Comments on article 202. Explanations of the persons participating in the case and the establishment of the procedure for examining evidence of the Civil Procedure Code of the Republic of Kazakhstan

1. The court hears the explanations of the plaintiff and a third party participating on his side, their representatives, as well as the defendant and a third party participating on his side, their representatives.The persons who have filed a claim in accordance with the third part of Articles 54 and 55 of this Code in the interests of the plaintiff, provide explanations on the circumstances of the case and provide evidence first.The persons participating in the case have the right to ask each other questions in the order and priority established by the presiding judge. The number of questions asked cannot be limited, but the chairman has the right to remove questions that are not related to the subject of the dispute and the circumstances on which the plaintiff's claims and the defendant's objections are based.

2. Written explanations of the persons participating in the case who did not appear at the court session for valid reasons, as well as evidence obtained in accordance with the procedure provided for in Articles 69, 71, 74, 75 of this Code, shall be announced by the presiding judge and examined at the court session.

3. After hearing the explanations of the persons participating in the case, the court, taking into account their opinions, establishes the procedure for examining other evidence.

4. Explanations of the persons participating in the case may be obtained, and evidence examined by the court by means of videoconferencing through the court at the location of these persons or evidence.

1. The norms of the commented article fix the sequence of the court's receipt of explanations from the persons involved in the case, the observance of which, taking into account the equality of the parties, is mandatory.Although the title of the article speaks about receiving explanations from the persons involved in the case and establishing the procedure for examining evidence, the examination of evidence begins from the very beginning of the procedural actions in accordance with the norms of the commented article. This is due to the fact that the explanations of the parties and third parties are also means of proof in a civil case (part two of Article 63 of the CPC).The norms of the commented article emphasize the position of the plaintiff as an active party to the process, therefore, the plaintiff is given the floor first. The operation of the adversarial principle implies the full realization by the parties of their capabilities to prove the circumstances on which they substantiate their claims and objections to the claim. As a result, after the plaintiff's speech, a third party participating on his side is given the opportunity to speak. The procedural legislation does not limit the speech of the parties and third parties to any criteria. Both the party itself and the third party and their representatives may speak, and both the parties themselves and third parties, as well as their representatives, are allowed to speak.At the same time, the court's leadership role may also be manifested. If there is a duplication of what has been said, the parties state facts that are not relevant to the resolution of the case, then the court has the right to make comments to the parties on this matter.After the conclusion of the plaintiff's speech, the same opportunities for speech are provided to the defendant and the third party participating on his side.If a case is initiated in defense of other people's rights by the prosecutor or the bodies and persons specified in Article 55 of the CPC, these persons are the first to give explanations. After them, the floor should be given to the person in whose interests the claim is filed, which follows from the meaning of the norms of part four of Article 54, part four of Article 55, paragraph two of the commented part of the CPC article.It should be borne in mind that according to the claim of a third party making independent claims on the subject of the dispute (Article 51 of the CPC), depending on the circumstances of the case, either the plaintiff or the defendant act as defendants. In some cases, both parties may act as defendants in relation to a third party making independent claims on the subject of the dispute.In the part not regulated by the norms of the CPC, the court has the right to direct the course of the court session and make independent procedural decisions.The evaluation of the explanations of the parties and third parties as means of proof determines the existence of a special rule in the third paragraph of the commented part of the article concerning the study of evidence obtained by explaining the parties and third parties. The persons involved in the case get the opportunity to ask each other questions. The order and order of such matters will be determined by the court.Within the meaning of this rule, the exercise of the right of persons participating in a case to ask questions to each other depends on the decision of the presiding judge in the courtroom. Otherwise, it will be a violation of order in the courtroom.The number of questions to be asked may not be limited, while the chairman has the right to remove questions that are not related to the subject of the dispute and the circumstances on which the plaintiff's claims and the defendant's objections are based.

2. Before establishing the procedure for examining other evidence, if written explanations are submitted by the persons participating in the case who did not appear at the court session for valid reasons, these explanations shall be announced by the presiding judge and examined at the court session. The evidence obtained in accordance with Articles 69, 71, 74, 75 of the CPC is examined in the same manner.

3. After all these actions have been performed, the court, taking into account the opinions of the persons participating in the case, establishes the procedure for examining other evidence. As a result, the sequence of actions for examining evidence provided for in Articles 203-215 of the CPC should be perceived as recommendatory. First of all, it is necessary to pay attention to the substantive part of the requirements established by the norms of these articles concerning the procedure for examining individual evidence.

4. The novelty of the current civil procedure legislation is that it recognizes that it is legitimate to receive explanations from persons involved in a case by videoconference without appearing in court at the location of these persons.The use of videoconferencing tools in the examination of evidence should not violate the requirements for the presentation of evidence. For example, the procedure for providing written evidence (part five of Article 100 of the CPC).The explanations of the parties and other persons in the case of consideration of the case in real time using videoconferencing are heard in accordance with the procedure established by the court.

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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