On the preparation of civil cases for trial
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 13, 2001 No. 21.
The footnote. The title in the official language is presented in a new edition, the text in Russian does not change in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 25.11.2016 No. 9 (effective from the date of the first official publication).
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For the purpose of uniform application in judicial practice of the norms of procedural legislation regulating the preparation of civil cases for trial, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:
The footnote. The preamble as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 25.11.2016 No. 9 (effective from the date of the first official publication).
The preparation of civil cases for trial is an obligatory part of the stage of proceedings in the court of first instance and appeal and creates the necessary conditions for a full, comprehensive and objective examination of the evidence presented by the parties, the actual rights and obligations of the parties subject to the application of substantive law, and the issuance of a lawful and reasoned judicial act.
In order to implement the tasks listed in the second part of Article 163 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) to prepare a case for trial, a judge must strictly comply with the requirements of Articles 148 and 149 CPC on substantiation of statements submitted to the court with evidence when accepting applications for court proceedings.
The footnote. Paragraph 1 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated December 29, 2012 No. 6 (effective from the date of official publication); dated November 25, 2016 No. 9 (effective from the date of the first official publication).
In accordance with the first part of Article 163 of the CPC, the judge is obliged in each case, including in cases that have come under the jurisdiction of other courts, as well as in the transition from simplified (written) proceedings to the consideration of the case according to the rules of claim proceedings in the general procedure or the cancellation in accordance with the second part of Article 147 of the CPC of the court decision, in a simplified (written) procedure, to make a ruling on the preparation of the case for trial, indicating in it specific deadlines and actions., which, taking into account the category of the dispute, are necessary for the timely and correct resolution of the dispute at a court hearing.
Such a ruling should also be made in the event that a judicial act previously rendered in a case is annulled on appeal or cassation with the referral of the case for a new hearing to the court of first instance.
The ruling on the preparation of the case for trial in accordance with the first part of Article 429 of the CPC is not subject to appeal or appeal.
After issuing a ruling on the preparation of the case for trial, the judge obliges the defendant to submit, within the prescribed period, a written response to the plaintiff's claims, accompanied by evidence substantiating the arguments. The withdrawal must be signed by an authorized person and submitted to the court in the original and copies according to the number of persons participating in the case, no later than ten working days from the date of receipt of a copy of the statement of claim and comply with the requirements of Article 166 of the CPC.
Subject to the requirements of Articles 413 and 414 of the CPC, a judge of the appellate instance may, on his own initiative or at the request of the persons participating in the case, take the actions provided for in Article 165 of the CPC within ten working days from the date of receipt of the case to the court. A ruling on the preparation of a case for trial may also be issued by a judge of the appellate instance when judicial acts of the courts of the first or appellate instances previously rendered in the case have been annulled in cassation with the referral of the case for a new hearing to the court of appeal.
The footnote. Paragraph 2, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of official publication); dated 12/29/2012 No. 6 (effective from the date of official publication); dated 11/25/2016 No. 9 (effective from the date of the first official publication); dated 04/15/2021 No. 1 (effective from the date of the first official publication).
According to Article 14 of the CPC, the language of legal proceedings should be considered the language in which the application was submitted to the court. However, if, during the preparation of the case for trial, a written request is received from the plaintiff or from both parties to change the language of the proceedings, the judge issues a ruling on the language of the proceedings in which the proceedings will be conducted at the court session.
The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 25.11.2016 No. 9 (effective from the date of the first official publication).
When preparing civil cases for trial, judges should explain to plaintiffs and defendants the procedural rights and obligations provided for in Article 46 of the CPC, including the obligation to provide evidence in support of stated claims or objections to them, as well as the legal consequences of a party's failure to fulfill this procedural obligation.
When providing assistance in obtaining evidence at the request of the plaintiff or the defendant, the judge is not entitled to make judgments about the advantages of some evidence over others when preparing the case for trial.
The footnote. Paragraph 4 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 25.11.2016 No. 9 (effective from the date of the first official publication).
For disputes (conflicts) arising from civil law relations, the parties should explain the right to transfer such disputes by written agreement of the parties to arbitration, the court of the Astana International Financial Center in cases where this is not prohibited by law, the procedure for this procedural action and its legal consequences. However, the arguments of the parties that this right has not been clarified do not indicate that the civil case was improperly prepared for trial.
The court should explain to the parties the right to conclude a settlement agreement, dispute (conflict) settlement agreements through mediation or a participatory procedure in accordance with the first part of Article 48 of the CPC, which regulates the right of the parties to conclude such agreements.
The footnote. Paragraph 5, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/29/2012 No. 6 (effective from the date of official publication); dated 11/25/2016 No. 9 (effective from the date of the first official publication); dated 04/15/2021 No. 1 (effective from the date of the first official publication).
When the parties submit written and signed amicable agreements, dispute (conflict) settlement agreements through mediation or a participatory procedure, the judge, in accordance with the requirements of Article 172 of the CPC, holds a preliminary court hearing according to the rules established by Chapter 18 and in accordance with Article 48, part one of Article 168, paragraphs 5), 6 Article 277 of the CPC has the right to make a ruling on their approval and termination of the proceedings. On the basis of Articles 109 and 115 of the CPC, the judge is obliged to distribute court costs between the parties, based on the terms of the agreements, taking into account the provisions of part four of Article 176 of the CPC on the grounds for recognizing mutually repaid court costs. When a court approves a settlement agreement, dispute (conflict) settlement agreements through mediation or a participatory procedure, the paid state fee is subject to refund to the payer in accordance with the procedure provided for by the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget (Tax Code).
The footnote. Paragraph 6 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 25.11.2016 No. 9 (effective from the date of the first official publication).
If, when preparing a civil case for trial, the interests of the parties in court are represented by their representatives, the judge is obliged to check whether these representatives have properly executed powers to commit each of the procedural actions listed in the first part of Article 60 of the CPC.
The footnote. Paragraph 7 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 25.11.2016 No. 9 (effective from the date of the first official publication).
If, during the preparation of the case for trial, it turns out that the plaintiff has claims against the same or other defendants arising from the filed application, and the defendant has counterclaims against the plaintiff, the judge must clarify the right of both the plaintiff to file additional claims and the defendant to file a counterclaim, warning them of the consequences of committing or failure to perform the specified procedural actions in accordance with part four of Article 15 of the CPC. The plaintiff may exercise the right to file additional claims, and the defendant may file a counterclaim, within the time limits specified in Article 164 of the CPC for preparing the case for trial, with the exception of the cases provided for in part one of Article 169 and part two of Article 153 of the CPC. At the same time, it should be borne in mind that the presentation of additional claims, counterclaim does not interrupt the course of the procedural period for the preparation of the case, established by Article 164 of the CPC, and is not a reason for its extension. There is no such right for the plaintiff to present additional claims at the stage of consideration of the case in the appellate instance.
The judge accepts a counterclaim from the defendant for joint consideration in the same proceeding with the plaintiff's statement if the counterclaim meets the requirements specified in Article 154 of the CPC. If the content of this statement does not comply with the requirements specified in Article 154 of the CPC, the judge, on the basis of Article 152 of the CPC, issues a ruling on the return of the counter-statement.
The footnote. Paragraph 8, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of official publication); dated 12/29/2012 No. 6 (effective from the date of official publication); dated 11/25/2016 No. 9 (effective from the date of the first official publication).
The combination of several claims into one proceeding is possible only in cases where, by the nature of the claims in their interrelation and the availability of common evidence, it is possible for a faster and more correct resolution of all the claimed claims in one proceeding.
Separation of several claims joined by the plaintiff in one statement is possible if separate consideration of such claims is deemed necessary by the judge.
The connection of several claims or their separation must be formalized by a judge in a separate ruling, which, in accordance with Article 429 of the CPC, cannot be appealed or reviewed on appeal at the request of the prosecutor.
The footnote. Paragraph 9, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 11/25/2016 No. 9 (effective from the date of the first official publication); dated 04/20/2018 No. 7 (effective from the date of the first official publication).
Performing the tasks of preparing the case for trial, established by Article 163 of the CPC, the judge performs the actions provided for in Article 165 of the CPC. If the response to the statement of claim indicates the existence of a counterclaim, the judge explains to the defendant the procedure for its presentation. Failure to provide a response to the statement of claim is not an obstacle to the consideration and resolution of the case.
Based on the written documents submitted by the parties, the judge establishes the factual circumstances of the case. The list of actions specified in Article 165 of the CPC is not exhaustive, their scope and content depend on the specifics of the consideration of a particular category of cases.
The footnote. Paragraph 10 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 25.11.2016 No. 9 (effective from the date of the first official publication).
Based on the results of the preparation of the case for trial, in accordance with the requirements of Article 172 of the CPC, a preliminary court hearing is held. If the case is found to be insufficiently prepared for trial, the judge finds out from the parties about the availability of additional evidence to substantiate or refute the stated claims, explains the right to file a petition for assistance in obtaining evidence, sets deadlines for such actions, extends the period for preparing the case for trial if there are grounds established by the first part of Article 164. GPC. No ruling is made on the appointment of a preliminary meeting. In exceptional cases related to the complexity of the case, the judge may extend the time for preparing the case and, if necessary, may hold a second preliminary court session.
The footnote. Paragraph 11 as amended by the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 25.11.2016 No. 9 (effective from the date of the first official publication).
In accordance with Article 51 of the CPC, third parties who make independent claims on the subject of the dispute cannot be involved in the case at the stage of preparing the case for trial, either on the initiative of the parties or on the initiative of the court. These persons have the right to enter into the case on their own initiative by filing a claim against the plaintiff or the defendant, if they deem it necessary.
Third parties who do not make independent claims are involved in the case on the side of the plaintiff or the defendant at the initiative of the judge or the parties at any stage of the process, including at the stage of preparing the case for trial, if the court's decision may affect their rights and obligations towards one of the parties. These persons, in accordance with Article 52 of the CPC, enjoy the procedural rights and obligations of the relevant party, with the exception of the right to change the basis and subject of the claim, increase or decrease the volume of claims, waive the claim, admit the claim, conclude an amicable agreement, an agreement on the settlement of a dispute (conflict) through mediation or an agreement on the settlement of a dispute through a participatory procedure, filing a counterclaim, or demanding the enforcement of a court decision.
In case of cancellation of the decision of the court of first instance on the grounds provided for in subparagraph 4) the fourth part of Article 427 of the CPC, which regulates that the decision of the court of first instance is subject to cancellation in any case if the court resolved the issue of the rights and obligations of persons not involved in the case when accepting the case for its proceedings, as well as in other cases when resolving the issue of involving third parties is necessary by virtue of Article 52 GPC, In order to prepare the case, the court of appeal, in the interests of legality, has the right to involve third parties at the stage of consideration of the case in the appellate instance. At the same time, the preparation of the case should be carried out within the limits established by Article 413 of the CPC.
The footnote. Paragraph 12, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of official publication); dated 12/29/2012 No. 6 (effective from the date of official publication); dated 11/25/2016 No. 9 (effective from the date of the first official publication).
Abrogated by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12.01.2009 No. 2 (for the procedure of entry into force, see paragraph 29 ).
In accordance with Article 54 of the CPC, the participation of a prosecutor in civil proceedings is mandatory in cases affecting the interests of the State, when it is necessary to protect public interests or citizens who cannot defend themselves on their own, as well as when the need for the prosecutor's participation is recognized by the court in preparing the case for trial.
According to the law, the participation of the prosecutor is mandatory in the court session when the courts consider, for example, cases:
on the rejection of the prosecutor's protest against a regulatory legal act that does not comply with the law (Article 300 of the CPC);
on the deprivation of a person's parental rights (paragraph 2 of Article 76 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", as well as in cases provided for in the second part of Article 54 of the CPC).
A court may recognize the participation of a prosecutor in a court hearing as mandatory when considering, for example, cases:
initiated at the request of the prosecutor in the interests of other persons;
one of the parties in which are minors, people with disabilities, and people with limited legal capacity;
in which the State or an administrative-territorial unit is a party;
which are listed in Chapters 27, 28, 29, 30 of the CPC.
The mandatory participation of the prosecutor in the court session is indicated in the ruling on the preparation of the case for trial.
The footnote. Paragraph 14, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of official publication); dated 12/29/2012 No. 6 (effective from the date of official publication); dated 11/25/2016 No. 9 (effective from the date of the first official publication); dated 04/20/2018 No. 7 (effective from the date of the first official publication).
In accordance with article 56 of the CPC, the courts are recommended to decide whether to involve representatives of state bodies and local governments in the court session to give an opinion on the case, when such participation is provided for by legislative acts.
The footnote. Paragraph 15, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated December 29, 2012 No. 6 (effective from the date of official publication); dated November 25, 2016 No. 9 (effective from the date of the first official publication).
In order to prepare a case for trial, the court has the right, in accordance with Article 82 of the CPC, to issue a ruling on the appointment of an expert examination. When deciding on the appointment of an expert examination, the court is obliged to properly notify the parties of the time and place of consideration of the plaintiff's or defendant's request for the appointment of an expert examination, however, the failure of these persons to appear in court is not an obstacle to the consideration of the request for the appointment of an expert examination. The court explains to the parties who have appeared in court the right to formulate questions that should be put to the experts, however, the final range of questions that the expert should answer is indicated by the judge in the ruling on the appointment of an expert examination.
Only those questions that require special knowledge in the field of science, technology, and art can be asked for the permission of experts. Legal issues, the resolution of which falls within the competence of the court, cannot be submitted to the expert's permission.
An expert examination may be appointed and conducted in order to provide evidence, during the preparation of the case for trial and during the consideration of the case before the decision is made. Before assigning a case to trial, the persons involved in the case must be familiar with the expert opinion.
The footnote. Paragraph 16, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated December 29, 2012 No. 6 (effective from the date of official publication); dated November 25, 2016 No. 9 (effective from the date of the first official publication).
At the request of the parties or their representatives, who have reason to fear that the presentation of the evidence necessary for them to the court may subsequently become impossible or difficult, the court, in accordance with Articles 69, 70, 71 of the CPC, may take measures to ensure such evidence. An application for securing evidence must comply with the requirements specified in the second part of Article 70 of the CPC.
Measures to ensure them are taken by the court in which the case is pending. In the ruling, the court indicates the evidence that, at the request of the party, can be provided during the preparation of the case for trial (specific witnesses have been questioned, evidence has been examined, etc.).
If, when preparing the case for trial, the court does not consider the grounds for taking measures to secure evidence, it issues a reasoned ruling on the refusal to take measures to secure the claim. This ruling may be appealed by the applicant in accordance with the procedure provided for in Article 429 of the CPC.
When preparing a case for trial, a request for securing evidence located in another district or city of the Republic of Kazakhstan is resolved by a judge by issuing a ruling on a court order, which is executed in accordance with the procedure provided for in Article 75 of the CPC.
Providing evidence or assisting a party in the recovery of evidence located in a foreign country is carried out by a judge by issuing a ruling on a court order. This ruling is executed by a court of the relevant foreign State in accordance with the provisions of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, concluded by the Republic of Kazakhstan on January 22, 1993 in Minsk, or in accordance with the provisions of other international treaties concluded and ratified by the Republic of Kazakhstan.
The footnote. Paragraph 17 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 29, 2012 No. 6 (effective from the date of official publication); dated November 25, 2016 No. 9 (effective from the date of the first official publication).
In accordance with Article 281 of the CPC, when performing certain procedural actions during the preparation of a case for trial, such as examining written or physical evidence, appointing an expert examination, approving the terms of a settlement agreement, an agreement on dispute settlement (conflict) through mediation, an agreement on dispute settlement through a participatory procedure, a written protocol is drawn up or a short protocol for conducting audio and video recordings of court sessions. When preparing a case for trial in the court of first instance, the protocol is kept at the request of the party or at the initiative of the court, except in cases when a decision on the merits of the dispute is made at this stage.
The footnote. Paragraph 18, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/29/2012 No. 6 (effective from the date of official publication); dated 11/25/2016 No. 9 (effective from the date of the first official publication); dated 04/15/2021 No. 1 (effective from the date of the first official publication).
The preparation of a civil case for trial must be carried out by a judge no later than twenty working days from the date of acceptance of the statement of claim into court proceedings, unless otherwise established by the CPC and other laws.
In cases of recognizing a citizen as missing or declaring a citizen dead, the time limit for preparing a case for trial, taking into account the second part of Article 319 of the CPC, is three months after publication of the initiation of proceedings on recognizing a citizen as missing or declaring a citizen dead in the mass media (district, regional, republican level, on the Internet, on television).
According to statements by citizens, public associations, and members of the election commission about violations of electoral rights in accordance with part one of Article 287 of the CPC, received less than five days before voting, on election day, and before the announcement of the election results, the republican referendum case should not only be prepared, but also considered by the court on its merits – immediately, if The Constitutional Laws of the Republic of Kazakhstan dated September 28, 1995 No. 2464 "On Elections in the Republic of Kazakhstan" and November 2, 1995 No. 2592 "On the Republican Referendum" do not provide otherwise. In this category of disputes, the time limit for preparing a case for trial cannot be extended.
The period of twenty working days specified in Article 164 of the CPC for the preparation of cases for court proceedings on claims for recovery of alimony, for compensation to the victim for damage caused by injury or other damage to health, as well as in case of loss of the breadwinner and for all claims arising from employment relations, is not subject to extension. In other categories of cases, in exceptional cases, this period may be extended by an additional one month, as determined by the judge, only in cases of special complexity.
Exceptional cases should be understood as circumstances in which the actions provided for by the judge to prepare the case for trial could not be completed within a period of twenty working days or the time limit provided by legislative acts for certain categories of cases.
The footnote. Paragraph 19, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/29/2012 No. 6 (effective from the date of official publication); dated 11/25/2016 No. 9 (effective from the date of the first official publication); dated 04/15/2021 No. 1 (effective from the date of the first official publication).
In accordance with the first part of Article 168, articles 272, 273, 274 of the CPC, the judge issues a ruling on suspending the preparation of the case for trial in the presence of circumstances listed in the aforementioned provisions of the law, until they are eliminated.
By analogy with Article 271 of the CPC, the judge is obliged to send a copy of the ruling suspending the preparation of the case for trial to the persons participating in the case.
A private complaint may be filed against the decision to suspend the preparation of a case for trial, or a prosecutor's petition may be filed in accordance with the procedure provided for in Article 429 of the CPC.
The footnote. Paragraph 20 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11/25/2016 No. 9 (effective from the date of the first official publication); dated 04/20/2018 No. 7 (effective from the date of the first official publication).
The proceedings in the case are resumed after the elimination of the circumstances that caused its suspension, at the request of the persons participating in the case, or at the initiative of the court. Upon resumption of proceedings, the court shall notify the persons participating in the case in accordance with the general rules of civil procedure.
The grounds for resuming proceedings in the case are announced by the presiding judge and are subject to reflection in the minutes of the court session (protocol definition).
At the same time, during the preparation of the case for trial, the period that has expired from the date of the judge's ruling on the acceptance of the application and the initiation of civil proceedings until the date of the ruling on the suspension of the preparation of the case for trial is subject to offset.
The footnote. Paragraph 21 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 Article 173 of the CPC, a case should be considered prepared for trial if the judge has performed all the actions indicated by him in the ruling on the preparation of the case for trial.
Invalidate them:
Resolution of the Plenum of the Supreme Court of the Kazakh SSR dated October 10, 1986 No. 18 "On the practice of preparing civil cases for trial";
paragraph 4 of the Resolution of the Plenum of the Supreme Court of the Kazakh SSR dated October 2, 1987 No. 11 "On Amendments to certain Resolutions of the Plenum of the Supreme Court of the Kazakh SSR on civil matters"; subparagraph 2) Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated May 15, 1998 No. 5 "On Amendments to certain Resolutions of the Plenum of the Supreme Court of the Republic of Kazakhstan on the application of civil and civil procedure legislation."
According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, and is also generally binding and effective from the date of its official publication.
The footnote. Paragraph 24 was supplemented by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 29, 2012 No. 6 (effective from the date of its official publication).
Chairman of the Supreme
Courts of the Republic of Kazakhstan
Secretary of the plenary session,
Judge of the Supreme Court
Republic of Kazakhstan
© 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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