RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE KYRGYZ REPUBLIC

of March 30, 2018 No. 8

About preparation of civil cases for legal proceedings

One of the main conditions of the correct and timely permission of civil cases is carrying out proper preparation them to legal proceedings.

For the purpose of ensuring the correct and uniform application of the legislation regulating preparation of civil cases for legal proceedings, the Plenum of the Supreme Court of the Kyrgyz Republic, being guided by article 18 of the constitutional Law of the Kyrgyz Republic "About the Supreme Court of the Kyrgyz Republic and local courts", decides:

1. Draw the attention of courts that preparation of case for legal proceedings is obligatory stage of civil process and is carried out by the judge with participation of the parties and persons participating in case (the p. 3 of the Art. 150 GPK of the KR).

2. The judge has the right to start preparation of case for legal proceedings only after removal of determination about adoption of the statement to production, that is after excitement of civil case in court (the p. 2 of the Art. 136 GPK of the KR).

In case of return of the action for declaration in connection with failure to carry out by the claimant of the instructions of court listed in determination about leaving of the statement without movement (the Art. 139 GPK), court takes out determination about return of the statement to the claimant with indication of the bases for return of the statement. The specified determination can be appealed according to the procedure, established by the procedural legislation.

Explain to courts that refusal in adoption of the action for declaration (the Art. 137 GPK of the KR), return of the action for declaration (the Art. 138 GPK of the KR) and leaving of the action for declaration without movement (the Art. 139 GPK of the KR) are possible only at stage of excitement of civil case and are inadmissible at stage of preparation of case for legal proceedings.

3. The judge takes out determination about preparation of case for legal proceedings and specifies actions which should make the parties and other persons participating in case and also terms of making of these actions according to the Art. 152 GPK of the KR.

In the same determination also the actions of the judge in this stage of process provided by the Art. 153 GPK of the KR are specified.

The judge takes out determination about preparation of case for legal proceedings also before consideration of the case after cancellation earlier taken out on the substance of court resolution, and also determination about suit abatement (the p. 4 of the Art. 150 GPK of the KR).

Explain to courts that determination about preparation of case for legal proceedings is not subject to appeal and the copy to its parties does not go.

4. It should be noted that according to the procedure of preparation of case for legal proceedings the judge suggests the defendant to submit written objection on the claim in time established by the judge. At the same time it must be kept in mind that non-presentation by the defendant of written objection on the claim does not interfere with consideration of the case on the proofs which are available in it (the Art. of the Art. 152, 153 GPK of the KR).

5. Draw the attention of courts to tasks of preparation of case for legal proceedings which are:

1) refining of the circumstances important for the correct permission of case;

2) determination of legal relationship of the parties and the law which should be guided;

3) permission of question of the list of persons participating in case;

4) ensuring submission of necessary proofs by the parties and persons participating in case;

5) conciliation of the parties.

Each of tasks is necessary for this stage of process and failure to carry out of any of them can lead to unreasonable delay in legal proceedings and miscarriage of justice.

5.1. Explain to courts that refining of the circumstances important for the correct permission of case is determination of dispositive facts based on requirements and objections of persons participating in case taking into account the rules of law which are subject to application. Determination of the circumstances important for case is performed by the judge (the Art. 65 GPK of the KR).

5.2. In case of determination of legal relationship of the parties and the law which should be guided the court shall proceed from data set: subject and the basis of the claim, the defense statements and other circumstances having legal value for the correct permission of case.

At the same time it should be noted that specifying by the claimant in reasons for the claim of the specific precept of law is not determining for the judge.

5.3. Courts are followed by permission of question of the list of persons participating in case to begin with the analysis of legal relationship and establishment of specific carriers of the rights and obligations. Failure to carry out of this task in stage of preparation can lead to acceptance of illegal and unreasoned decision as permission of question of the rights and obligations of persons who are not recruited in case is the fundamental breach of regulations of procedural law attracting unconditional cancellation of the decision in appeal procedure (item 7 p.1 the Art. of 341 GPK of the KR).

According to item 3 of the Art. 153 GPK of the KR the judge according to the procedure of preparation of case for legal proceedings resolves the petition of the parties for the introduction to co-plaintiffs, codefendants and the third parties.

It should be noted that in the cases provided by the law court of the parties having the right according to the petition or on the initiative to attract to participation in case of the codefendant or codefendants. Determination of court about attraction to participation in case or about refusal in such attraction to appeal is not subject (the p. 3 of the Art. 41, to item 3 of the Art. 153 GPK of the KR).

However, in case of presentation of the claim not by all persons who belong the disputed right the judge has no right to recruit such persons in case in quality of co-plaintiffs without their consent as according to the principle of dispositivity person who belongs right to claim disposes of the rights at discretion (the Art. 11 GPK of the KR).

Draw the attention of courts that if by preparation of case or during his trial in court the court determines that the claim is made not to that person who shall answer in the claim, it can allow replacement of the inadequate defendant with proper only according to the petition of the claimant. About replacement of the inadequate defendant determination which is not subject to appeal is taken out. After replacement of the inadequate defendant preparation and consideration of the case are made since the beginning (the Art. 42 GPK of the KR).

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