Comments on article 407. Return of the appeal, protest of the Civil Procedure Code of the Republic of Kazakhstan
1. An appeal or protest is returned to the person who filed it in the following cases::
1) failure to comply with the instructions of the judge in the ruling on leaving the complaint or protest without movement within the prescribed period;
2) at the request of the person who filed the complaint or protest; 3) if the time limit for appealing or protesting has expired and the complaint or protest does not contain an application for reinstatement or refusal to reinstate it; 4) if the complaint or protest is filed by a person who does not have the right to file or sign it.
2. A ruling on the return of an appeal or protest shall be issued by the court no later than five working days.:
1) in the case provided for in subparagraph 1) of the first part of this Article, - from the date of expiry of the time limit established by the court.;
2) in all other cases - from the date of receipt of the complaint or protest. A ruling on the return of an appeal or protest may be appealed or protested.
1. The commented article establishes the grounds for the court of first instance to return an appeal or protest. These are: failure to comply with the observations specified in the judge's ruling on leaving the complaint or protest without movement within the prescribed period; request of the person who filed the complaint or protest; missing the deadline for appeal or protest and the absence of an application for its restoration or refusal to restore such period; filing a complaint or protest by a person who does not have the right to file it or signing. It should be noted that the list of grounds for returning an appeal or protest, indicated in the first part of the commented article, is not exhaustive. The law, in part two of Article 409 of the CPC, provides an additional basis for returning a complaint or protest.
2. From the meaning of the provisions of Articles 405-407 of the CPC, it can be concluded that the return of an appeal or protest based on the above articles of the CPC is carried out by the court of first instance. At the same time, the question arises about the possibility of returning the appeal or protest by the court of appeal. Attention should be paid to the content of Article 425 of the CPC, which defines the forms of judicial acts of the court of appeal and the grounds on which they can be rendered. The provisions of this article of the CPC do not explicitly provide for the possibility of a court of appeal returning an appeal in the event of its withdrawal. However, subparagraph 2) of Article 425 of the CPC states that the ruling of the court of appeal may take place in other cases requiring the issuance of a judicial act, when the case was not considered on its merits. Thus, this provision of the law leaves open the list of cases when the court of appeal may issue its own act in the form of a ruling.At the same time, given the general object of regulation of procedural issues specified in Article 407 of the CPC, the relationship between the various grounds for returning an appeal, protest, as well as the possibility of appealing such an action by the court, it should be assumed that the commented article refers to the powers of the court of first instance.
LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN
Astana, 2016
UDC 347 (574)
By 63
ISBN 978-601-236-042-4
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