of March 20, 2003 No. 2
About application of some regulations of the civil procedural legislation by courts
Due to the changes of some regulations of the Code of civil procedure of the Republic of Kazakhstan (further - GPK) and need of their uniform application for court practice the plenary session of the Supreme Court of the Republic of Kazakhstan decides:
1. Draw the attention of courts to need of strict observance by consideration of each civil case of regulations of substantive and procedural law for the purpose of removal of the court resolution (the decision, determination, the resolution, the writ) answering to the principle of legality and criteria of justice and rationality.
2. According to Article 148 GPK claimants shall specify in statements not only requirements, but also in detail to state being of violation or threat of violation of their rights, freedoms and the interests protected by the law, circumstances on which base the requirements, and also proofs confirming these circumstances and requirements.
The claims made by the prosecutor in the state or public concerns or interests of the citizen shall conform to the requirements specified in Article part three 148 GPK.
The bases provided by Articles 151, of 152, of 272, of 273, of 277, 279 GPK on which by court it can be refused adoption of the action for declaration or the action for declaration can be returned to the applicant or is left without consideration, and production on the initiated civil case is suspended or stopped, are exhaustive.
3. No. 5 is excluded according to the Normative Resolution of the Supreme Court of the Republic of Kazakhstan of 30.12.2011
4. No. 5 is excluded according to the Normative Resolution of the Supreme Court of the Republic of Kazakhstan of 30.12.2011
5. No. 2 is excluded according to the Normative Resolution of the Supreme Court of the Republic of Kazakhstan of 19.01.2018
6. According to Article part two 47 GPK in the cases provided by legal acts the organizations, not being legal entities (for example, according to Article 286 GPK - territorial election commission) can be party litigants also.
It is necessary to understand as the foreign organizations the legal entities (the companies, firms, the organizations, etc.) created according to the legislation of the corresponding foreign state outside the Republic of Kazakhstan. The legal entities, including the joint businesses and the companies which are completely belonging to the foreign investor formed in the Republic of Kazakhstan according to its legislation the foreign organizations are not.
7. In the cases provided by subitems 1), 3), 4), 5) of Article part two 34 GPK, case referral from production of one court in production of other court is made based on the determination of court which took legal effect. Private claims of the parties to such determinations are considered by Appeal Court.
In the presence of the basis provided by the subitem 2) of Article part two 34 GPK the judge of superior court solely, without informing persons participating in case on the place and time of consideration of the case, takes out determination about jurisdiction of the case to specific court.
In case of dispute between courts on cognizance of specific the judge of superior court put, without informing persons participating in case on the place and time of its consideration, and, without canceling determination of court about the direction of case in production of other court, takes out determination about jurisdiction of the case to specific court.
Determination of Appeal Court and determination of the judge of superior court concerning cognizance are not subject to appeal, protest.
8. In court their legal representatives and persons specified in the power of attorney can represent interests of claimants and defendants (representatives according to the order).
The paragraph two is excluded
Those from the legal proceedings provided by Article part one 60 GPK which the representative has the right to make in court on behalf of the principal shall be listed in the power of attorney of the representative.
If in the power of attorney issued to the representative its specific powers are not called, then the representative has the right to make legal proceedings (to get acquainted with case papers, to do of them statements, to declare petitions, to give explanations on the substance of dispute, etc.), except those on which making according to Article 60 GPK powers shall be conferred to it.
The order issued by legal advice bureau or firm of solicitors grants to the lawyer the right to represent the interests of person in court (to get acquainted with case papers, to do of them statements, to declare petitions, to give the explanation on the substance of dispute, etc.) who asked for legal aid, but does not replace the power of attorney and does not grant to the lawyer the right to making of the legal proceedings provided by Article part one 60 GPK.
9. The court should specify proof subject as in stage of preparation of case for legal proceedings, and in proceedings on the reference in essence.
In case of assessment of proofs and the solution of question of release of the parties from proof courts should consider the regulations containing in Article part nine 73, of part two of Article 79 and part eight of Article 82 GPK.
According to Articles 63, of 64, of 65, of 66, of 67, of 68, of 69, of 70, of 71, of 72, 73 GPK courts need to mean that only those proofs which have a direct bearing on matter in issue shall be researched in judicial session and in the set are sufficient for establishment of the facts of the case, confirmation or confutation of arguments of the parties on the substance of dispute.
The facts of the case which under the law shall be confirmed with certain proofs (for example, the agreement if there is dispute over essential terms of transaction) cannot be confirmed by any other proofs.
10. According to Article 158 GPK of determination of courts about application of the measures for providing the claim called in Article part one 156 GPK are subject to immediate execution according to the procedure, provided for execution of judgments.
about seizure of the money, other property of the defendant which is stored in bank or the organization performing separate types of banking activities are performed directly by bank or such organization;
about taking measures of providing the claim, provided by subitems 2), 3), 4), 6) Article parts one 156 GPK, are performed by delivery under list to person obliged to refrain from the actions specified by court as measures for providing the claim;
about acceptance of the measure of providing the claim provided by the subitem 5) of Article part one 156 GPK are performed by state body, the organization or the official who issued the disputed act. If the appealed act is published by mass media, then determination of court about suspension of operation of such act is subject for publication at the expense of the claimant in the future issue of mass media.
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