Comments to article 73. Presentation of evidence of the Civil Procedure Code of the Republic of Kazakhstan
1. Evidence shall be presented by the parties and other persons participating in the case to the court of first instance at the stage of preparing the case for trial.
Evidence may be presented at the trial stage if the impossibility of presenting it at the stage of preparing the case for trial is justified by the persons who presented it.In the case provided for in the second part of Article 404 of this Code, evidence may be submitted to the court of appeal.Failure to provide the evidence available to the parties to the court precludes the possibility of presenting this evidence to the court of appeal and cassation instances.
2. The circumstances relevant to the proper resolution of the case shall be determined by the court on the basis of the claims and objections of the parties and other persons participating in the case, taking into account the applicable rules of substantive and procedural law. A person has the right to refer only to the evidence that was disclosed during the preparation of the case for trial or during the trial, in the cases established by the first part of this article.
3. The court has the right to invite the parties and other persons involved in the case to provide additional evidence necessary for the proper resolution of the case.
4. If it is difficult for the parties and other persons participating in the case to present evidence, the court of first instance, at their request, shall assist them in obtaining evidence. A request for assistance in obtaining the evidence required by the party, which is not satisfied by the court of first instance, may be filed before the court of appeal in an appeal or court session.
5. An application for assistance in obtaining evidence must specify the evidence, as well as what circumstances relevant to the case can be established or refuted by this evidence, the reasons preventing independent obtaining of evidence, and its location.
6. If necessary, the court issues a request to the person participating in the case to obtain evidence. The person who holds the evidence required by the court sends it directly to the court or hands it over to the person who has the relevant court request to present the evidence to the court. Evidence on corporate disputes should be requested only by the court and sent directly to the court.
7. If the court fails to inform the court of the reasons for the failure to provide the requested evidence, as well as the failure to provide evidence within the time limit set by the court for reasons deemed disrespectful by the court, the guilty officials or other persons not participating in the case are subject to administrative penalties in accordance with the Code of the Republic of Kazakhstan on Administrative Offenses according to the rules established by Chapter 9 of this Code.
8. The imposition of an administrative penalty does not release the person in possession of the evidence demanded by the court from the obligation to present it to the court. In case of malicious non-fulfillment of the court's requirement, these persons are criminally liable.
9. If a party retains the evidence required by the court and does not submit it at the request of the court within the time limit set by the court, it is assumed that the information contained therein is directed against the interests of that party and is considered recognized by it.
10. The parties to the arbitration proceedings, with the consent of the arbitral tribunal, may apply to the court with a request for assistance in obtaining evidence, which is considered in accordance with paragraph one of part four of this article.This article regulates the procedure for the presentation of persons participating in the case as subjects of evidence in court.
1. Part one of this article establishes an important rule on the need to present evidence to the court of first instance at the stage of preparing the case for trial. The impossibility of presenting evidence at the stage of preparation of the case must be justified by the persons who presented it. This rule creates the conditions for proper preparation of the case by the judge, who has the opportunity to determine the subject of evidence for the trial.; It helps to speed up the judicial process, reduces the reasons for postponing the trial, prevents it from being delayed under the pretext of additional evidence by the parties; disciplines the persons involved in the case, motivates them to actively and timely protect their rights and interests. In general, the importance of preparing a case for trial has been increased as a stage of judicial evidence, in which the emphasis is on collecting and presenting evidence, while in court proceedings, evidence is examined and evaluated to a greater extent.
1.1. In order to comply with this rule, the court has been granted certain powers, and the persons involved in the case have been assigned certain procedural duties related to the presentation of evidence (subparagraph 5) of the second part of Article 148, subparagraph 6) of the first part of Article 149, paragraph one of Article 153, subparagraph 3) of the fourth part of Article 166, subparagraphs 1), 3), 4), 9)-13), 15) Articles 165, part one of Article 169 of the CPC, etc.).
1.2. The presentation of evidence at the next stage of the trial is due to the impossibility of presenting it during the preparation of the case. When presenting evidence, the person involved in the case must indicate the reasons why this evidence was not presented earlier.If the court finds that the impossibility of timely presentation of evidence is not justified, it refuses to grant the request for examination of evidence at the stage of the trial.
1.3. If the defendant, duly notified by the court of the need to submit a response to the claim, and then about the time and place of the preliminary court session and the court session, did not appear in court, did not inform the court of the reasons for non-attendance at the court session and did not provide evidence of the validity of these reasons (part one of Article 196 of the CPC), or the court recognized the reasons for non-appearance as disrespectful (part four of Article 196 of the CPC), or the defendant in writing asked the court to consider the case in his absence (part six of Article 196 of the CPC), the court considers the case on the basis of the evidence available in the case, presented by the plaintiff and other persons involved in the case. Failure by the defendant to present the evidence available to him to the court is his procedural omission.
1.4. Evidence may be presented to the court of appeal only as an exception and on the grounds established by part two of Article 404 of the CPC, which must be indicated in the petition of the person participating in the case for the examination of evidence.
1.5. If the parties had evidence, but for some reason were not presented during the preparation of the case, the party is deprived of the opportunity to present this evidence to a higher court, which refuses the request to examine such evidence.
2. In order to determine the range of circumstances relevant to the case, the judge analyzes the statement of claim, the response to the statement of claim, the explanations of the parties and other persons involved in the case. Statements about the actual circumstances of the dispute are highlighted and compared from the information received, and indisputable and controversial facts are determined.The range of circumstances determined in this way makes it possible to carry out a preliminary legal qualification, to select a rule of substantive law, in the hypothesis of which the conditions corresponding to the actual circumstances of the dispute are indicated. Comparing the factual circumstances of the dispute indicated by the parties and the hypothesis of the relevant factual situation of the substantive law, the judge determines which other factual circumstances indicated as conditions for the application of the law are relevant to the case and need to be established, although the parties did not indicate them due to legal ignorance or for other reasons.The rules of procedural law make it possible to clarify the issues of the correct definition of jurisdiction, the need to comply with the pre-trial dispute settlement procedure established by law or contract, etc. For example, a statement of claim has been accepted for trial by a court of general jurisdiction, since, according to the statement of claim, the defendant is a citizen. In the response to the statement of claim, the defendant indicated his status as an individual entrepreneur, and therefore, this dispute is under the jurisdiction of the specialized interdistrict economic court. In support of their statements about the facts, the persons involved in the case must provide evidence. The person who refers to the evidence must disclose it at the stage of preparing the case. Based on the requirements established by law for the content of a statement of claim, a response to a statement of claim and the content of evidence, it should be considered that a person has disclosed evidence if the person participating in the case has indicated this evidence and justified that this evidence confirms the statement he has made about a fact relevant to the case, or refutes what was reported by another participant in the case a person's statement of a fact relevant to the case (Article 63, subparagraph 5) of the second part of Article 148, subparagraph 3) of the fourth part of Article 166 of the CPC). The disclosure of evidence after the completion of the preparation of the case for trial is permissible as an exception to the general rule only on the grounds provided for in the first part of this article.
3. The evidence presented by the parties to the case may not be sufficient to confirm any facts. This may be due to the presentation of evidence that does not meet the requirements of relevance, admissibility, reliability, or only indirect evidence is presented to confirm the fact.For example, indirect evidence will be testimony that the defendant in the paternity case took care of the child's mother during her pregnancy. This evidence is not sufficient to establish the fact of paternity, since the fact of caring for the child's mother may indicate not only paternity, but also the existence of friendly relations between the plaintiff and the defendant, the defendant's care, etc. In this case, the court has the right to invite the parties to the case to provide additional evidence. The phrase "the court has the right" used in the law does not mean the possibility of judicial discretion in resolving this issue (the court may or may not propose), but the legal authority of the court, by virtue of the principle of competition (part three of Article 15 of the CPC), to inform the parties to the case about their procedural right to provide additional evidence (part two of the article 15, part one of Article 46 of the CPC) and the burden of proof on them (part one of Article 72 of the CPC). The court has no right to oblige to provide additional evidence. When offering to provide additional evidence, the court does not have the right to indicate which evidence is necessary, since the party is independent in choosing the ways and means of defending its position (part two of Article 15 of the CPC).
4. Part four of this article specifies the role of the court, defined by the principle of competition, in the process of collecting evidence by assisting the party in obtaining the necessary materials (part three of Article 15 of the CPC).Such assistance is provided by the court of first instance in accordance with the rule on disclosure of evidence at the stage of preparing a case for trial (part one of Article 73 of the CPC). Court assistance is provided only if the presentation of evidence is difficult for the parties and other persons involved in the case (see: commentary to part five of this article). A person participating in the case submits a petition for the court's assistance in obtaining evidence.A request for assistance in obtaining evidence may be filed by the persons involved in the case before the court of appeal only if it was filed by these persons in the court of first instance and the request was refused. This rule is repeatedly provided for in the norms of the CPC governing the content of appeals and protests, the limits of appeal and the procedure for the court of appeal to resolve petitions of persons participating in the case (part two of Article 404, part two of Article 413, part two of Article 419 CPC).
5. Part five of this article sets out the requirements for the content of a request for assistance in obtaining evidence. The application must include specific evidence. From the list of evidence listed in the second part of Article 63 of the CPC, material evidence; protocols of procedural actions; minutes of court sessions; audio, video recordings, data obtained through the use of videoconferencing systems reflecting the course and results of procedural actions are subject to demand.; as well as written evidence (Article 100 of the CPC) and other sources of evidence. The petition must substantiate which factual circumstances relevant to the case can be established or refuted by this evidence. Since assistance in obtaining evidence is provided only if it is difficult to present it independently, the petition must justify what this difficulty is. For example, in a request to request a certificate of an employee's salary from the defendant, it may be indicated that the plaintiff was refused to issue such a certificate, or he was given a certificate that did not meet the established requirements, on the basis of which it is impossible to calculate the average salary and, accordingly, specify the amount of claims for collecting wages during forced absenteeism. Some materials and documents (for example, a registration file for a real estate object, a register of notarial acts, etc.) are not issued to the persons involved in the case, but are provided only at the request of the court. Evidence is required from persons participating in the case, or from other persons not participating in the case who have evidence. The location of the evidence should be understood as the indication of the person (natural or legal) who holds the evidence and the address of this person.
6. A request for evidence may be sent by the court directly to the addressee indicated in the petition with a request to submit specific evidence to the court. A request for evidence may be issued to a person involved in the case who requested assistance ("on hand"), the court's request for evidence should specify the method of delivering evidence to the court: sending it directly to the court or issuing evidence to a person who has a corresponding court request. The person who holds the evidence requested by the court issues the evidence in accordance with the instructions in the request. If the request does not specify the method of delivery of the evidence, the person who holds the requested evidence will send it directly to the court.The request also specifies the deadline by which the evidence should be submitted (as a rule, by the date of the preliminary court session or the scheduled court session, or by another date).Evidence on corporate disputes, the list of which is established by the first part of Article 27 of the CPC, is claimed only by the court and sent directly to the court, which must be indicated in the court request.
7. A court request to obtain evidence is mandatory and must be executed throughout the territory of the Republic of Kazakhstan (part two of Article 21 of the CPC). It follows from the meaning of Article 21 of the CPC that failure to comply with such a request is nothing more than a manifestation of contempt of court, entailing liability provided for by law.In part seven of this article, it is specified that the person who has the required evidence is responsible for not submitting the evidence to the court and not informing about the reasons for such non-presentation. For the occurrence of administrative responsibility in accordance with the first part of Article 653 of the Administrative Code, it is sufficient that the court does not inform the court about the reasons for the failure to provide the requested evidence, even if the reasons for the failure to provide evidence are valid (lost, transferred to other persons, etc.). Administrative responsibility also comes for the late presentation of evidence for disrespectful reasons, as this leads to a delay in the trial.Responsibility under the first part of Article 653 of the Administrative Code is borne only by officials or other persons who are not involved in the case. The negative procedural consequences of failure to provide the evidence required by the court for the persons participating in the case are provided for in part nine of this article.The procedure for bringing perpetrators to administrative responsibility is provided for in parts four and five of Article 120 of the CPC and the relevant provisions of the Administrative Code.
8. In order to ensure the rights of the persons participating in the case to a full and objective investigation of the circumstances of the case (part four of Article 15 of the CPC), the rule has been established that it is mandatory for the person who holds this evidence to submit the evidence requested by the court even after the imposition of an administrative penalty.
9. The evidence required by the court may be held by a person participating in the case. Failure to provide the required evidence to the court within the prescribed period violates the interests of other persons, entails a deliberate delay in the consideration and resolution of the case, prevents the court from establishing the actual circumstances of the case, which is a violation of the procedural obligations of the person involved in the case (parts one and two of Article 46 of the CPC). Failure to fulfill the specified procedural obligation entails the occurrence of procedural consequences - the presumption begins to operate that the information contained in the evidence is directed against the interests of this party and is considered recognized by it. These procedural consequences occur by virtue of a direct indication of the law, and do not depend on the discretion of the court (imperative presumption).
10. The commented norm provides for the procedure for exercising the right of a party to arbitration proceedings to apply to a competent court with a request for assistance in obtaining evidence. Such a request is submitted in the form of a petition, the content of which must comply with the requirements of part five of this article. The petition is considered in accordance with the procedure established by part four of this article. The parties to the arbitration proceedings, with the consent of the arbitral tribunal, may apply to the court at the location of the evidence with a request for assistance in obtaining evidence, which is considered in accordance with paragraph one of part four of this article.The judge alone, on behalf of the court, issues a ruling on the satisfaction of the petition and the demand for appropriate evidence based on the received material., or refusal to satisfy the request due to its non-compliance with the established requirements (lack of justification or consent of the arbitration court to provide assistance, etc.).The ruling on the satisfaction of the petition indicates the person who requested assistance; the arbitration court that agreed to provide assistance; the case in which the evidence is being sought and the requested evidence itself; the arbitration court to which the evidence should be sent or the person to whom the evidence should be provided; the deadline by which the evidence should be submitted; the obligation of the arbitration court to dispose of material and written evidence in accordance with Articles 98, 101 of the CPC (analogy of the law).A copy of the ruling is sent to the arbitration court, to the person who filed the petition and to the person who has the required evidence.The ruling on the refusal to satisfy the petition is not subject to appeal or appeal. A person who has been denied a request has the right to reapply, eliminating the shortcomings that served as the basis for the refusal.
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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