Suspension of execution of judicial acts in civil cases

Article 448 of the Civil Procedure Code of the Republic of Kazakhstan provides for Kazakhstan, simultaneously with the request for a case, to suspend the execution of a judicial act for review in cassation for a period of no more than three months, in connection with which they issue an appropriate resolution. The decision to suspend the execution of a judicial act is sent to the judicial authority executing judicial acts in accordance with the Law "On Enforcement Proceedings and the Status of Bailiffs", and to the parties. When there is no need to suspend the execution of a judicial act, a decision is also issued to cancel the suspension, which is sent to the judicial authority and the parties. The decision to suspend the execution of a judicial act is sent to the judicial authority executing judicial acts in accordance with the Law "On Enforcement Proceedings and the Status of Bailiffs", and to the parties. When there is no need to suspend the execution of a judicial act, a decision is also issued to cancel the suspension, which is sent to the judicial authority and the parties. The institution of suspending the execution of judicial acts at the stage of cassation review is designed to ensure the stability of the economic condition of the parties to the dispute and prevent the occurrence of negative consequences. In addition, in order to avoid the need to use the procedure for reversing the execution of the decision in case of its cancellation. Meanwhile, a possible suspension of the execution of a court decision must meet the criteria of fairness and not affect the essence of the constitutional rights of the parties to the dispute, and therefore this issue is resolved taking into account the specific circumstances of the case.

Suspension of execution of judicial acts in civil cases

The analysis showed that the decisions to suspend the execution of judicial acts were due to possible negative consequences for the parties to the dispute. U. appealed to the court to A. for eviction from the apartment without providing other housing. The courts have satisfied the claim. Disagreeing with the judicial acts, A. appealed to the Supreme Court with a request to review the judicial acts and suspend their execution. On 18 April 2017, the Chairman of the Supreme Court suspended the execution of judicial acts in this case due to possible irreversible consequences for the applicant. During the review of the legality of judicial acts, it was established that the courts, while satisfying the eviction claim, did not clarify the circumstances of the settlement and the legal relations that arose between the parties, since the ownership of the disputed apartment according to the statute of limitations entered into force was recognized by the defendant's mother, who was not involved in the case by the court. On September 12, 2017, the Judicial Board of the Supreme Court annulled the judicial acts and sent them for new consideration to the court of appeal, the petition was granted. Upon a new review by the court of appeal, the claim was denied. Thus, the suspension of the execution of judicial acts in this case was aimed at protecting the rights and interests of the parties. Problematic issues and suggestions for their resolution. Some of the problematic issues are covered in this summary and ways to solve them are proposed. This section contains the remaining problematic issues and suggestions for their resolution. According to subparagraph 3) of part 2 of Article 434 of the CPC, judicial acts related to the property interests of individuals with a claim amount of less than two thousand monthly calculation indices and legal entities with a claim amount of less than thirty thousand monthly calculation indices are not subject to cassation review. An analysis of this rule suggests that judicial acts issued in cases where only individuals or legal entities are parties are not subject to cassation review. In the first case, if the amount of the claim is less than 2,000 MCI (both parties are individuals). In the second case, if the amount of the claim is less than 30,000 MCI (both parties are legal entities).

If the claim is filed by an individual, and the defendant is a legal entity, and the amount of the claim is more than 2,000 MCI, or in the case of a claim by a legal entity against an individual with a claim amount of less than 30,000 MCI, both parties are equally entitled to file a petition for review of judicial acts in the cassation instance. This understanding of the rule of law is consistent with the principles of civil procedure, such as: - equality of all before the law and the court (Article 13 of the CPC); - competition and equality of the parties (Article 15 of the CPC); - Freedom of appeal against judicial acts (Article 22 of the CPC). In its meaning, the norm of subparagraph 3) of part 2 of Article 434 of the CPC applies exclusively to property claims subject to monetary valuation. If the filed claim contains at the same time claims of a non-property nature or claims of a property nature that are not subject to monetary assessment, judicial acts issued in such cases are subject to review in the court of cassation in a general manner. Property claims subject to monetary valuation, regardless of the nature of the interests being protected (personal, public, in defense of the rights of 3 persons, in defense of the rights of an indefinite circle of persons), are subject to the rules of the cumulative qualification defined by subparagraph 3) of part 2 of Article 434 of the CPC. For example, a claim has been filed by the Tax Authority for the recovery of taxes from an individual and the amount of the claim is less than 2,000 MCI. The judicial acts issued in such a dispute are not subject to review in court in the cassation instance in the general order. The right of the Chairman of the Supreme Court of the Republic of Kazakhstan to revoke the submitted submission on the revision of judicial acts is not regulated by law. By a decision of the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan, in connection with the withdrawal, the submission of the Chairman of the Supreme Court, submitted at the request of the Joint-Stock Company on his claim to the interim administrator of the LLP to compel the interim administrator to include the amount of claims in the register of creditors' claims, was left without consideration. Subsequently, the JSC filed a statement in which it asked to clarify how his petition was resolved if the submission made following the consideration of his petition was left without consideration. According to Part 4 of Article 6 of the CPC, in the absence of legal norms governing legal relations, the court applies the norms of law governing similar relations.  The disposition of part 3 of Article 435 of the CPC stipulates that the person who filed the petition, including the prosecutor who filed the petition as a party to the case, has the right to refuse or withdraw the petition, the prosecutor who brought the protest has the right to withdraw it by filing an application to the court of cassation before considering the petition, protest. Thus, the right to withdraw a petition or protest is vested in: - the person who filed the petition, - the prosecutor who brought the protest. Since there is no provision in the procedural legislation granting the Chairman of the Supreme Court the right to withdraw a submission, the above rule of law applies to such a controversial situation, since it regulates similar legal relations. Consequently, if the submission is made based on the results of consideration of the petition, it may be withdrawn by the Chairman of the Supreme Court before considering the case on its merits. In this case, the author of the petition is given an answer about the absence of exceptional grounds for reviewing judicial acts. The same procedure for revoking a submission also applies when the Chairman of the Supreme Court submits a submission on the revision of judicial acts on his own initiative. 

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