Judicial practice on court costs in civil cases
This summary was conducted in accordance with the work plan of the Supreme Court for the second half of 2017 in order to study judicial practice on the application by courts of legislation on court costs in civil cases, identify problematic issues in the application of new legislation and proposals for amendments and additions to the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 No. 9 "On the application by the courts of the Republic of Kazakhstan of legislation on court costs in civil cases", as well as the development of proposals for the formation of a uniform application of legislation. The summary was carried out in accordance with the approximate list of issues developed by the Supreme Court and Methodological Recommendations on the organization and conduct of generalizations of judicial practice in civil cases, approved on June 20, 2005, based on the study of civil cases and judicial acts contained in the registration cards of the information system "Torelik", certificates based on the results of generalizations conducted by regional and equivalent authorities. courts, as well as the practice of the Cassation Judicial Board of the Supreme Court. Previously, a similar generalization was carried out in 2005.
Judicial practice on court costs in civil cases
Court costs in civil cases are regulated by the norms of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC); the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget (Tax Code)" (hereinafter referred to as the Tax Code), the Law of the Republic of Kazakhstan dated July 26, 2016 "On Payments and Payment Systems"; regulatory resolutions Supreme Court of the Republic of Kazakhstan: No. 9 dated December 25, 2006 "On the Application by Courts of the Republic of Kazakhstan of Legislation on Court Costs in Civil Cases" (hereinafter – NP); Dated March 20, 2003, No. 2 "On the application by Courts of certain norms of civil procedure legislation"; dated July 11, 2003, No. 5 "On Judicial Decision", dated July 7, 2016, No. 6 "On certain issues of invalidity of transactions and the application by courts of the consequences of their invalidity", as well as other regulatory legal acts of the Republic. The issue of allocation of court costs is one of the most significant in civil proceedings, since it is decided by a judge (court) at each stage of civil proceedings (at the stage of initiation of a civil case, during consideration and resolution of a dispute on the merits) and in each civil case. At the same time, unlike the consideration of the main claims, where the court, facilitating the implementation of the adversarial principle by the parties, manages the process and acts as an arbitrator, the distribution of court costs arising from the application of the norms of civil procedure legislation, are often resolved by the court without any statement from the parties and regardless of their position.
From this point of view, the correctness of the distribution of state fees and court costs indicates the systematic application and interpretation by the judge of the norms of civil procedure and tax legislation and the judge's understanding of the nature of the disputed legal relationship, subject to the establishment of the circumstances of the case, the burden of proof in a particular case in particular. According to Article 102 of the CPC, court costs consist of state fees and costs related to the proceedings. At the same time, the CPC does not provide the concept of court costs, indicating only their composition. In practice, court costs are defined as the costs incurred by the parties to the case and the State in connection with the consideration of the case. The administration of justice requires significant government funding. Part of the costs are covered by the parties to the process. In accordance with Article 103 of the CPC, the procedure for payment and the amount of the state duty, as well as the grounds for exemption from payment, are determined by the Tax Code. Payment of the state fee to the budget must be confirmed by payment or cash documents, and when payments are made via ATMs, electronic terminals, remote communication channels and the e–government payment gateway, they must be confirmed by checks and receipts on paper or in electronic form. Article 108 of the CPC provides for the types of costs associated with the proceedings. Thus, the costs associated with the proceedings include: 1) amounts to be paid to witnesses, experts and specialists; 2) expenses related to on-site inspection; 3) expenses related to the storage of physical evidence; 4) expenses related to the search for the defendant and (or) the child; 5) expenses related to the publication and announcements of the case; 6) expenses related to the notification and subpoena of the parties and other persons involved in the case; 7) expenses related to the travel of the parties and third parties persons and rental of residential premises incurred by them in connection with their appearance in court; 8) expenses for paying for the assistance of a representative; 9) other expenses recognized by the court as reimbursable, including those incurred by the parties in the procedures of mandatory pre-trial dispute settlement upon subsequent appeal to the court. In practice, the norms of the CPC are mainly applied to recover court costs in the form of amounts payable to experts and specialists, travel and rental expenses incurred in connection with court attendance; expenses for paying for the assistance of a representative, postage and other expenses recognized by the court as reimbursable.
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