Implementation of the principles of Legality, Competition and equality of the parties through the Code of Civil Procedure

Article 6. Legality

When considering and resolving civil cases, the court must strictly comply with the requirements of the Constitution of the Republic of Kazakhstan, the constitutional laws of the Republic of Kazakhstan, this Code, and other regulatory legal acts subject to the application of international treaties of the Republic of Kazakhstan.

Comment

This provision implies the strict dependence of the judge on the law, which he bases his decision on. In this case, the judge is not only obliged to explain which norm underlies his decision, but also why, in his opinion, the factual circumstances, as they appear at the end of the court session, fulfill the conditions of the legal norm.

Courts have no right to apply laws and other normative legal acts that infringe on the rights and freedoms of a person and citizen enshrined in the Constitution. If the court finds that a law or other regulatory legal act to be applied infringes on the rights and freedoms of a person and citizen enshrined in the Constitution, it is obliged to suspend the proceedings and apply to the Constitutional Council with a motion declaring this act unconstitutional. Upon receipt by the court of the final decision of the Constitutional Council, the proceedings in the case are resumed.

Comment

The norm defines, firstly, that a judge is obliged, when applying each norm, to check whether it complies with the Constitution. Only if he comes to a positive result should he apply this rule. If the result is negative, he cannot independently declare the norm unconstitutional, he must apply to the Constitutional Council. Only the Constitutional Council has the right to decide on constitutionality. Similar norms exist in all Western countries (verification of a regulatory legal act).

The court, having established, during the consideration and resolution of the case, the inconsistency of an act of a state or other body with the law or its publication with excess of authority, applies the norms of the law.

Comment.

This rule concerns the verification of legal acts of administrative authorities (administrative act in Germany or administrative decision in Kazakhstan) in the framework of administrative proceedings.

In the absence of legal norms governing a disputed legal relationship, the court applies the legal norms governing similar relations, and in the absence of such norms, resolves the dispute based on the general principles and meaning of the legislation of the Republic of Kazakhstan.

Comment

This rule is fundamental to the question of whether courts have the authority to make decisions in the absence of a legal norm. The starting point is that the courts do not have the right to refuse to make a decision, justifying the refusal by the absence of a suitable law. In addition, the norm establishes a procedure under which a decision should be made in this case. In a different way than in English law, which in such a situation gives judges the freedom to decide the case at their discretion, taking into account similar previously resolved situations (precedents), the Kazakh legislator adheres to the principle that in such a case, the judge must first implement the will of the legislator. The method used is the application of norms by analogy in accordance with Article 5 of the Civil Code.

If the law or the agreement of the parties to the dispute provides for the resolution of relevant issues by the court, the court is obliged to resolve these issues based on the criteria of fairness and reasonableness.

Comment

This rule notes criteria such as fairness and reasonableness in decision-making. The crucial point is that this path is open to the courts only when it is permitted by law or by the parties to the process. Unlike English law, in which these criteria can be the basis of a court decision, in Kazakhstan, in accordance with the Constitution, the principle of the court's dependence on the law applies. The parties to the process may deviate only from the dispositive norms, but not from the mandatory ones. Thus, if we talk about the criteria of fairness and reasonableness, we are talking more about general criteria that should be taken into account when interpreting laws and legal transactions.

Article 15. Competitiveness and equality of the parties

Civil proceedings are conducted on the basis of competition and equality of the parties. The parties involved in the civil procedure are endowed by this Code with equal opportunities to defend their position.

In the course of civil proceedings, the parties choose their position, ways and means of defending it independently and independently of the court and other persons involved in the case.

Comment

These provisions establish the principle of dispositivity in the civil procedure of Kazakhstan. This principle is a consequence of private autonomy and means that only the parties to the process themselves decide what is the subject of the trial; on the basis of which factual circumstances the dispute will be resolved; in relation to which issues the evidence should be examined, which evidence should be used in the process.

This implies a general principle according to which the parties to the process can and should influence the course of the trial. They are responsible for convincing the judge that all the factual circumstances are available for the judge to recognize their right in what they requested in the statement of claim. In this regard, this provision is a limitation of the provision according to which the court's task is to protect the rights and legally protected interests. In principle, the parties themselves must defend their rights. The plaintiff determines the subject of the process. It follows from this that the court is bound by claims and has no right to award anything more than that, or anything else. There are also special rules for rejecting a claim or for changing a claim.

In addition, it follows from this provision that the parties determine on what factual basis the decision will be made. However, it follows that the parties decide whether the factual circumstances are controversial or not. The defendant may, by agreeing with the plaintiff's statement, make the factual circumstance indisputable. In this case, the court is bound by the positions of the parties.

The court is completely exempt from collecting evidence on its own initiative in order to establish the factual circumstances of the case, however, upon a reasoned request from the party, it assists her in obtaining the necessary materials in accordance with the procedure provided for by this Code.

Comment

This provision makes it clear that the task of the parties is to present relevant evidence (the so-called adversarial principle). The consequence is that the party who is unable to provide evidence, although it has the burden of proof, will lose the trial.

The court, while maintaining objectivity and impartiality, manages the process and creates the necessary conditions for the parties to exercise their procedural rights to a full and objective investigation of the circumstances of the case. The court explains to the persons participating in the case their rights and obligations, warns of the consequences of the commission or non-commission of procedural actions and, in the cases provided for by this Code, assists them in the exercise of their rights. The court bases the decision only on those evidences, the participation in the study of which was provided on an equal basis by each of the parties.

Comment

This provision is an exception to the principle described above. It empowers the judge to conduct the trial while maintaining objectivity and impartiality. As in substantive law, procedural law proceeds from the fact that two equally strong parties are opposed to each other. In this case, the judge can rely heavily on the parties to make the right demands and provide the necessary evidence when conducting the trial. However, it may happen that unequal parties will oppose each other in the process, in particular if one side is represented by a lawyer and the other is not. In such a case, the judge is obliged, in order to comply with the principle of equality in the conduct of the process, to pay attention to the fact that the weak side also makes the necessary demands and presents the necessary evidence.

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