Comments to Article 424. Powers of the Court of Appeal of the Civil Procedure Code of the Republic of Kazakhstan

The court of appeal may:

1) leave the decision unchanged, and the complaint or protest without satisfaction;

2) to change the decision of the court of first instance;

3) cancel the decision of the court of first instance and make a new decision;

4) cancel the decision in whole or in part and terminate the proceedings on the case, or leave the application without consideration on the grounds provided for in article 277 and sub-paragraphs 2), 3), 4), 5), 9) and 10) Articles 279 of this Code;

5) to reverse the decision and send the case for a new hearing to the court of first instance in the event of violations of the rules of procedural law provided for in subparagraphs 1), 3), 4) and 5) of the fourth part of Article 427 of this Code.;

6) to take the case into its own proceedings for consideration on the merits according to the rules of the court of first instance in case of cancellation of the court's decision on the grounds provided for in subparagraph 2) of the fourth part of Article 427 of this Code.

This article defines the powers of the court of appeal, which can be implemented based on the results of the review of judicial acts of the court of first instance in the appeal proceedings.

The court of appeal has the right to leave the decision unchanged, and the complaint or protest without satisfaction, subject to the legality and validity of the appealed decision; has the right to reverse the court's decision and make a new decision; also to reverse the decision in whole or in part with the termination of the proceedings or with the abandonment of the application without consideration; to reverse the decision and send the dispute for a new hearing to the court of the first instance; to take the case into its own proceedings for consideration on the merits in case of cancellation of the decision of the court of first instance. The decision of the court of first instance is subject to cancellation or amendment, first of all, in the event of a significant violation of the norms of substantive or procedural law, which led or could have led to the adoption of an incorrect decision. Such grounds are listed, in particular, in Article 427 of the CPC.

In addition, the circumstances by virtue of which the proceedings in a civil case in court are to be terminated or the statement of claim is to be left without consideration, are also grounds for the cancellation of the decision of the court of first instance with the appropriate termination of the proceedings or with the abandonment of the claim without consideration. This provision is provided for in subparagraph 4) of the commented article for the cases specified in article 277 and sub-paragraphs 2), 3), 4), 5), 9) and 10) Articles 279 of the CPC.For example, the reason for termination of proceedings in a civil case in a court of appeal may be that the case is not subject to consideration in civil proceedings. The court may come to such a conclusion if the dispute does not fall within the jurisdiction of the court, as well as in the case when the claim stated in the claim cannot be recognized as a remedy either by virtue of the general principles of civil legislation, for example, Articles 9, 10 of the Civil Code, or by virtue of other provisions of regulatory legal acts and other sources of law. Due to the fact that subparagraph 4) of the commented article does not contain a reference to subparagraphs 1), 6), 8) of Article 279 of the CPC, it follows that the court makes a decision on the case in case of non-compliance with the mandatory pre-trial dispute settlement procedure, as well as in case of repeated failure of the plaintiff to appear in court, his application the return of the claim is not a reason for the cancellation of the court decision.

Subparagraph 5) of Article 424 of the CPC provides for the authority of the court of appeal to refer a civil case for a new hearing to the court of first instance in the event of violations specified in the subparagraphs during its consideration. 1), 3), 4), 5) of the fourth part of Article 427 of the CPC (consideration of the case in an illegal composition of the court or in violation of the rules of jurisdiction violation of the rules on the language of legal proceedings; resolution of the issue of the rights and obligations of persons not involved in the case; absence of the signature of the judge who reviewed the case in the decision).

The court of appeal has the right in a separate case to reverse the decision of the court of first instance, accepting the case for its consideration on the merits according to the rules of the court of first instance. The basis for such a decision is the consideration of the case by the court of first instance in the absence of any of the persons participating in the case who were not properly notified of the time and place of the court session (subparagraph 6) of Article 424 of 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

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