Comments on article 63. Evidence of the Civil Procedure Code of the Republic of Kazakhstan

1. Evidence in a case is legally obtained information about the facts, on the basis of which the court establishes the presence or absence of circumstances justifying the claims and objections of the parties, as well as other circumstances relevant to the proper consideration and resolution of the case.2. Information about the facts can be obtained from explanations of the parties and third parties, witness statements, expert opinions, physical evidence, protocols of procedural actions, minutes of court sessions, audio and video recordings, data obtained through the use of videoconferencing systems reflecting the course and results of procedural actions, and other sources.1. This article contains: definition of the concept of evidence and its requirements; the content of the subject of proof; the means of proof (or sources of evidence).1.1. The law defines evidence in a case as certain information about facts. Previously, article 64 of the CPC defined evidence as "factual data." With regard to the criminal procedure, the opinion is expressed that replacing the words "factual data" with the words "information" means that evidence is not only the information whose reliability has already been established, but all the information that is collected, verified and evaluated both in pre-trial proceedings and in court.Information refers to news, messages, and knowledge. The content of the information reflects the actual circumstances of the case. Fact (Latin Factum - accomplished) is a term in a broad sense that can act as a synonym for truth; an event or result; real, not fictional; concrete and singular as opposed to general and abstract____________________23 Putin's P.A. Evidence and evidence in a new criminal trial //The Russian justice system. 2002. No. 7. 24 Explanatory dictionary of the Russian language //http://tolkslovar.ru/s2015.html

Information that is evidence must simultaneously meet two requirements: it must be obtained legally; it must reflect the factual circumstances relevant to the case.

1.2. The requirement for a lawful method of obtaining evidence is based on the principle of application of the law established by subparagraph 9) of paragraph 3 of Article 77 of the Constitution that evidence obtained by illegal means has no legal force.The legality of obtaining evidence is determined by two points:1) evidence may be obtained only by means of means of proof directly specified in the law, listed in part two of this article; 2) evidence must be obtained in accordance with the procedure provided for by the CPC. For example, the testimony of a witness can only be obtained by questioning him by the court considering the case, or by another court executing a court order to interrogate the witness. The testimony presented in any other way, including in writing and/or certified by a notary, is not the testimony of a witness.Violation of the procedure for obtaining information in accordance with subparagraph 5) of the first part of Article 66 of the CPC entails their inadmissibility as evidence.1.3. Based on the evidence, a range of factual circumstances is established that are important for the proper consideration and resolution of the case.Relevant to the case are: factual circumstances that substantiate the claims and objections of the parties; other circumstances relevant to the proper consideration and resolution of the case.The factual circumstances substantiating the claims are the basis of the claim. According to paragraph 16 of the Supreme Court's Regulation No. 5 of July 11, 2003 "On Judicial Decision", the basis of a claim should be understood as the facts indicated by the person concerned, entailing the emergence, modification or termination of the material legal relationship that is the subject of the claim.This definition also applies to the factual circumstances justifying the objection to the claim.These factual circumstances should also include factual circumstances that justify the position of other subjects of the civil process.:- claims of third parties who make independent claims on the subject of the dispute, since, according to the first part of Article 51 of the CPC, such third parties enter into the process by filing a claim against one or both parties, enjoy all the rights and bear the duties of the plaintiff;- claims of third parties who do not make independent claims on the subject of the dispute, since, according to the third part of Article 52 of the CPC, such persons enjoy procedural rights and bear procedural duties of the party on whose side they participate.Other circumstances that are important for the proper consideration and resolution of the case in the legal literature include evidentiary facts; facts of procedural importance; facts that the court needs to establish in order for the court to fulfill the tasks of civil proceedings._______________________25 Cm. for example: Scientific and practical commentary on the Civil Procedure Code of the RSFSR. Moscow, "Jurid. lit.", 1976. p. 97; Civil procedure: Textbook for law schools / Edited by M.K. Treushnikova, Moscow: Novy Yurist Publ., 1998, p. 164.

Evidentiary facts are those facts that, once proven, allow us to logically deduce a legal fact. For example, in cases of invalidation of a paternity record, the plaintiff may refer to the evidentiary fact of his prolonged absence from the defendant's place of residence, which precludes the conclusion of paternity. 

Facts of exclusively procedural importance include the emergence of the right to file a claim (for example, the implementation of a mandatory pre-trial dispute resolution procedure), the right to suspend and terminate proceedings, as well as the right to perform other procedural actions (for example, taking measures to secure a claim).The establishment of facts necessary to fulfill the tasks of civil proceedings is required for the court to substantiate a private ruling, i.e. to take preventive and educational measures in accordance with Articles 4 and 270 of the CPC.1.4. The law does not disclose what should be understood by the proper consideration and resolution of a case for which the established circumstances are relevant.Proper consideration and resolution of a case should be understood as consideration and resolution of a case, as a result of which lawful and reasonable judicial acts were rendered.The consideration of a case is understood as the very process of conducting a civil case by the court, as well as the completion of the case by issuing a judicial act that does not resolve the case on the merits of the dispute., - rulings by the courts of first instance, appeal or cassation instances.When resolving a case on the merits of a dispute, the court of first instance issues a decision, and the courts of appeal and cassation issue a resolution.1.5. The range of circumstances specified in the first part of this article may be fully or partially included in the subject of evidence in the case.The court determines the subject of proof, guided by the norms of substantive law governing the disputed legal relationship. In other words, the subject of proof is determined by the conditions of the hypothesis of the substantive law norm, which applies to the disputed legal relationship.2. The second part of this article lists the means of proof by which evidence can be obtained.2.1. Evidence may be obtained from the explanations of the parties and third parties.Giving oral and written explanations to the court is the procedural right of the persons participating in the case, which include the parties and third parties.The parties and third parties have the right to have representatives who also provide explanations (part one of Article 202 of the CPC). However, the explanations of the representatives are not listed separately in the list of evidentiary means. By virtue of representation, the explanations of the representatives should be considered the explanations of the person the representative represents. The explanations of the representatives of the persons participating in the case are provided for in subparagraph 9) of the first part of Article 281 of the CPC.For the content of the explanations of the parties and third parties, see in the commentary to Article 79 of the CPC.2.2. Explanations are also provided by other persons participating in the case provided for in the first part of Article 43 of the CPC.:- the prosecutor who filed a lawsuit in accordance with the procedure provided for in Article 54 of the CPC;- state bodies and local self-government bodies, legal entities or citizens who have filed a claim with the court in accordance with the procedure provided for in Articles 55, 202 of the CPC; - applicants and other interested persons in cases considered by the court in special proceedings listed in Article 302 of the CPC;- participants in a public-law dispute, considered in the order of special claim proceedings, specified in Articles 286, 289, 292, 298 of the CPC.2.3. Information about the facts may be obtained from the testimony of witnesses. At the same time, witnesses must meet the requirements set out in the first part of Article 80 of the CPC and be questioned in accordance with the procedure established by law (Articles 203, 204, 205, 206 of the CPC).2.4. The means of proof include: 

- an expert opinion drawn up after the court-ordered expert examination;- expert opinion based on the results of a commission examination (part three of Article 88 of the CPC);- the conclusion of a comprehensive examination (Article 89 of the CPC).2.5. Information about facts can be obtained by examining physical evidence (Article 95 of the CPC). The criteria for classifying items as physical evidence are established by Article 95 of the CPC, and the procedure for examining physical evidence is provided for in Article 210 of the CPC.2.6. Information about the facts can be obtained from the protocol of the procedural action, the preparation of which, according to the first part of Article 281 of the CPC, is mandatory when the court performs the procedural action outside the meeting (for example, when providing evidence in accordance with Articles 69, 71 CPC).In practice, the protocol of the procedural action often forms out the interrogation of a witness in the court of appeal, when other new evidence is not being examined, except for the interrogation of the witness., whose interrogation was refused in the court of first instance, or the testimony of witnesses is disputed (part four of Article 420 of the CPC).2.7. Information about the facts can be obtained from the minutes of the court session, which must be drawn up in accordance with the first part of Article 281 of the CPC, reflecting all the essential circumstances of the proceedings.2.8. The trial may be conducted using audio or video recordings, which can be used as evidence.The evidence may be audio or video recordings of other events that contain information about facts related to the case. For example, a recording from a car's DVR can be used to prove the circumstances of a traffic accident. The wedding video may record which gifts (money, other property) and to whom (to both newlyweds or one of the newlyweds) were made by relatives, guests on the part of the bride or groom.2.9. Judicial proceedings may be conducted by the court via videoconference (part three of Article 186 of the CPC). In this case, the data obtained through the use of videoconferencing systems, explanations of the parties and other persons involved in the case, witness statements, expert opinions, conclusions of state bodies and local governments may also be evidence.2.10. The list of evidence is open, the law provides that information about the facts can be obtained from other evidence. This list may be updated in connection with the further development of scientific and technical means. This provision allows you to use as evidence any information that is not directly provided for by law, but is not directly prohibited by it.

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