Comments to article 152. Return of the statement of Claim of the Civil Procedure Code of the Republic of Kazakhstan

1. The judge returns the statement of claim if:1) the plaintiff has not complied with the pre-trial dispute settlement procedure established by law for this category of cases or stipulated by the parties' agreement and the possibility of applying this procedure has not been lost; 2) the case is not within the jurisdiction of this court; 3) the statement of claim does not comply with the requirements of Article 148, subitems 1), 2), 3) and 5) of the first part of the article 149 of this Code and it will be established that it is impossible to eliminate deficiencies at the stage of preparing the case for trial; 4) the application is filed by an incapacitated person; 5) the application is signed by a person, who do not have the authority to sign it or present it; 6) in the proceedings of the same or another court or arbitration, there is a dispute between the same parties, on the same subject and on the same grounds; 7) an agreement has been concluded between the parties in accordance with the law on the transfer of this dispute to arbitration, unless otherwise is not provided for by law; 8) the body authorized to manage communal property has applied to the court for recognition of the right of communal ownership of an immovable thing before the expiration of one year from the date of acceptance of this thing by the body, state registration of the right to immovable property, with the exception of the case specified in paragraph 3 of Article 242 of the Civil Code of the Republic of Kazakhstan; 9) the plaintiff has declared the return of the statement of claim filed by him.

2. On the return of the statement of claim, the judge issues a ruling in which he indicates which court the person should apply to if the case is beyond the jurisdiction of this court, or how to eliminate the circumstances preventing the initiation of a civil case. The ruling must be issued within five working days from the date of receipt of the statement of claim to the court and handed over or sent to the plaintiff with all attached documents.3. The return of the statement of claim does not prevent the plaintiff from filing a lawsuit against the same defendant again, on the same subject and on the same grounds, if they eliminate the violation.4. The court's ruling on the return of the statement of claim may be appealed or appealed to the court of appeal, whose decision is final.The commented article contains a list of grounds for returning the statement of claim. 

1. The return of a statement of claim shall be made by a judge upon establishing the circumstances provided for in Article 152 of the CPC.1) The reason for the return of a statement of claim is non-compliance with the pre-trial dispute settlement procedure established by law for this category of cases or provided for by the parties' agreement, and when the possibility of applying this procedure has not been lost. Subitems 6) of Article 148 of the CPC and 5) of Article 149 of the CPC provide for the need to indicate relevant information in the statement of claim and the attachment of a supporting document. This condition follows from the rules of mandatory or conditional jurisdiction of cases, according to which a dispute over a right must be resolved in court after it has been reviewed by another body or measures have been taken to resolve the dispute out of court (comment to subparagraph 6) of Article 148 of the CPC).The absence of data on compliance with the procedure for pre-trial dispute settlement in the statement of claim and the appendix to the statement, when such an order is provided for by law or contract, is an independent basis for returning the application to the plaintiff. At the same time, it is not always possible to determine whether a pre-trial settlement of a dispute is mandatory, or whether such a procedure is provided for in the contract due to the lack of information about it. If the party became aware of this omission during the preparation of the case for trial or during the trial, the statement of claim must be dismissed without consideration in accordance with Article 279 of the CPC.2) When deciding whether to accept a statement of claim for court proceedings, the judge is guided by the rules of jurisdiction established by Chapter 3 of the CPC, since the basis for returning the statement of claim is the lack of jurisdiction of the case to this court. As practice shows, there are issues related to the return of an application due to an incorrect determination by the court of the jurisdiction of the case. For example, a statement of claim cannot be returned if it is presented to an organization at the location of a branch or representative office, rather than at the location of the organization itself. According to the third part of Article 30 of the CPC, a claim arising from the activities of a branch or representative office of a legal entity may also be filed at the location of the branch or representative office (see commentary to the third part of Article 30 of the CPC).If there are doubts about the jurisdiction of the statement of claim, it is advisable to accept the application for court proceedings and, subsequently, resolve this issue during the preparation of the case for trial or at a court hearing. In the ruling on the return of the application due to the lack of jurisdiction of the case, the judge indicates which court the plaintiff should apply to.3) The grounds for return are non-compliance with the requirements of Article 148 of the CPC (form and content of the statement of claim), sub-paragraphs 1), 2), 3), 5) Article 149 of the CPC (the application does not include a document confirming its referral to the defendant; a document confirming payment of the state fee; a power of attorney or other document certifying the authority of the representative; documents on the pre-trial settlement of the dispute).

It also states that the application must be returned if it is determined that it is impossible to remedy the deficiencies at the stage of preparing the case for trial. Consequently, not all the shortcomings of the statement of claim are an independent basis for its return. Non-payment of the state fee upon filing a claim with the court prevents the initiation of a civil case, and therefore is an unconditional basis for its return. An exception may be the cases provided for in the first part of Article 105 of the CPC, when the plaintiff is exempt from paying state duty, when it is difficult to determine the price of the claim, when the plaintiff has the right to defer payment of state duty. This should be indicated in the statement of claim or the petition attached to the application. This issue is resolved at the stage of preparing the case for trial. The judge returns the application even if it is signed by a representative of the plaintiff (applicant) without the attachment of documents confirming his authority (see comment to subparagraph 3) of the first part of Article 149 of the CPC, Articles 60, 61 of the CPC).It seems that the grounds provided for in subparagraph 1) of Article 149 of the CPC can be eliminated when preparing the case for trial and are considered as grounds for return in conjunction with other grounds. Thus, the party may be acquainted with the application and the documents attached to it in court, where the judge may also oblige the plaintiff to submit the necessary materials to the defendant (subparagraph 15) of Article 165 of the CPC). 4) The statement of claim is subject to return if it is filed by an incapacitated person. When clarifying the civil procedural capacity of the person who submitted the application, the judge is guided by the requirements of the legislation. The incapacity of an adult is confirmed by a judicial act that has entered into legal force. In the ruling, the judge indicates the possibility of applying to the court by the guardian of the incapacitated person, and in case of his absence, the application may be submitted by the body performing the functions of guardianship and guardianship, or by the medical institution, which is treating the incapacitated person.5) If the statement of claim is signed by a person who does not have the authority to sign or present it, it is subject to return. This provision is consistent with the indication in subparagraph 3) of this article of the need to attach to the application documents confirming the authority of the representative. If the application is signed by the proper plaintiff, the court has no reason to return the application, due to the fact that it was filed with the court by another person who does not have a power of attorney to file the application with the court. This means that the person filing the application on behalf of the represented person must have the appropriate authority to conduct the case and sign the statement of claim, only in this case the person has the right to apply to the court on behalf of and in defense of the rights of the represented person. Persons who can be representatives in court, as well as persons who cannot be representatives in court, are specified in Articles 57, 58, 59 of the CPC. The judge returns the statement of claim filed by a person who cannot be a representative in court due to the prohibition established by law, despite the presentation of a duly executed authority.6)-7) The conditions for the return of a statement of claim are cases when: in the proceedings of the same or another court or arbitration, there is a dispute between the same parties, on the same subject and on the same grounds; when an agreement has been concluded between the parties in accordance with the law on the transfer of the dispute to arbitration, unless otherwise provided by law.8) The basis for returning the application is if the body authorized to manage communal property has applied to the court for recognition of the right of communal ownership of an immovable thing before the expiration of one year from the date of registration of this thing by the body carrying out state registration of the right to immovable property, with the exception of the case specified in paragraph 3 of Article 242 of the Civil Code.

So, after one year from the date of registration of an ownerless immovable property, the local executive body applies to the court with a request to recognize this thing as having entered communal ownership. If the owner renounces the right of ownership by announcing this, the local executive body applies to the court with a demand to recognize this thing as having entered communal ownership from the moment of the announcement of the refusal. It should be borne in mind that ownerless immovable things owned by citizens or non-governmental legal entities that own such property as their own cannot be registered and transferred to communal ownership. If an application is filed with respect to a thing that is movable property, the issue of recognizing the movable thing as ownerless is raised. The requirements for the content of such statements are provided for in Articles 356, 357 of the CPC.

9) The statement of claim is subject to return, if the plaintiff has stated this.If you declare this by accepting a request for a declaration of proceedings to initiate a civil case, the application with all attached documents is returned to the plaintiff. If the plaintiff has declared the return of the application after the initiation of a civil case, it must be dismissed without consideration in accordance with Article 279 of the CPC, while the document on payment of the state fee in the original remains in the case file in court. The reasons given in the first part of the commented article are not exhaustive. Thus, the judge returns the application in accordance with the first part of Article 138 of the CPC; if the spouse, without the consent of the spouse, submits an application for divorce during the spouse's pregnancy and within a year after the birth of the child; in accordance with the first part of Article 250 of the CPC, which regulates that a complaint against the actions (inaction) of the bailiff is filed with the court within ten working days from the date of such action or from the day when the recoverer or the debtor, who was not notified of the time and place of the action, became aware of it. A petition for reinstatement of the missed deadline must be attached to such a complaint.

2. Upon the return of the application, the judge, within five working days from the date of its receipt to the court, issues a ruling, which must be handed over or sent to the person with all the attached documents. The definition specifies how to eliminate the circumstances preventing the initiation of a civil case.

3. The return of a statement of claim on any of the listed grounds does not prevent a person from suing the same defendant again, on the same subject and on the same grounds, provided that the deficiencies are eliminated. Thus, the return of the statement of claim, unlike the refusal to accept it, is not an obstacle to re-applying to the court with an identical claim.

4. The judge's ruling on the return of the statement of claim may be appealed or protested in accordance with the procedure established by the CPC. 

LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

Astana, 2016

UDC 347 (574)  

By 63

ISBN 978-601-236-042-4

 Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases