Comments on article 196. Consequences of non-appearance at the court session of the persons participating in the case and representatives of the Civil Procedure Code of the Republic of Kazakhstan

1. The persons participating in the case are obliged to notify the court in advance of the reasons for non-attendance at the court session and provide evidence of the validity of these reasons.

2. In case of non-appearance at the court session of any of the persons participating in the case, in respect of whom there is no information about their proper notification, the trial of the case is postponed.

3. If the persons participating in the case are duly notified of the time and place of the court session, the court shall postpone the hearing of the case only if the reason for their non-appearance is recognized as valid.

4. The court has the right to consider the case in case of non-appearance of any of the persons participating in the case, duly notified of the time and place of the court session, if it recognizes the reasons for their non-appearance as disrespectful.

5. The court has the right to consider the case in absentia on the grounds provided for in Article 256 of this Code.6. The parties have the right in writing to request the court to consider the case in their absence and send them a copy of the decision.

7. The non-appearance of a representative of the person participating in the case, notified of the time and place of the court session, is not an obstacle to the consideration of the case. The court may postpone the hearing of the case at the request of the plaintiff, the defendant or a third party due to the failure of his representative to appear at the court session for a valid reason.

1. The consequences of non-attendance at a court hearing of persons participating in the case and representatives provided for in the commented article depend on two circumstances: a) whether there is information about their notification and b) the reasons for non-attendance. The new civil procedure legislation imposes on the parties the obligation to exercise their rights in good faith (see commentary to art. 194 of the CPC).In general, the legislator adheres to a negative attitude towards unscrupulous participants in the process. May apply certain sanctions to them, which will encourage the participants in the process to refrain from unfair actions, including delaying the process (part one of Article 109, Article 114 of the CPC). Accordingly, the participants in the process will be encouraged to properly perform their procedural duties and comply with the conditions for exercising their procedural rights.The norm of the first part of the commented article contributes to the implementation of procedural requirements for the conscientious performance of one's procedural duties. The persons participating in the case are given the right not to appear at the court session, however, the condition is to notify the court in advance. This will ensure the rights and interests of other persons involved in the case and postpone the consideration of the case. An essential requirement will be the presence of valid reasons for non-appearance in court, otherwise non-appearance will be assessed as an element of unfair behavior of the person involved in the case in the civil process.For this reason, the norms of parts two to seven of the commented article should be considered as certain criteria for assessing the integrity of the conduct of the participants in the process, on the other hand, criteria for assessing the possibility of conducting a proper trial in the absence of any of the persons involved in the case.

2. In the absence of information about the notification of the persons participating in the case, the court must postpone the hearing of the case, set the time and place of the next court session and notify all persons participating in the case, including those who did not appear, in accordance with the established procedure.

3. Failure of persons participating in the case to appear in court duly notified of the time and place of the court session for valid reasons (illness, business trip, natural disaster, etc.) is the basis for postponing the trial of the case.4. If the reasons for the non-appearance of the persons participating in the case, duly notified of the place and time of the court session, are disrespectful, the court has the right to consider the case without their participation. The norm of the fifth part of the commented article supplements the requirements of the commented part in relation to the parties.

5. The norms provided for in parts five and six of the commented articles are more highly specialized and apply only to the parties to civil proceedings. In particular, part five of the commented article focuses on the consequences of the defendant's (defendants') failure to appear at the court hearing. In this case, reference regulation is applied. In the case where there are grounds provided for in Article 256 of the CPC, the court has the right to consider the case in absentia.The general rule is that if the defendant fails to appear at the court session, is duly notified of the time and place of the meeting, has not informed about the valid reasons for non-appearance and has not asked for consideration of the case in his absence, the case may be considered in absentia, if the plaintiff does not object to this.If the court finds it inappropriate to consider the dispute in absentia, then it may not be carried out even if the plaintiff requests it.

6. The parties have the right in writing to request the court to consider the case in their absence and send them a copy of the decision. It is assumed that the parties are aware of the possible negative consequences and risks of their non-participation in the competitive process.

7. Part seven of the commented article regulates in general the legal consequences of the failure to appear in court of persons participating in the case, notified of the time and place of the court session. The non-appearance of these persons is not an obstacle to the consideration of the case. At the same time, at the request of the circle of persons indicated in it (parties and third parties), if their representatives fail to appear at the court session for a valid reason, the court has the right to postpone the hearing of the case.Three conditions can be distinguished. Firstly, we are talking specifically about the non-appearance of representatives of the applicant. Granting the parties and third parties the right to request the adjournment of the case in this regard is due to the fact that the representative is usually a professional legal entity, without whom the person involved in the case cannot independently exercise their procedural rights at the proper level. Secondly, the reasons for non-attendance must be valid. Thirdly, the condition is a positive decision of the court, which will consider the arguments of the petitioner sufficient to postpone the case.Otherwise, it is necessary to be guided by the general norm of the commented part of the article. The persons involved in the case should be aware of the legal consequences of representation based on trust. The negative consequences of a representative's failure to perform his duties in court will be borne by the person involved in the case (party, third party).

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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