On the application by courts of the norms of the Civil Procedure Code of the Republic of Kazakhstan when reviewing judicial acts on newly discovered or new circumstances

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 8, 2017 No. 12.

 

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     For the purposes of uniform application of the norms of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), when reviewing judicial acts that have entered into force due to newly discovered or new circumstances, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to provide the following clarifications.

Decisions, rulings, and resolutions that have entered into legal force may be reviewed by the court that issued them, based on newly discovered or new circumstances.

    The grounds for review are legal facts that are essential for the proper resolution of a previously considered case, which arose or took place, but became known after the entry into force of the judicial act.

    Such legal facts, which entail the pronouncement of a judicial act that is different in content, are considered to be of significant importance.

     Courts should keep in mind that the first part of Article 455 of the CPC is not an independent basis for reviewing judicial acts that have entered into force due to newly discovered or new circumstances. The grounds for revision are listed in parts two and three of Article 455 of the CPC, they are exhaustive and cannot be interpreted broadly.

    Failure by a party to provide evidence in support of the stated claim or objections to it, or failure by a party to submit to the court a request for assistance in obtaining evidence held by the other party or third parties, indicates procedural omissions by the person involved in the case. Such procedural omissions, as well as the presentation of new evidence, may not be grounds for reviewing a judicial act that has entered into force due to newly discovered or new circumstances.

According to newly discovered or new circumstances, decisions of the court of first instance that have entered into force may be reviewed, including decisions rendered in absentia or simplified (written) proceedings, decisions of the appellate and cassation instances that amended or overturned the decision, the decision of a lower instance with the issuance of a new procedural decision in the case.

    According to newly discovered or new circumstances, court rulings on termination of proceedings in the case may be reviewed, as well as court rulings based on the results of consideration of an application for annulment of an arbitral award and an application for enforcement of an arbitral award.

    Other acts of the court of first instance that do not resolve the case on the merits (for example, a ruling on the refusal to accept a statement of claim, a ruling on the return of a statement of claim, a ruling on the restoration or refusal to restore the procedural period, a ruling on the clarification of a court decision, a private ruling) are not subject to revision due to newly discovered or new circumstances.

    The footnote. Paragraph 2 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).

In accordance with the first part of Article 455 of the CPC, the judicial act as a whole is subject to revision due to newly discovered circumstances or new circumstances.

    An application for review of a judicial act in any particular part of it (for example, for review of a judicial act on a counterclaim, on one or more claims combined into one proceeding) is subject to return.

    A judicial act that has not entered into legal force is not subject to review due to newly discovered or new circumstances.

An agreement on the settlement of a dispute (conflict) by the parties in accordance with the procedure provided for in Chapter 17 of the CPC "Conciliation Procedures", concluded by the parties after the entry into force of the judicial act and approved by the court, which determines the rights and obligations of the parties in a disputed legal relationship that differ from those established by the judicial act, does not apply to newly discovered or new circumstances. The terms of such an agreement are subject to execution by the parties independently, and enforcement proceedings for the enforcement of the initial judicial act are subject to termination in accordance with subparagraphs 2) and 2-1) of paragraph 1 of Article 47 of the Law of the Republic of Kazakhstan dated April 2, 2010 No. 261-IV "On Enforcement proceedings and the status of bailiffs."

The newly discovered circumstances, in relation to subparagraph 1) of the second part of Article 455 of the CPC, should be understood as the deliberate falsity of the testimony of a witness or expert opinion, the deliberate inaccuracy of translation, forgery of documents or material evidence, established by a court verdict that has entered into force, which resulted in the issuance of an illegal and unjustified judicial act, for the revision of which an application has been filed.

In accordance with subparagraph 2) In the second part of Article 455 of the CPC, newly discovered circumstances should be understood as criminal acts of the persons involved in the case, their representatives, or judges committed during the consideration of this civil case (for example, a corruption offense, bribery, or threat against a party, representative, or witnesses) established by a court verdict that has entered into force.

     The conviction of the persons listed in subparagraph 2) of part two of Article 455 of the CPC for criminal offenses committed not during the consideration of a civil case in which an application for judicial review has been filed does not apply to newly discovered circumstances.

    The circumstances listed in this paragraph and paragraph 5 of this regulatory resolution may be established, in addition to the verdict, by decisions of the court or other state bodies and officials performing the functions of criminal prosecution that have entered into force, to terminate the criminal case after the expiration of the statute of limitations, as a result of an amnesty act, in connection with the death of the accused or the failure to reach the age for prosecution to be criminally responsible.

Newly discovered circumstances, in relation to subparagraph 3) of the second part of Article 455 of the CPC, are understood to mean the cancellation of judicial acts or acts of another state body in accordance with the procedure established by law, if they were the basis for issuing a judicial act in a civil case.

    A resolution of another state body should be understood as a resolution of an official of an authorized state body in the case of an administrative offense, a single or collective act of an executive authority, acts of a local representative body or a local government body.

    The cancellation of decisions of state bodies should be understood as the recognition of them as illegal by a court, as well as the cancellation of these decisions by a higher authority or an official in accordance with the procedure established by law.

On the grounds provided for in the sub-paragraphs 1), 2), 3), 4) According to the third part of Article 455 of the CPC, judicial acts may be reviewed under new circumstances. The new circumstances are those that arose after the entry into force of the judicial act, the revision of which was announced.

     In accordance with subparagraph 1) In the third part of Article 455 of the CPC, a new circumstance is understood to mean a court decision that has entered into legal force to revoke a judicial act that established the circumstances adopted without proof during the consideration of this civil case, based on the provisions of parts two, three, four and five of Article 76 of the CPC.

     According to subparagraph 2) of the third part of Article 455 of the CPC, a new circumstance is understood to mean a court decision that has entered into force declaring the disputed transaction invalid and applying the consequences of its invalidity, as well as applying the consequences of the invalidity of a void transaction.

     With regard to subparagraph 3) of the third part of Article 455 of the CPC, a new circumstance is the final decision of the Constitutional Council of the Republic of Kazakhstan on the recognition of unconstitutional laws and other regulatory legal acts, with the application of which the judicial act was issued.

     By virtue of subparagraph 4) of the third part of Article 455 of the CPC, a new circumstance is the cancellation of an arbitration award, the enforcement of which was issued by a judicial act.

    The footnote. Paragraph 8 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).

An application for review of judicial acts that have entered into force due to newly discovered or new circumstances (hereinafter referred to as the application for review) may be submitted only by the parties and other persons involved in the case or by the prosecutor.

     The right to apply for a review also belongs to the procedural legal successors of the persons involved in the case in accordance with Article 53 of the CPC.

Persons who are not involved in the case do not have the right to file an application for review. If a judicial act that has entered into legal force resolves the issue of the rights and obligations of these persons, they have the right to request the restoration of the procedural time limit for filing an appeal or a petition for review of the judicial act in cassation.

An application for judicial review is submitted to the court in writing or in the form of an electronic document, signed by the person submitting the application or his authorized representative, or certified by their electronic digital signature and must meet the requirements provided for in parts two, three and four of Article 458 of the CPC.

    The application is submitted in the language of the proceedings established by the court ruling when considering a civil case.

If the application for review is filed in violation of the rules established by Articles 456 and 457 of the CPC, after the expiration of the prescribed period and there is no request for its restoration or the restoration of the missed deadline for submitting the application is refused, if the requirements for the language, form and content of the application are not met, it is subject to return.

    An application for review is subject to return if it is withdrawn by the applicant before its consideration, submitted or signed by a person who does not have the authority to submit or sign it, or by an incapacitated person.

     If the request for review is justified by circumstances that have already been the subject of consideration under the rules of Chapter 55 of the CPC, its acceptance should be refused by analogy with Article 151 of the CPC.

    The court's ruling on the return of the application for review and on the refusal to accept it may be appealed or reviewed at the request of the prosecutor.

     The ruling of the court of appeal, issued on a private complaint or at the request of the prosecutor, on the issue of returning the application for review is final and is not subject to cassation review by analogy with part seven of Article 429 of the CPC.

    The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).

An application for review of a judicial act based on newly discovered or new circumstances is considered accepted for court proceedings from the date of its receipt.

    Having accepted the application for trial, the judge issues a ruling indicating the date and place of the court hearing to consider the application.

    The judge sends a copy of the ruling to the persons participating in the case and notifies them of the time and place of consideration of the application.

    The footnote. Paragraph 12 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).

The application for review is considered by the court that issued the judicial act.

     Such a court is understood to mean the judge of the court of first instance who issued the judicial act, the collegial composition of the court of appeal or cassation instance, as well as the judge of the appellate instance who reviewed the case in accordance with the procedure provided for in paragraph three of Article 402 of the CPC, who issued a decision on the amendment or cancellation of the judicial act with the adoption of a new procedural decision in the case.

    In the event that the court of cassation cancels the ruling, the decision of the court of appeal and leaves in force the ruling, the decision of the court of first instance, the application for review is considered by the court of first instance.

     Judicial acts of judicial boards of regional and equivalent courts, adopted during the period of the CPC dated July 13, 1999, are reviewed according to newly discovered or new circumstances by the judicial board for civil cases of this regional and equivalent court in collegial composition.

The three-month period for filing an application for review is calculated from the day following the day of the occurrence of the events specified in paragraphs 1), 2), 3), 4), 5) Articles 459 of the CPC.

    The specified period may be restored if it is missed for reasons recognized by the court as valid. At the same time as the application for review, a request for reinstatement of the deadline is submitted, accompanied by a document confirming the validity of the reasons for missing the deadline.

    When deciding on the possibility of restoring the time limit, the court must take into account not only the validity of the reasons for the omission, but also the timeliness of applying to the court for a review after the applicant learned or should have learned about the existence of newly discovered or new circumstances.

An application for review is considered in a court session within fifteen working days from the date of its receipt by the court of first instance, and in the courts of appeal and cassation instances – within the specified period from the date of receipt of the case. The case must be requested by the court no later than five working days from the date of receipt of the application.

    The failure of the applicant and the persons participating in the case, duly notified of the place and time of the court session, is not an obstacle to the consideration of the application.

The court's ruling based on the results of the review of the application for review must comply with the requirements specified in the first part of Article 269 of the CPC.

    The reasoning part of the definition should specify:

     do the circumstances referred to by the applicant in the application belong to the category of newly discovered or new circumstances provided for in parts two and three of Article 455 of the CPC, in particular,

    did these circumstances exist on the day of the court's issuance of the judicial act for which the application was filed, were or could they have been known to the applicant and when did they become known to the applicant;

    did these circumstances arise after the adoption by the court of the judicial act for which the application was filed, when they became known to the applicant;

    are the circumstances indicated in the statement significant and how may they affect the outcome of the case?

    If the application for review is subject to satisfaction, then the operative part of the ruling should indicate the satisfaction of the application and the cancellation of the judicial act issued in the case due to newly discovered or new circumstances.

A court ruling issued based on the results of a review of judicial acts that have entered into force may be appealed or reviewed at the request of the prosecutor.

     Rulings of the court of appeal may be reviewed in cassation by the Supreme Court of the Republic of Kazakhstan according to the rules of Chapter 54 of the CPC.

     The rulings of the court of cassation may be reviewed only if there are grounds provided for in part six of Article 438 of the CPC.

    In case of cancellation of the ruling of the lower court on the refusal to satisfy the application for revision of the judicial act on newly discovered or new circumstances, the court of appeal or cassation instance has the right to resolve the issue on the merits with the transfer of the case for a new hearing to the appropriate court.

    The footnote. Paragraph 17 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).

If there are typos or obvious arithmetic errors in the court ruling based on the results of the review of the application, they must be eliminated in accordance with the procedure provided for in Article 235 of the CPC.

When the case is referred for a new hearing to the court of first instance, a ruling on the acceptance of the case into court proceedings is not issued, but in accordance with Article 165 of the CPC, the judge takes the necessary actions to prepare the case for trial.

    The time limit for preparing the case for a new trial should be calculated from the date of entry into force of the ruling on the revision of the judicial act that entered into force due to newly discovered or new circumstances. In the case of a ruling on review by a higher court, the time limit for preparation is calculated from the moment the case is received by the relevant court.

     The time limit for preparing the case for a new trial may be extended on the grounds specified in Article 164 of the CPC.

    The footnote. Paragraph 19 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).

A civil case may be re-examined by judges who participated in the issuance of a judicial act that was canceled due to newly discovered or new circumstances.

    If the judge who issued the judicial act for which the application has been submitted cannot consider it due to illness, vacation, study, business trip, as well as in cases of termination or suspension of his powers, the application is considered in the same court by another judge.

    This rule also applies to the collegial composition of the court that issued the judicial act for which the application was submitted.

     If there are grounds provided for in the first part of Article 38 of the CPC, a judge may not re-examine a case in which a judicial act has been revoked due to newly discovered or new circumstances.

After the cancellation of judicial acts due to newly discovered or new circumstances, the case is subject to consideration according to the rules established by the norms of the CPC.

     Upon new consideration of the case, the judge, in accordance with Articles 156, 157 of the CPC, has the right to take such interim measures that are aimed at securing the filed claim or at reversing the execution of the court decision.

     The judicial act adopted as a result of the new consideration of the case must comply with the requirements of Articles 226 and 269 of the CPC.

If a judicial act that has been annulled due to newly discovered or new circumstances has been executed in whole or in part, and a different decision has been made upon a new hearing of the case, the court, in accordance with articles 247, 248 of the CPC, is obliged to resolve the issue of reversing the execution of the decision.

Invalidate them:

     1) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2007 No. 12 "On certain issues of revision of judicial acts in civil cases due to newly discovered circumstances";

     2) Paragraph 16 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 30, 2011 No. 5 "On Amendments and additions to certain regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan";

     3) paragraph 10 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 29, 2012 No. 6 "On Amendments and additions to certain regulatory resolutions of the Supreme Court of the Republic of Kazakhstan".

According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, is generally binding and enters into force from the date of the first official publication.

    Chairman of the Supreme Court of the Republic of Kazakhstan

K. MAMIE

       Judge of the Supreme Court of the Republic of Kazakhstan, Secretary of the plenary session

G. ALMAGAMBETOVA

© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan  

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