Disputes related to the recognition of the loan agreement terminated
According to part 3 of Article 455 of the CPC, the new circumstances include the cancellation of a judicial act that was of prejudicial importance in the consideration and resolution of the case, and the court's decision to invalidate the transaction on the basis of which the judicial act was issued. U. sued P. for recognition of the loan agreement terminated. P. presented counterclaims requirements for U. to invalidate the act of acceptance and transfer of cash. By the decision of the Almaty District Court of Astana dated February 2, 2018, the claim of U. partially satisfied with the recognition of the loan agreement as terminated. The obligations under the loan agreement dated December 13, 2014, concluded between P. and U. P. have been recognized as terminated. P. is charged with the obligation to return the original loan agreement dated December 13, 2014. P.'s counterclaim for invalidation of the cash acceptance and transfer act dated May 10, 2016 was refused. P. applied to the court for a review of the said decision of the Almaty District Court of Astana city due to newly discovered circumstances. He pointed out that the court granted the claim on the basis of two expert opinions: No. 1578 dated July 4, 2017 and No. 3342 dated January 15, 2018, from which it follows that the signature on behalf of P. in the act of acceptance and transfer was made by himself and applied after printing the printed text. At the same time, according to the conclusion dated September 20, 2019 and the response of the RSE "Center for Forensic Examinations of the Ministry of Justice of the Republic of Kazakhstan" dated March 19, 2020, during the examination, the requirements of Articles 6, 10 of the Law of the Republic of Kazakhstan "On Forensic Expertise", paragraph 55 of the Rules for the Organization and Conduct of Forensic examinations and Research were violated. in the judicial examination body.
Disputes related to the recognition of the loan agreement terminated
The stages of the study required by the methods with the relevant features for the approval of the conclusion in a probable form, the methodology used by him, as well as the method of establishing the prescription of strokes are not indicated. By the ruling of the Almaty District Court of Nur-Sultan dated July 17, 2020, the decision of the Almaty District Court of Astana dated February 2, 2018 was canceled due to newly discovered circumstances. By the ruling of the Judicial Board for Civil cases of the Nur-Sultan City Court dated August 5, 2020, the ruling of the court of first instance remained unchanged. By the decision of the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan dated October 21, 2020, in connection with the death of defendant P., the petition of the representative of U. – B. for a review of the above-mentioned court rulings was left without consideration until the establishment of succession. Currently, there are no circumstances preventing the consideration of the application. The Judicial Board for Civil Cases of the Supreme Court restored to the representative of U. – B. the missed procedural deadline for appealing judicial acts in cassation and annulled judicial acts of local courts. P.'s application for the cancellation, due to newly discovered circumstances, of the decision of the first instance in the civil case on the claim of U. to P. for the recognition of the loan agreement terminated, the counterclaim of P. to U. for the invalidation of the act of acceptance and transfer of cash funds was left without satisfaction on the following grounds. According to Part 2 of Article 126 of the Civil Procedure Code (hereinafter referred to as the CPC), the deadlines set by the CPC may be restored by the court if they are missed for reasons recognized by the court as valid. In this case, due to the circumstances mentioned above, the missed due process period is subject to restoration.
In accordance with the fifth part of Article 438 of the CPC, the grounds for the cassation review of judicial acts that have entered into force are significant violations of substantive and procedural law, which led to the issuance of an illegal judicial act. Such violations were committed by the courts. The author of the petition pointed out that according to paragraphs 1, 5 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 8, 2017 No. 12 "On the application by courts of the norms of the CPC when reviewing judicial acts on newly discovered or new circumstances", part 1 of Article 455 of the CPC is not an independent basis for reviewing judicial acts that have entered into force on newly discovered or new circumstances. The grounds for revision are listed in Parts 2 and 3 of Article 455 of the CPC, they are exhaustive and cannot be interpreted broadly. In the applicant's opinion, similar arguments indicated in the application for the annulment of judicial acts due to newly discovered circumstances had previously been set out in the appeal against the court decision, which were the subject of consideration by the court of appeal, and therefore these arguments could not be re-examined. In addition, after receiving the expert opinion, P. did not challenge it, which is a procedural omission. The court's verdict, which has entered into legal force, has not been presented to the court, which established the falsification of the expert's opinion, which led to the issuance of an illegal and unjustified judicial act. P. filed a complaint with the State Institution "Police Department of Almaty district" against expert T., but the initiation of criminal proceedings was refused. The arguments given are well-founded. According to Part 2 of Article 455 of the CPC, the grounds for reviewing decisions, rulings and resolutions on newly discovered circumstances are: 1) knowingly false testimony of a witness, knowingly false expert opinion, knowingly incorrect translation, forgery of documents or material evidence, established by a verdict that has entered into legal force, court order, resolutions of state bodies and officials performing the functions of criminal prosecution, which led to the decision of an illegal or unjustified decision;
Disputes related to the recognition of the loan agreement terminated
2) a criminal offense of the parties, other persons participating in the case, or their representatives, or a criminal offense of judges committed during the consideration of the case, established by a verdict, court order, resolutions of state bodies and officials performing the functions of criminal prosecution; 3) cancellation of the decision, verdict, ruling or court order or a resolution of another state body that served as the basis for making this decision, ruling or resolution. It follows from part 3 of the same article that the new circumstances include, in particular, the cancellation of a judicial act that was of prejudicial importance in the consideration and resolution of the case, and the entry into force of a court decision invalidating the transaction on the basis of which the judicial act was issued. The grounds specified in parts 2 and 3 of Article 455 of the CPC for reviewing a judicial act based on newly discovered or new circumstances are exhaustive.
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