Comments on article 48. Change of the basis or subject of the claim, waiver of the claim, recognition of the claim, settlement agreement, agreement on dispute settlement (conflict) in mediation or agreement on dispute settlement in accordance with the participatory procedure of the Civil Procedure Code of the Republic of Kazakhstan
1. The plaintiff has the right to change the basis or subject of the claim, to increase or decrease the amount of claims or to withdraw the claim, the defendant has the right to recognize the claim, the parties may end the case by an amicable agreement or an agreement on the settlement of a dispute (conflict) through mediation or an agreement on the settlement of a dispute through a participatory procedure according to the rules provided for in articles 169, 170, 171 and Chapter 17 of this Code.2. The court may not, on its own initiative, change the subject matter or the basis of the claim. The court does not accept the plaintiff's rejection of the claim, recognition of the claim by the defendant, and does not approve an amicable agreement between the parties or an agreement between the parties on the settlement of a dispute (conflict) through mediation or an agreement on the settlement of a dispute through a participatory procedure if these actions contradict the law or violate someone's rights, freedoms and legitimate interests.3. In the event of a change in the basis or subject of the claim, an increase or decrease in the amount of the claims, the time period for consideration of the case shall be calculated from the date of the initial claim.1. The commented article regulates the procedure for performing administrative actions by the parties, the right to commit which belongs exclusively to these persons.The basis of a claim is evidence confirming the circumstances on which the plaintiff bases his claims.The subject of the claim is determined by the plaintiff's claims against the defendant.The plaintiff has the right to change the basis or subject of the claim, since their changes together may lead to a new claim, with the exception of the cases provided for in the second part of Article 169 of the CPC. The court has no right to change the subject or the basis of the claim.A waiver of a claim may be filed orally or in writing.
The recognition of a claim is an unconditional consent of the defendant addressed to the court with the material and legal requirements of the plaintiff, expressed in the form prescribed by the procedural law.A settlement agreement is a bilateral (multilateral) transaction between the plaintiff and the defendant that defines the content of a disputed or court-established legal relationship or contains the terms on which the disputing entities settle a substantive dispute among themselves.Conditions and procedure for conducting conciliation procedures (conclusion of an amicable agreement, settlement of a dispute (conflict) through mediation; dispute settlement by way of a participatory procedure) is regulated by the norms of Chapter 17 of the CPC.2. The court does not accept the waiver of the claim, the recognition of the claim by the defendant, and does not approve the settlement agreement or the agreement of the parties on the settlement of the dispute (conflict) through mediation, or the agreement on the settlement of the dispute through a participatory procedure, if this:1) it contradicts the law, that is, it violates mandatory norms that establish a strictly defined rule of conduct or some kind of restriction; 2) violates the rights and legitimate interests of third parties.3. In the event of a change in the basis or subject of the claim, an increase or decrease in the amount of claims, the duration of the procedural period for consideration of the case is calculated from the date of the initial claim.A change in the basis or subject of a claim, an increase or decrease in the amount of claims may be carried out by the plaintiff in accordance with the first part of Article 169 of the CPC.
Additional comment
3. The third part of Article 48 of the CPC establishes the general rule on the beginning of the term of consideration of the case, since the preparation of the case for trial is not always carried out (hereinafter referred to as preparation). In accordance with the requirements of Article 164 of the CPC, preparation is carried out within fifteen working days from the date of acceptance of the statement of claim in court proceedings, unless otherwise established by the CPC and other laws. If the CPC does not provide for preparation, then the term begins from the moment the claim is filed. In the case of preparation in accordance with Chapter 16 of the CPC, the duration of the preparation period is calculated from the date of acceptance of the statement of claim, and the time limit for consideration of this case is calculated from the date of completion of the preparation within two months. It is possible to change the subject of the claim before the preparation is completed, or before the court is removed to the conference room, if there is no need for additional procedural actions. In the case of preparation in accordance with the procedure established by Chapter 16 of the CPC, the time limit for consideration of the case is calculated from the moment of completion of preparation for the initially filed claim.
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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