Lawyer in cases of marriage and family if the court considers the case without his participation without properly informing one of the parties involved in the case about the time and place of the court session, the appeal is subject to cancellation of the court decision, regardless of the arguments of protest
A. filed a lawsuit in court, in which the defendant stated that he entered into a legal marriage with S. on June 17, 2003, they did not live together due to the lack of character and frequent quarrels, did not mind leaving two children with the defendant, and asked to terminate the marriage without a conciliation period. By the decision of the Al-Farabi District Court of Shymkent dated October 31, 2011, A.'s claim was satisfied. The marriage between the parties was dissolved, and two minor children were left to be raised by their mother S. The case was not considered in the appellate and Cassation courts. S. in his application to the supervisory board, he indicates that he did not attend the court session, did not receive a subpoena from the court stating that the divorce case is under consideration, opposes the dissolution of the marriage, and asks to cancel the court decision and dismiss the claim of A. In addition, he asked to restore the deadline for filing an application for a judicial act. The supervisory judicial board considers that S. has grounds to restore the deadline for submitting an application for a challenged Court decision, since the specified period was missed for good reason. The supervisory judicial board heard the understanding of the defendant S. in the case in support of the application, the prosecutor's conclusion that the judicial act was canceled and the case is subject to review, checked the case documents and canceled the disputed judicial act on the following grounds.
Lawyer in cases of marriage and family if the court considers the case without his participation without properly informing one of the parties involved in the case about the time and place of the court session, the appeal is subject to cancellation of the court decision, regardless of the arguments of protest
In accordance with Part 3 of Article 387 of the code of Civil Procedure of the Republic of Kazakhstan (hereinafter referred to as the code of Civil Procedure), a significant violation of material norms or procedural law is the basis for reviewing decisions, rulings, decisions of the court that have entered into legal force in the order of supervision. When considering this civil case, the court of first instance did not comply with the requirements of the current material and procedural laws of the Republic of Kazakhstan. In accordance with Paragraph 22 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated April 28, 2000 No. 5" on the application of the law by courts in the consideration of cases of divorce", the court's decision on the dissolution of marriage (divorce), as well as the decision on the refusal of divorce, must be legal and based on According to Article 22 of the code of the Republic of Kazakhstan" on marriage (matrimony) and family", in case of dissolution of marriage (matrimony) in court, spouses may submit for consideration to the court an agreement on who their minor children live with, on the procedure for paying funds for the maintenance of children and (or) an incapacitated spouse in need, on the amount of these funds, or on the division of common property of spouses. After the dissolution of the marriage (matrimony), the spouses decide to choose their surname during the state registration of the dissolution of the marriage (matrimony). If there is no agreement between the spouses on the issues specified in Paragraph 1 of this article, as well as if it is established that the agreement violates the interests of children or one of the spouses, the court shall: determine with which parents of minor children will live after the dissolution of marriage (matrimony); determine which parents and in what amount will pay alimony for the maintenance of children; at the request of the spouses, taking into account the interests of minor children and (or) the spouses themselves, divide the property in their joint common ownership; at the request of the second spouse, who has the right to receive funds from the spouse, determine the amount of these funds. However, the court made a unilateral decision without fulfilling the requirements of the specified law, without fully, objectively establishing the circumstances affecting the adoption of a legal and reasonable decision.
Defendant S. did not attend the court session and did not receive notification of the date of the court session. According to the documents collected in the case, the defendant, due to a disagreement with the plaintiff, in 2011 left with his two teenage children to the House of his parents living in the Republic of Uzbekistan. The notice of invitation to the court session, held on October 31, 2011, was sent by the court only to the address of the plaintiff. In accordance with the requirements of Part 1 of Article 366 of the code of criminal procedure, if the court considers the case without informing the time and place of the court session, in the absence of one of the persons participating in the case, the decision of the court of first instance, regardless of the arguments of complaint, protest, is subject to cancellation. in the resolution part of the decision of the sitting court, the payment of the corresponding fee was collected by the court from a citizen not related to the case named B. This circumstance will serve as evidence that the court distorted the requirements of the law during the consideration of the case. In such a context of the case, the court decision made in this case cannot be recognized as legitimate and justified. Therefore, it is subject to cancellation, and the case is referred to the court for reconsideration. When reviewing the case, the court must eliminate the listed shortcomings, thoroughly check the motives of the parties, evaluate the evidence collected in the case from the point of view of the law, and make a legal and reasonable decision.
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