of June 25, 2010 No. 1
About practice of removal by courts of private determinations on civil cases
For the purpose of uniform application of regulations of the Code of civil procedure of the Republic of Kazakhstan by courts in case of removal of private determinations, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:
1. The private determinations which are taken out according to the procedure, stipulated in Clause 270 Codes of civil procedure of the Republic of Kazakhstan (further - GPK), are acts of response of courts to legality violation cases.
2. The bases for removal of private determinations are the legality violation cases revealed in judicial session.
It is necessary to understand acts which do not conform to requirements of regulatory legal acts as violation of legality.
Inadequate accomplishment by persons participating in case, procedural obligations on proof cannot form good cause for removal of private determinations.
3. Courts take out private determinations to the organizations, the official and other persons performing managerial functions.
Officials persons are recognized, it is permanent, temporary or on special power the performing functions of the public agent or the performing organizational and administrative functions or administrative functions in state bodies, local government bodies, and also in Armed Forces, other troops and military forming of the Republic of Kazakhstan.
It is necessary to understand heads of executive bodies of commercial and non-commercial legal entities as the other persons performing managerial functions.
4. Private determination is taken out by court in the consultative room in the form of the separate procedural document along with court resolution on case in point.
5. Content of private determination shall conform to requirements of Article 269 GPK taking into account nature of the permitted cases and the allowed legality violations.
In motivation part of private determination arguments on which the court came to conclusion about the allowed legality violations shall be stated, the essence of the allowed violations is opened, specific regulatory legal acts which requirements are violated, and also persons whose actions (failure to act) led to legality violation are specified.
Private determination shall not contain specific instructions or offers concerning activities of persons whose interests it concerns, in it the type and measures of legal responsibility of perpetrators are also not established.
In substantive provisions of private determination the name and the location of the organizations shall be specified, and also to be explained Article part two provisions 270 GPK about effects of non-execution, leaving without answer or the untimely answer by private determination, about the right and procedure for appeal of private determination.
6. The taken-out private determination is disclosed in court session on case in point.
7. According to Article part one 270 GPK of the organization, the official and other persons performing managerial functions shall report from the date of receipt of private determination to courts about the measures taken on it in a month.
8. In case of leaving of private determinations without consideration or rejection of measures for elimination of the violations of the law specified in them, and also the untimely response to private determinations without valid excuse, courts have the right to bring officials to the administrative responsibility under article 664 of the Code of the Republic of Kazakhstan about administrative offenses.
Imposing of administrative punishment does not exempt the corresponding officials from duty to inform to court about the measures taken by private determination.
9. If the court did not take out private determination, despite availability and sufficiency of the bases for its removal, the subsequent degree of jurisdiction, checking legality of court resolution, has the right to take out private determination according to the procedure, stipulated in Clause 270 GPK.
10. Private complaints can be made about private determinations, are brought the petition by the prosecutor or protests in the procedure established by the law.
If persons whose rights and legitimate interests are infringed by private determinations, did not participate when considering the case, did not know about the private determinations which are taken out in their address and (or) passed the appeal term established by the law, they also have the right to appeal private determinations.
11. Cancellation of court resolution does not attract cancellation of the taken-out private determination, except cases when the legality violation specified in private determination is not established.
According to Item 3 of article 4 of the Law of the Republic of Kazakhstan "About fight against corruption" judges bear responsibility for making of corruption offenses on the bases and according to the procedure, provided by the Constitution and the laws of the Republic of Kazakhstan.
In case of detection of signs of criminal offense in actions of the parties, other participants of process, official and other persons, courts are reported about it to prosecutors.
13. No. 6 is excluded according to the Normative Resolution of the Supreme Court of the Republic of Kazakhstan of 29.12.2012
14. Recognize invalid:
1) paragraphs two and third Item 30 of the resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan of December 22, 2000 No. 16 "About practice of application by courts of the legislation on environmental protection";
2) Item 20 of the normative resolution of the Supreme Court of the Republic of Kazakhstan of December 22, 2000 No. 17 "About some questions of application by courts of the legislation on scrap and family by hearing of cases about adoption (adoption) of children" (with changes and additions made by normative resolutions of December 25, 2006 No. 10 and of December 22, 2008 No. 14);
3) Item 21 of the normative resolution of the Supreme Court of the Republic of Kazakhstan of July 16, 2007 No. 6 "About some questions of application by courts of the land legislation".
15. According to article 4 of the Constitution of the Republic of Kazakhstan this normative resolution is included the law in force, and also is obligatory and becomes effective from the date of official publication.
Chairman of the Supreme Court of the Republic of Kazakhstan
Judge of the Supreme Court of the Republic of Kazakhstan, secretary of plenary meeting
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