Comments to Article 98. Disposal of material evidence of the Civil Procedure Code of the Republic of Kazakhstan
1. Material evidence, except as provided for in the first part of Article 97 of this Code, after the entry into force of a court decision, shall be returned to the persons from whom they were obtained, or transferred to persons for whom the court recognized the right to these items, or implemented in accordance with the procedure determined by the court.
2. Items that cannot legally be in the possession of citizens are transferred to the relevant organizations.
3. Material evidence, after its inspection and examination by the court, may be returned to the persons from whom it was received before the end of the proceedings, if the latter request it and the satisfaction of such request will not interfere with the proper resolution of the case.
4. The court issues a ruling on the disposal of material evidence that is subject to rapid deterioration, which is not subject to appeal or protest.
1. The first part of this article establishes the general rules for the disposal of physical evidence.First, the fate of the physical evidence is resolved after the court's decision comes into force. The court's decision comes into effect after the expiration of the time limit established by law for appealing or challenging the court's decision or after the announcement of the judicial act by the court of appeal, in this regard, the court of appeal has the opportunity, if necessary, to directly examine the material evidence.Upon completion of the case without a court decision, that is, upon termination of the proceedings or abandonment of the claim without consideration, the court also decides the fate of the material evidence in the case.Secondly, physical evidence is returned to the persons from whom it was obtained., since it is assumed, until it is refuted in accordance with the established procedure, that the person who presented the physical evidence is its rightful owner.If the material evidence is at the same time the subject of a dispute, during the resolution of which the court established any rights (ownership, economic management, operational management, etc.) to them for another person involved in the case (upon satisfaction of a vindication claim, invalidation of the transaction, etc.), the said material evidence is transferred to the persons, for whom the court recognized the right to these items.Material evidence may also be transferred to another person based on the results of dispute resolution, which seeks compensation for damage and the cost of goods in favor of the plaintiff, and in favor of the defendant, the court awards the transfer of material evidence (for example, a damaged object (thing) or goods of inadequate quality). For example, the court, applying paragraph 1 of Article 455 of the Civil Code on the rights of the buyer in case of sale of goods of inadequate quality to the dispute, indicates in the decision that the goods about which the dispute arose and which is material evidence in the case, will be transferred from the plaintiff to the defendant.The material evidence that is the subject of the dispute may be sold in accordance with the procedure determined by the court, if they are not awarded in kind by any of the parties to the dispute. This rule applies to cases of division of shared-ownership property and allocation of shares from it. When applying paragraph 6 of Article 218 of the CPC by the court, the court indicates in the decision the sale of property at public auction, followed by the distribution of the proceeds between the participants in the common ownership in proportion to their shares.A special rule applies to evidence that is subject to rapid deterioration, which, after inspection, is immediately returned to the person who submitted it for inspection in accordance with the first part of Article 97 of the CPC.
2. Part two of this article provides for the disposal of items that, by law, cannot be in the possession of citizens.This rule applies to things whose alienation is not allowed (things that have been withdrawn from circulation) and things that can belong only to certain participants in the turnover or whose acquisition or alienation is allowed by special permission (things that are of limited turnover).According to paragraph 2 of Article 116 of the Civil Code, the types of things whose alienation is not allowed (things withdrawn from circulation) must be explicitly specified in legislative acts. According to paragraph 3 of Article 116 of the Civil Code, the types of things that can belong only to certain participants in the turnover or the acquisition or alienation of which is allowed by special permission (things with limited turnover) are determined by law. In the legal literature, public buildings and buildings are indicated as things withdrawn from circulation; temples and other public places of worship; artistic, historical and archaeological monuments; movable property, irreplaceable in nature (documents, manuscripts, publications, maps; objects of national art; archives, museum exhibits, art and scientific collections of scientific and cultural value; human organs; some powerful sources of unproductive pleasure (heroin, morphine and other narcotic drugs). With regard to the legislation of the Republic of Kazakhstan, it is indicated that a limited number of things have been withdrawn from civil circulation - natural resources, state awards, as well as things whose existence is prohibited by law (for example, counterfeit banknotes)
49___________________49 Scriabin S. The right of ownership in the Republic of Kazakhstan. 2000. Chapter 4, section 2.2 //http://bibliotekar.kz/pravo-sobstvennosti-v-respublike-kazahst/2-2-veschi-nahodjaschiesja-v grazhdansko.html
Some legislative acts provide for certain categories of items that have been withdrawn from civil circulation or restricted in it. These include, for example, cultural property, the list of which is provided for in article 32 of the Law on Culture. These items, which by law cannot be in the possession of citizens, are transferred to the relevant organizations. The relevant organizations are government agencies or government organizations whose competence includes the storage, sale or destruction of items that are things that have been withdrawn from circulation or are of limited turnover. If the material evidence is transferred for sale, the proceeds from the sale are transferred to the owner of the material evidence, which must be indicated in the court ruling.
3. Part three of this article provides for the procedure and grounds for disposing of material evidence before the end of the proceedings.The law establishes a set of conditions for the return of physical evidence before the end of the proceedings.Firstly, the physical evidence must be examined and examined in accordance with the procedure established by parts two and three of Article 96 of the CPC.Secondly, the person from whom the physical evidence was obtained, must petition the court for the return of the material evidence to him before the court's decision enters into force.Thirdly, the return of physical evidence should not prevent the proper resolution of the case. There are no obstacles to the proper resolution of the case if the material evidence has been examined and examined by the court with the participation of the persons involved in the case; the results of the inspection and examination of the material evidence are duly recorded in the protocol of a separate procedural action or the protocol of the court session.; the issues and disagreements that arose during the examination and examination of evidence have been resolved; there is no dispute about the evidentiary value of the physical evidence in relation to the fact for which the physical evidence was presented.
4. The disposal of material evidence that is subject to rapid deterioration is a procedural action that is formalized by a court ruling. The court's ruling must comply with the requirements established by Article 269 of the CPC. The law does not provide for a time limit for issuing a court ruling, however, based on the specifics of material evidence that is subject to rapid deterioration and the focus of the law on the expeditious conduct of procedural actions in relation to such evidence, it should be concluded that the court should issue a ruling on the return of material evidence immediately, as far as possible.A court ruling is issued without notifying the persons involved in the case and holding a court session. This court ruling is not subject to appeal or challenge.The court issues a ruling on the fate of other material evidence in the same manner, indicating the person to whom the material evidence is returned or transferred, unless the court has resolved this issue in a court decision (see the commentary to the first part of this article).
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
