NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of December 8, 2017 No. 12

About application of regulations of the Code of civil procedure of the Republic of Kazakhstan by courts in case of review of court resolutions on again opened or new circumstances

For the purpose of uniform application of regulations of the Code of civil procedure of the Republic of Kazakhstan (further - GPK) in case of review of the court resolutions which took legal effect on again opened or new circumstances the plenary session of the Supreme Court of the Republic of Kazakhstan decides to make the following explanations.

1. The decisions which took legal effect, determinations and resolutions can be reviewed by the court which took out them on again opened or new circumstances.

The bases for review are the dispositive facts having essential value for the correct permission of earlier considered case which arose or took place, however they became known after the introduction of court resolution in legal force.

Having essential value such dispositive facts which attract removal of another on content of court resolution are admitted.

Courts should mean that Article part one 455 GPK is not the independent basis for review of the court resolutions which took legal effect on again opened or new circumstances. The bases for review are listed in parts two and third Article 455 GPK, they are exhaustive and are not subject to extensive interpretation.

Non-presentation of proofs by the party in reasons for the declared requirement or objections against it or not statement the party before court of the petition for rendering assistance in reclamation of the proofs which are at other party or the third parties demonstrates procedural omissions of person who was involved in consideration of the case. Such procedural omissions, and also submission of new proofs cannot be the basis to review of the court resolution which took legal effect on again opened or new circumstances.

2. On again opened or new circumstances the resolutions of the Trial Court which took legal effect, including decisions passed according to the procedure of the correspondence or simplified (written) production, the resolution of appeal and cassation instances by which are changed or cancelled the decision, the resolution of subordinate instance with removal in the matter of the new proceeding decision can be reviewed.

On again opened or new circumstances determinations of courts about suit abatement, and also determinations of court by results of consideration of the petition for cancellation of the arbitral decision and the statement for forced execution of the arbitral decision can be reviewed.

Other acts of Trial Court which case is not authorized on being (for example, determination about refusal in adoption of the action for declaration, determination about return of the action for declaration, determination about recovery or about refusal in recovery of procedural term, determination about judgment explanation, private determination) on again opened or new circumstances are not subject to revision.

3. According to Article part one 455 GPK are subject to review on newly discovered facts or new circumstances court resolution in general.

The statement for review of court resolution in its any separate part (for example, about review of court resolution according to the counter action, on one or several requirements, united in one production) is subject to return.

The court resolution which did not take legal effect is not subject to revision on again opened or new circumstances.

4. The agreement on the settlement of dispute (conflict) by the parties according to the procedure provided by Chapter 17 GPK "Conciliatory procedures" concluded by the parties after the introduction of court resolution in legal force and approved by court which by disputable legal relationship determines the rights and obligations of the Parties, excellent from established by court resolution does not belong to again opened or new circumstances. Conditions of such agreement are subject to execution by the parties independently, and the enforcement proceeding on forced execution of initial court resolution is subject to the termination according to subitems 2) and 2-1) Items 1 of article 47 of the Law of the Republic of Kazakhstan of April 2, 2010 No. 261-IV "About enforcement proceeding and the status of legal executives".

5. Under newly discovered facts, in relation to the subitem 1) Article parts two 455 GPK, it is necessary to understand the notorious falsehoods of testimonies of the witness or the expert opinion, notorious abnormality of transfer, the subfalsehood of documents or physical evidences which entailed removal of illegal and unreasonable court resolution about which review the application is submitted established by the court verdict which took legal effect.

6. According to the subitem 2) Article part two 455 GPK should understand the criminal acts of persons participating in case, their representatives, or judges committed by consideration of this civil case established by the court verdict which took legal effect as newly discovered facts (for example, corruption crime, bribery or threat concerning the party, the representative, witnesses).

Condemnation of persons listed in the subitem 2) to Article part two 455 GPK for the criminal offenses made not by consideration of civil case on which the application for review of court resolutions is submitted does not belong to newly discovered facts.

Listed in this Item and Item 5 of this normative resolution of circumstance can be established, in addition to sentence, the court orders which took legal effect or other state bodies and officials performing functions of criminal prosecution about the termination of criminal case behind lapse of time, owing to the act of amnesty, in connection with the death of the person accused or not achievement of age for criminal prosecution.

7. In relation to the subitem 3) of Article part two 455 GPK, are understood cancellation in the procedure for court resolutions established by the law as newly discovered facts or acts of other state body if they were the basis to removal of court resolution on civil case.

It is necessary to understand the resolution of the official of authorized state body on the case of administrative offense as the resolution of other state body, the individual or joint act of executive body, acts of local representative body or local government body.

It is necessary to understand recognition as cancellation of resolutions of state bodies their illegal court, and also cancellation of the specified resolutions by higher body or the official in the procedure established by the law.

8. On the bases provided by subitems 1) 2), 3), 4) of Article part three 455 GPK, court resolutions can be reviewed on new circumstances. Circumstances which arose after the introduction in legal force of court resolution which review it is declared are new.

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