Comments to article 58. Representation on behalf of the Civil Procedure Code of the Republic of Kazakhstan

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1. Representatives on behalf of the court may be the following persons::1) lawyers; 2) employees of legal entities - in the cases of these legal entities, and state bodies - in the cases of these state bodies and their territorial divisions; 3) authorized trade unions - in the cases of workers, employees, as well as other persons whose rights and interests are protected by these trade unions; 4) authorized organizations that are granted the right by law, charter or regulation to protect the rights and interests of members of these organizations, as well as the rights and interests of other persons; 5) one of the accomplices on behalf of other accomplices;6) other persons with higher legal education admitted by the court at the request of the persons participating in the case.

2. The representative's procedural powers are confirmed by a duly executed power of attorney.

3. In accordance with the warrant, a lawyer has the right to perform the procedural actions necessary for representation, with the exception of the actions listed in Article 60 of this Code. The right to commit each of them must be indicated in the power of attorney.

1. 1) One of the most sought-after categories of judicial representatives are lawyers, who are called upon to promote the realization of the human right to judicial protection of one's rights and freedoms, guaranteed by the State and enshrined in the Constitution, and to receive qualified legal assistance (the Law "On Advocacy" (hereinafter referred to as the Law). This is implemented through the participation of a lawyer in civil proceedings, starting from any stage, including from the moment of preparing an application for the client to apply to the court for protection of their violated rights and legally protected interests.There is a lot of discussion in the legal literature regarding the provision that a lawyer helps the court to establish the truth in a case. A lawyer's conscientious attitude to legal assistance provided by him, starting with consultations, his observance of the standards of professional conduct and the preservation of attorney-client privilege are prescribed by Law, which are not always fulfilled. For example, during the consideration of a civil case, the representative of the defendant K. (a lawyer on behalf) admitted a claim for the exclusion of the latter from the LLP due to non-contribution to the authorized capital.

The court granted the claim based on the scope of the representative's powers, including the recognition of the claim set out in the power of attorney. Meanwhile, throughout all previous court sessions, as well as in the objections, defendant K. claimed that he had made a contribution to the authorized capital within 1 year, in accordance with the legislation and constituent documents. The second founder of the LLP has not made any claims against him for making a contribution for more than 5 years. The representative's unfair behavior violated the rights of the defendant, who did not participate in the trial, and subsequently became an obstacle to the restoration of the defendant's rights due to the indication in the power of attorney of the authority to recognize the claim.The CPC also allows for the personal participation of the principal in the process. Such mixed participation, when the issue of recognizing a claim, creating, changing or terminating the rights and obligations of the principal is resolved, the latter's participation in the trial or obtaining confirmation of his will in a separate written statement to the court, taking into account the above example, is appropriate.Judicial practice has known cases when improper representation, as a result of which deadlines were missed, losses were caused, a claim for reimbursement of costs was filed against the representative, or a decision was made to dismiss the claim for compensation. For example, lawyer Sh., who was a representative of the company "P", appealed to the court with a claim to recover from the latter the amount for services rendered and compensation for moral damage, arguing that the latter had failed to comply with the agreement. The court's decision satisfied the requirements in part. The defendant is charged a debt in the amount of 80511611 tenge and court costs. Canceling judicial acts, the supervisory board of the Supreme Court indicated that the agreement concluded between the parties was an assignment agreement and, by virtue of paragraph 1 of Article 847 of the Civil Code, the attorney is obliged to execute the assignment given to him in accordance with the instructions of the principal. As can be seen from the case, lawyer Sh., knowing with certainty that the limitation period had been missed and the amount of damages could not be refunded, deliberately signed the agreement and undertook to prepare the claim materials. When preparing the claim, he incorrectly referred to the norms of the law, no measures were taken to restore the limitation period for filing a claim, and reports on actions taken under the contract were not submitted to the customer. Due to the improper execution of the order, the supervisory board of the Supreme Court refused to collect remuneration._____________________16 NP No. 4gp-105-07, archive of the Supreme Court.

There is a discussion in the legal literature about combining the interests of a court representative and a principal, which allows them to be equated and attributed to the persons involved in the case. This example shows that there is no overlap of interests.The interests of the principal are aimed at protecting their rights and interests, obtaining a positive result for themselves in the case under consideration. The interests of the court representative, although they coincide with the interest in obtaining a positive result of the case, are aimed at performing work that is paid for by the client, and if this is a professional lawyer, then his personal reputation in professional circles is of no less interest to him. Unlike what is presented to the representative, the result of the case review does not create, change, or terminate a substantive legal relationship.

2) The next category of judicial representatives in cases of legal entities is employees of legal entities, as well as state bodies in cases of these state bodies and their territorial divisions. They are mostly people with legal education who work in the relevant legal departments. In the case when a legal entity has a small number of employees, other persons who do not have special education, but who have information on the case under consideration, may be representatives in court, depending on their position. For example, an accountant in cases related to financial transactions, including the subject of the claim, who has knowledge in this field. It is not uncommon for a legal entity to be a non-participant in a case, but when considering any civil cases, the court may invite him as a witness, specialist, etc. as a representative of a legal entity.The liquidation commission acts on behalf of the organization being liquidated, since in accordance with the second part of Article 50 of the Civil Code, from the moment the liquidation commission is appointed, the powers to manage the property and affairs of a legal entity are transferred to it. The liquidation commission acts in court on behalf of the liquidated legal entity.

The liquidation commission may also have a representative in court.In the case of representation of the interests of the organization by its employee, the requirements of the courts for the submission of a document confirming the employment relationship (order, workbook, etc.) are superfluous.3) In cases of workers, employees, as well as other persons whose rights and interests are protected by trade unions, judicial representation is provided by authorized trade unions (hereinafter referred to as trade unions). Such representation is referred to in the legal literature as a type of public representation, but it should be noted that it is rare to use it in civil cases at the present time.Trade union representatives act as representatives in the interests of members of their organizations, as well as other persons whose rights and interests are protected by these organizations. Article 16 of the Law "On Trade Unions", among the rights of trade unions, provides: 1) representation and protection of the rights and interests of its members;

2) filing lawsuits in court to protect the rights and interests of its members, acting in their interests during mediation, in court, labor arbitration or arbitration, in government agencies, providing them with other legal assistance; 4) appealing to the court against acts of government agencies that infringe on the rights and legitimate interests of trade union members; 5) participation in the pre-trial resolution of labor disputes;

6) participation in the resolution of individual and collective labor disputes in accordance with the labor legislation of the Republic of Kazakhstan and the legislation of the Republic of Kazakhstan on mediation.For example, the NGO "A", "M" filed a lawsuit in the interests of trade union members with a statement declaring it contrary to Article 14 of the Law "On the Prevention and Treatment of HIV infections and AIDS" subparagraph 1) paragraph 1 of the Order of the Minister of Health of the Republic of Kazakhstan dated July 19, 2004 No. 541 "On the lists of organizations and the positions of employees who are paid extra for their working conditions" (hereinafter referred to as the order). According to the applicant, the establishment of a list of positions of employees of the centers for the prevention and control of AIDS who are entitled to additional pay for occupational harm is contrary to the provisions of article 14 of the said Law.

According to this rule, all medical workers, employees and technicians of AIDS prevention and control centers are eligible for benefits, including additional pay, and not just those listed in the contested order.The plaintiff's claims were partially satisfied by the court, subparagraph 1) of paragraph 1 of the order was declared invalid from the moment the act was adopted. The decision states that laws establishing human rights and freedoms, with the exception of those listed in paragraph 3 of Article 39 of the Constitution, may be amended in accordance with the established procedure by the legislature. The regulatory legal act adopted by the Ministry of Health, which terminated the payment of additional wages to individual employees of the centers for the prevention and control of AIDS, which they have received for a long time, contradicts the law and is not subject to application. All judicial instances agreed with such conclusions.

The issues of trade union representation are also regulated in the Labor Code in the norms on public control in the field of occupational safety and health.National legislation or regulations, collective agreements, arbitration or court decisions may define a category or categories of workers' representatives who are recognized as having the right to protection and opportunities provided for in Convention No. 135 on the Protection of the Rights of Workers' Representatives in an Enterprise and the Opportunities Provided to Them18. According to the Convention, workers' representatives in an enterprise enjoy effective protection from any action that may prejudice them, including dismissal based on their status or their activities as workers' representatives, or on their membership in a trade union, or on their participation in trade union activities to the extent that they act in accordance with with existing legislation or collective agreements or other jointly agreed terms. In this regard, the specifics of the country's labor relations system and the needs, size and capabilities of the relevant enterprise are taken into account. For the purposes of this Convention, the term "workers' representatives" means persons who are recognized as such in accordance with national legislation or practice, whether: (a) Representatives of trade unions, namely representatives appointed or elected by trade unions or members of such unions.; or (b) Elected representatives, namely representatives freely elected by the workers of the enterprise in accordance with the provisions of national legislation or regulations or collective agreements, and whose functions do not include activities that are recognized as the exclusive prerogative of trade unions in the country concerned.___________________17 Bulletin of the Supreme Court No. 2, 2007. 18 Geneva, June 23, 1971, ratified by the Law of the Republic of Kazakhstan dated December 30, 1999 No. 13-II, the instrument of ratification was registered by the ILO on December 13, 2000 (Source: ILOLEX - 29. 3. 2004).

In the case of judicial representation of this type, the law allows for the possibility of representation of a higher organization of a trade union organization in the interests of a lower one.4) An equally common type of public judicial representation is the representation of the interests of organizations by authorized persons who are granted the right by law, charter or regulation to protect the rights and interests of members of these organizations., as well as the rights and interests of others.By virtue of article 19 of the Law "On Public Associations", public associations acquire rights and assume responsibilities through their governing bodies acting within the powers granted by the charter and the legislation of the Republic of Kazakhstan.In order to achieve their statutory goals, public associations, in accordance with the procedure established by the legislation of the Republic of Kazakhstan, have the right to: represent and defend the rights and legitimate interests of their members in courts and other state bodies, and other public associations. For example, the Union of Judges, the Union of Lawyers, the Consumer Protection Society, and the Society of Composers represent the interests of individuals who are members of these communities. If the principal is against a representative assigned to him by a public organization due to his membership or the statutory tasks of the public organization, such a representative may not be allowed into the process. To perform special actions, public representatives need a power of attorney from the represented person. By virtue of article 22 of the Law "On Consumer Rights Protection", the protection of the rights and legitimate interests of consumers is carried out within the competence of the relevant state bodies, the court and arbitration. Public associations require the protection of consumer rights, and this institution is always in demand in judicial practice.

5) In a number of civil cases, there is a procedural complicity of several persons on the side of the plaintiff or the defendant. In this case, one of the accomplices may act as their representative on behalf of other accomplices. An accomplice represents his interests and protects his rights as a participant in the case, along with representing the interests and protecting the rights of other accomplices. As a result of such representation, procedural savings are achieved for the court due to the absence of the need to summon other accomplices to the court session and the shortening of the trial time. Such representation creates certain favorable conditions for representatives who, for certain reasons, are unable to participate in the process, but due to the coincidence of interests, including due to the legal competence of the representative, grant him such powers with their registration in accordance with the procedure established by law. For example, claims filed by employees for the recovery of wages against one employer due to late payment, in the absence of grounds provided for in subparagraph 6) of Article 135 of the CPC, may be submitted by one person by proxy from all.Representation in writ proceedings on claims for the issuance of a court order for accrued and unpaid wages and other payments to an employee is not necessary. At the same time, judicial representation is possible to process documents and submit them to the court.When considering claims against several defendants, for example, to invalidate a transaction, recover recourse amounts, terminate work contracts, etc. Several persons, both individuals and legal entities, may act on the defendant's side, as well as on the plaintiff's side. The court verifies the presence or absence of contradictions in the objections to the claim between the defendants so that the interests of other defendants are not violated, as well as the limits of the powers set out in the powers of attorney.6) It is allowed to participate in court as representatives of other persons with legal education, at the request of the persons participating in the case.

The issue of their participation as judicial representatives is discussed by the court, taking into account the legal prohibitions established in Article 59 of the CPC on which persons cannot be representatives in court. The request of the person participating in the case may be expressed in an oral statement by the principal to the court if he participates in the court session, or his will to grant powers to the representative is expressed in a power of attorney (see commentary to the fifth part of Article 61 of the CPC).As a rule, these persons are not members of bar associations, otherwise a contract for the provision of legal assistance would have been concluded in accordance with the procedure established by law and the powers would have been formalized. Such representation is essentially a kind of voluntary representation, which can be based on mutual kinship, friendship, and partnership relations. It is assumed that not every participation in the civil process of such a representative entails an appropriate remuneration. Such persons participate mainly in the judicial process along with the represented one.By virtue of Article 156 of the Civil Code, citizens and legal entities are free to conclude a contract. The parties may conclude an agreement, both provided for and not provided for by law. A contract for the provision of representative assistance may become the subject of discussion in court in the event of a claim for reimbursement of court costs, or when resolving the issue of admission to participate in the process as a representative.The commented article does not single out individual entrepreneurs separately, since these are individuals who, in accordance with the requirements of the first part of Article 57 of the CPC, have the right to conduct their cases in court personally or through representatives. The powers of representatives of individual entrepreneurs are issued in the same way as the powers to represent the interests of individuals.

2. The representative's procedural powers are confirmed by a duly executed power of attorney.In accordance with part four of Article 148 of the CPC, a statement of claim is 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.If the statement of claim is not signed by the plaintiff or his representative, or signed by the plaintiff's representative without the attachment of documents confirming the authority, such a statement is returned by the court on the grounds of subparagraph 3) of the first part of Article 152 of the CPC, since a civil case cannot be initiated on an unsigned statement of claim.3. In accordance with the warrant, the lawyer has the right to perform the procedural actions necessary for representation, with the exception of the actions listed in Article 60 of this Code. The right to commit each of them must be indicated in the power of attorney (see the commentary to Article 60 of the CPC).

Additional comment1. This article contains a list of persons who can be representatives on behalf of the court.1) Lawyers, in accordance with article 4 of the Law, providing qualified legal assistance: participate as a representative of the principal in civil proceedings; participate as a representative of the principal in mediation, arbitration, and other dispute resolution bodies; represent the interests of the principal in courts and law enforcement agencies of foreign states, international judicial bodies, non-governmental bodies of foreign states, unless otherwise established by the legislation of foreign states, statutory documents of international judicial bodies and other international organizations or international treaties of the Republic of Kazakhstan; participate as a representative of the principal in enforcement proceedings, and also conduct conciliation procedures. The basis for the representation of interests in court and during the conduct of conciliation procedures by a lawyer is an assignment agreement between the parties.2) Organizations cannot appear in court in person, they act only through representatives, including through managers who act as governing bodies. The procedure for appointing or electing the bodies of a legal entity is determined by law and the constituent documents. A person who, by virtue of the law or the constituent documents of a legal entity, acts on its behalf must act in the interests of the legal entity he represents in good faith and reasonably. In practice, the parallel participation of a body of a legal entity and its representative (an employee of the organization, for example, a legal adviser) in one case is used. The commented provision of the article does not provide for an educational qualification for representation in court.3) This rule is based on the status of the powers of trade union organizations.

By virtue of article 18 of the Law "On Trade Unions", trade unions protect labor, socio-economic rights and interests of a trade union by providing legal and advisory assistance, including when a trade union member enters into an employment contract with an employer, as well as by applying to the court for protection of rights and protected by law.4) Representatives may be authorized organizations that are granted the right by law, charter, or regulation to protect the rights and interests of members of these organizations, as well as the rights and interests of others, for example, professional public associations whose statutory activities provide for the right to protect the interests of their members. Commercial organizations, for example, LLP, do not have the rights to protect and represent the interests of third parties, even if such powers are enshrined in their charters.5) The parties to the case may entrust the conduct of the case (representation of interests) to one of the co-defendants, for example, the plaintiff to one of the co-defendants or the defendant to one of the co-defendants. One of the accomplices, on behalf of the other accomplices, may appear in court (represent the interests of the other) on the basis of an oral statement made by the other participant in court personally and recorded in the minutes of the court session. For example, in the case of a claim by shareholders against a construction company, when an oral statement can be made by all plaintiffs at a court hearing about delegating authority to one of them. This representative may participate only at the stage of the first and appellate instances, this type of representation is not allowed in the cassation instance.6) Other persons with higher legal education may be admitted by the court at the oral request of the person participating in the case, or on the basis of a written power of attorney.

2. By virtue of Article 167 of the Civil Code, a duly executed power of attorney is a written authorization from one person (principal) to represent on his behalf, issued by him to another person (attorney). Since the Civil Code does not require a mandatory notarial form for judicial representation from individuals, such a power of attorney can be issued with the participation of the principal in the process in writing, or by entering it into the minutes of the court session. In all other cases, the power of attorney must be notarized. A power of attorney on behalf of a legal entity is issued under the signature of its head or another person authorized to do so by its constituent documents, and is sealed with the seal of this organization, if this person must have a seal in accordance with the legislation of the Republic of Kazakhstan.

3. In accordance with article 13 of the Law, the powers of a lawyer to conduct a specific case are certified by a warrant issued by a legal consultation or law firm, and when he carries out his activities individually without registering a legal entity, by the presidium of the bar association. By virtue of article 14 of the Law, a lawyer has the right to provide a person who has applied for assistance with any qualified legal assistance that he needs.; acting as a representative, he is competent in accordance with the procedural law.: to protect and represent the rights and interests of persons who have applied for legal assistance in all courts, to request and receive from all government agencies and non-governmental organizations information necessary for the practice of law, to independently collect factual data necessary for the provision of legal assistance, and to provide evidence; to get acquainted with the materials concerning the person who has applied for help, including procedural documents, investigative and court cases; to record the information contained in them in any way not prohibited by legislative acts; to request expert opinions on a contractual basis to clarify issues arising in connection with the provision of legal assistance and requiring special knowledge in the field of science, technology, art and other fields of activity; to file petitions and bring complaints in accordance with the established procedure against the actions of the court, as well as other officials who infringe on the rights and legally protected interests of persons who have applied for help; to conduct conciliation procedures. When exercising professional representation in court, a lawyer must comply with the provisions of the Law.

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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