization with the status of a self-regulatory organization in accordance with the laws of the Republic of Kazakhstan, and (or) its shareholders (participants, members), including former (hereinafter referred to as corporate disputes) related to:

1) creation, reorganization and liquidation of a legal entity;

2) ownership of shares of joint-stock companies, shares in the authorized capital of business partnerships, shares of cooperative members, the establishment of their encumbrances and the exercise of the rights arising from them, including the recognition of transactions with them as invalid, with the exception of disputes arising in connection with the division of hereditary property or the division of the common property of spouses, including shares of a joint-stock company companies, shares of participation in the authorized capital of business partnerships, shares of cooperative members; 3) claims for damages, caused to the legal entity by the actions (inaction) of officials, founders, shareholders, participants (hereinafter referred to as the participants of the legal entity) and other persons;

4) invalidation of transactions and (or) application of the consequences of the invalidity of such transactions;

5) appointment or election, termination, suspension of powers and responsibility of persons who are or were part of the governing bodies of a legal entity, as well as disputes arising from civil law relations between such persons and a legal entity in connection with the exercise, termination, suspension of their powers;

6) by issuing securities;

7) maintaining a system of registers of securities holders, taking into account the rights to shares and other securities, as well as disputes related to the placement and (or) circulation of securities; 8) invalidating the state registration of the issue of shares;

9) by convening and holding a general meeting of the participants of the legal entity and the decisions taken there; 10) challenging the decisions, actions (inaction) of the governing bodies of the legal entity.

Specialized inter-district economic courts also consider cases on the restructuring of financial organizations and organizations that are part of a banking conglomerate as a parent organization and are not financial organizations, in cases provided for by the laws of the Republic of Kazakhstan, bankruptcy cases of individual entrepreneurs and legal entities and rehabilitation of legal entities.

2. Military courts consider civil cases on appeal by military personnel of the Armed Forces, other troops and military formations, citizens undergoing military training, actions (inaction) of officials and bodies of military administration. Military courts also consider other civil cases if one of the parties is a serviceman, military administration bodies, or a military unit, with the exception of cases under the jurisdiction of other specialized courts.

3. Specialized inter-district juvenile courts consider and resolve civil cases on disputes concerning the determination of the child's place of residence; determining the procedure for parent-child communication and taking the child away from other persons; determining the child's place of residence when the child leaves the republic with one of the parents for permanent residence; deprivation (restriction) and the restoration of parental rights; on the adoption of a child and its cancellation; on sending minors to special educational institutions or organizations with a special regime of detention; on disputes arising from custody and guardianship (patronage) over minors; on establishing the paternity of a minor and collecting alimony from him; on applications for the restriction or deprivation of a minor aged from fourteen to eighteen years of the right to independently manage their income; on the announcement of the minor is fully capable (emancipation); on establishing paternity and on collecting alimony in percentage terms or a fixed amount of money for the maintenance of a child; on reducing the amount of alimony; on protecting the labor and housing rights of minors; on compensation for damage caused jointly by minors and adults, including those involving legally incompetent or disabled adults.At the request of the legal representatives of a minor, cases within the jurisdiction of a specialized interdistrict juvenile court may be considered or may be transferred to the district (city) court at the child's place of residence, with the exception of cases within the jurisdiction of district (city) courts located within the city of republican significance and the capital, regional centers. The petition may be filed before the completion of the preparation of the case for trial.

4. The Astana City Court, in accordance with the rules of the court of first instance, considers and resolves civil cases on investment disputes, except for cases within the jurisdiction of the Supreme Court of the Republic of Kazakhstan, as well as other disputes between investors and government agencies related to the investor's investment activities.

5. Other disputes arising from legal relations involving an investor that are not related to investment activities, as well as disputes involving an investor that are subject to simplified proceedings, are subject to the jurisdiction of district (city) and equivalent courts in accordance with the jurisdiction established by Chapter 3 of this Code.This article defines the jurisdiction of specialized courts and the specialized composition of the Astana City Court. This is due to the further deepening of specialization in order to improve the professionalism of judges in a particular field of law and the quality of the administration of justice in general.

1. By Decree of the President of the Republic of Kazakhstan No. 803 dated February 9, 2002, specialized inter-district economic courts were established in the republic, authorized to consider economic disputes in accordance with current legislation.Specialized inter-district economic courts consider and resolve civil cases on property and non-property disputes, corporate disputes.

The parties to the proceedings are individuals engaged in individual business activities without forming a legal entity, as well as legal entities.Thus, the main criterion of jurisdiction is formed as the nature of the disputed legal relationship and the content of the dispute. - the subject composition of the parties.Specialized inter-district economic courts also consider cases on the restructuring of financial organizations and organizations that are part of a banking conglomerate as a parent organization and are not financial organizations, in cases provided for by law, bankruptcy cases of individual entrepreneurs and legal entities and rehabilitation of legal entities.Taking into account the relevance of corporate disputes, the article gives the concept of these disputes, the composition of the parties to the dispute, and also provides a complete list of possible corporate disputes.

2. The determination of the jurisdiction of military courts is not difficult - these courts consider civil cases of appeals by military personnel of the Armed Forces, other troops and military formations, citizens undergoing military training, actions (inaction) of officials and military authorities. Military courts also consider other civil cases if one of the parties is a serviceman, military administration bodies, or a military unit, with the exception of cases under the jurisdiction of other specialized courts.The subject matter of legal relations - one of the parties is a serviceman, a military command body, a military unit, does not allow to make a mistake with the definition of jurisdiction of military courts.

3. Part Three contains a list of cases within the jurisdiction of specialized inter-district juvenile courts.The legislator has very clearly outlined the categories of disputes within the jurisdiction of such courts.According to the subparagraph

4) of Article 135 of the CPC, a court order may be issued upon a request for the recovery of alimony for minor children, not related to the establishment of paternity, challenging paternity (motherhood) or the need to involve third parties, that is, not related to a dispute over the right.The definition of such jurisdiction is dictated by expediency, by establishing the possibility of an interested person's territorial appeal to the general court without going to the regional center, where the specialized interdistrict juvenile court is located., as well as the number of requests for this category and the indisputability of the requirements in the majority.The third part of Article 27 of the CPC regulates that the juvenile court hears cases of adoption of a child and its cancellation. In order to ensure the realization of the right to access justice, given that specialized inter-district juvenile courts are mainly located in regional centers remote from district centers, the legislator provided for the possibility, at the request of the legal representatives of a minor, to consider or transfer cases within the jurisdiction of a specialized inter-district juvenile court to the district (city) the court at the place of residence (location) of the child, with the exception of cases within the jurisdiction of district (city) courts, located within the city of republican significance and the capital, regional centers.

4. The concepts of investment, investment dispute, investment activity, investor and large investor are given in the PC.Articles 274, 296 of the PC establish that investments are all types of property (except goods intended for personal consumption), including financial leasing items from the moment of conclusion of the lease agreement, as well as the rights to them invested by the investor in the authorized capital of a legal entity or an increase in fixed assets used for entrepreneurial activities, as well as for the sale of public-private partnership project, including the concession project.

An investor is defined as individuals and legal entities making investments in the Republic of Kazakhstan.A major investor is a natural or legal person who invests in the Republic of Kazakhstan in the amount of at least two million times the monthly calculation index.

An investment dispute is a dispute arising from contractual obligations between investors, including large investors, and government agencies in connection with the investor's investment activities.Investment disputes are resolved through negotiations or in accordance with a dispute resolution procedure previously agreed upon by the parties.

If it is impossible to resolve investment disputes in accordance with these provisions, disputes are resolved in accordance with international treaties and legislative acts of the Republic of Kazakhstan in the courts of the Republic of Kazakhstan, as well as international arbitrations determined by agreement of the parties.

Such civil cases on investment disputes within the jurisdiction of the general courts, except for cases within the jurisdiction of the Supreme Court, as well as other disputes between investors and government agencies related to the investor's investment activities, are referred to the jurisdiction of the specialized composition of the Astana City Court.

These cases will be considered by the Astana City court according to the rules of the court of first instance. At the same time, cases will be considered not only with the participation of investors stationed in Astana, but also with the participation of investors from all over the republic.The fourth part of Article 27 of the CPC lists the categories of litigation involving investors: investment disputes, except cases within the jurisdiction of the Supreme Court; other disputes between investors and government agencies related to the investor's investment activities.The difference between the first and the second of the above categories of disputes is whether the dispute is related to the contractual relationship between the investor and government agencies in the first or the absence of such in the second.If an investor's dispute with a government agency is related to the investor's investment activities and results from contractual relations with a government agency, then its consideration belongs to the jurisdiction of the specialized composition of the Astana city court, and for a large investor - the specialized judicial board of the Supreme Court. This category should include disputes related to the conclusion, modification, or termination of an investment contract, the return of government grants in kind, and the amounts of taxes and customs duties that the investor was exempt from paying in accordance with the investment contract.If an investor's dispute with a government agency is related to the investor's investment activities, but does not arise from contractual relations with the government agency, then its consideration belongs to the jurisdiction of the specialized court of the city of Astana, regardless of the size of the investor. Disputes concerning appeals against actions of tax and other regulatory authorities on additional taxes and other payments based on the results of investment activities should be included in this category.If the dispute involving the investor is not related to the investor's investment activities, or the other party to the dispute is not a government agency, then its consideration belongs to the jurisdiction of courts of general jurisdiction or specialized inter-district economic courts, depending on the status of the other parties to the dispute. These are disputes arising from the investor's employment relationship with his employees, corporate disputes involving the investor, disputes from non-contractual obligations, including torts, for example, in the case of damage to third parties by vehicles or an employee of the investor as a result of a traffic accident.

5. Part five of the commented article provides that other disputes arising from legal relations involving an investor that are not related to investment activities, as well as disputes involving an investor that are subject to simplified proceedings, are subject to the jurisdiction of district (city) and equivalent courts in accordance with the jurisdiction established by Chapter 3 of the CPC.At the same time, investment activity is recognized as the activity of individuals and legal entities to participate in the authorized capital of commercial organizations or to create or increase fixed assets., used for business activities, as well as for the implementation of a public-private partnership project, including a concession project. 

Additional comment3. The transfer of disputes in cases involving the interests of minor children to the jurisdiction of a specialized inter-district juvenile court is consistent with the specifics of the consideration of such cases and is aimed at protecting the interests of the child. If the recoverer or plaintiff has applied to the specialized interdistrict juvenile court with an application for a court order for the recovery of alimony or with a claim for establishing paternity and for the recovery of alimony (simultaneous application of claims or separately) in percentage or in a fixed amount of money for the maintenance of the child, then such claims must be considered by the same by the court.By virtue of part four of Article 30 of the CPC (jurisdiction at the plaintiff's choice), claims for establishing paternity and for collecting alimony may be filed at the plaintiff's place of residence. Consequently, with an application for the issuance of a court order for the recovery of alimony, or with a claim for establishing paternity and for the recovery of alimony (simultaneous application of claims or separately) in percentage or in a fixed amount of money for the maintenance of a child, the recoverer, the plaintiff may apply to the court at their place of residence. It is especially important for the court to consider claims for the recovery of alimony in cases where a conflict is resolved between the parties through mediation. The plaintiff must have the right to choose the statement of such claims. In the early version of the CPC, the same provisions existed regarding the jurisdiction of the plaintiff's choice. At the same time, filing a lawsuit with the court only for the recovery of alimony was not a reason for returning the application, since they were not filed simultaneously with the claim for establishing paternity.The recovery of alimony is the main requirement related to the interests of children, and the claimant (applicant) should have a choice. Other disputes related to the interests of children, but not included in the list of categories of cases considered by this court, can also be considered by the specialized inter-district juvenile court, if the parties do not object to this, and their consideration is aimed at resolving the conflict between the parties.In accordance with the commented norm, at the request of the legal representatives of a minor, cases referred to the jurisdiction of the specialized interdistrict juvenile court, may be considered or may be transferred to the district (city) court at the place of residence (location) of the child, with the exception of cases within the jurisdiction of district (city) courts located within the city of republican significance and the capital, regional centers. The petition may be filed before the completion of the preparation of the case for trial.

The above means that the petition of the legal representatives of the minor may be filed initially simultaneously with the filing of a claim to the appropriate court at the place of residence (location) of the child, or a petition may be filed to transfer the case to the district (city) court at the place of residence (location) of the child before the completion of the preparation of the case for trial.

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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