Implementation of the principle of competition and equality of the parties in terms of collecting and examining evidence on the court's own initiative or at the request of the party (Article 15 of the CPC)

Law No. 342-VI SAM amended and supplemented Parts 3, 4 of Article 15 of the CPC, which significantly expanded the powers of the court in civil cases.

 Prior to the amendments and additions, the court was completely exempt from collecting evidence on its own initiative in order to establish the factual circumstances of the case.

That is, the parties, regardless of the court and third parties involved in the case, independently chose their position and ways to defend it during civil proceedings.

However, in practice, there were problems related to the implementation of the principle of competition, since the participants in the process did not always find themselves in an equal position in terms of legal literacy. Often, this difference led to the fact that one or the other side could not provide the necessary evidence to substantiate its position.

At the same time, the assessment of the presented evidence is of primary importance in making a legitimate and reasonable decision on the dispute under consideration.

        The important amendments introduced in June 2020 are aimed at optimizing the process from the inside, focusing the judge on the full resolution of the dispute, and optimizing his work. The key approaches to the role of the judge and the principle of adversarial parties have been revised. The amendments to Article 15 of the CPC were aimed at "modernizing" civil proceedings, using a more rational approach to the organization of the process, which ultimately leads to a reduction in the procedural costs of the parties and a quick result.

The amendments were justified by the fact that the court should be able to take separate actions to collect evidence on its own initiative, as well as express its legal position at a court hearing. This helps to clarify the positions of the parties in a timely manner and resolve the dispute objectively.

That is, if judges have been guided by the principle of neutrality so far, now the procedural activity of the court is increasing.

        According to the new version of Article 15 of the CPC, the court, while maintaining objectivity and impartiality, manages the process and creates the necessary conditions for the parties to exercise their procedural rights to a full and objective investigation of the circumstances of the case.

        The court explains to the persons participating in the case their rights and obligations, warns about the consequences of committing or not performing procedural actions, clarifies their legal positions and arguments, discusses with them the circumstances of the case and, in cases provided for by the Code, assists them in exercising their rights. The court bases its decision only on those evidences, the participation in the study of which was provided to each party on an equal basis.

        The court, at the reasoned request of the party or on its own initiative, takes measures to collect and study the case materials, verify the validity of the arguments of the parties and the reliability of the evidence provided to the court, and also performs other actions aimed at achieving the objectives of civil proceedings.

 Thus, the terms of reference of judges have been significantly expanded.

An analysis of the provisions of the CPC showed that the active role of the judge, as well as the implementation of the above-mentioned procedural actions, are implemented mainly at the stage of preparing the case for trial.

At this stage, the minutes of the court session are not kept, as a rule, there is no audio or video recording. In this regard, it is not always possible to assess judges' compliance with the provisions of the CPC.

 At the same time, the study of generalizations of regional and equivalent courts has established that, in general, courts correctly implement the new opportunities provided to them, directing efforts to quickly consider cases and resolve the dispute on the merits.

The courts, on their own initiative, demand the materials of registration cases for real estate, land cadastre, inheritance cases, enforcement proceedings, cases of administrative offenses, detailed calculations and loan arrears; credit dossiers; materials and other documents from state authorized bodies; in inheritance cases - information about pension savings of deceased persons, for subsequent adoption property of their heirs, etc .

For example, the Kamystinsky District Court in a civil case filed by Bashpayev against the State Institution "Office of the Akim of Kamystinsky district" to invalidate the marriage and annul the marriage certificate for a full and comprehensive review of the case, sent a request to the akimat on its own initiative to provide a register of civil status acts on marriage for 1999, as well as the same information about the registrar who recorded the marriage certificate No. 2 dated December 01, 1999. Despite the court's explanations, the parties did not consider it necessary to examine this evidence at the hearing, believing that there was sufficient evidence in the case.

The Zhambyl district Court sent requests in one case to the notary chamber of the North Kazakhstan region, to the Office of the Akim of the Zhambyl district (No. 5946-20-00-2/159 on the claim of Zhanturina B.B. to the akim of the Zhambyl district for recognition of ownership of real estate).

District Court No. 2 of the Ayyrtau district of North Kazakhstan region, on the initiative of the court, an extract was requested from the KGP at the Ayyrtau Central District Hospital on the appeal of Maksyutova G.V. with the establishment of a diagnosis and the appointment of treatment in a civil case on the claim of Maksyutova G.V. to the limited liability partnership Gusakovka for the recovery of lost earnings, compensation for moral damage (No. 5933-20-00-2/34).

In addition, judges have access to the Information Exchange System of Law Enforcement and Special Agencies of the Republic of Kazakhstan (hereinafter SIOPSO) and, if necessary, the courts request and receive all information on the case from the SIOPSO database.

For example, when the Petropavlovsk City Court No. 2 considered the application of M.M. Zhabagin to appeal the actions of the Petropavlovsk city Akimat, the defendant filed a motion to apply the statute of limitations. On its own initiative, the court requested information from the registration authority about M.M. Zhabagin's request for a certificate. The information obtained proactively made it possible to establish that the applicant had been aware of the violated rights long before going to court and the special time limits for going to court had expired. The court's demand for information did not allow the applicant to mislead the court, and contributed to the timely consideration of the case in a shorter time (No. 5912-20-00-2/1788).

The Rudnensky city court in the civil case on Nikolaev's claim to Nikolaeva for the division of property demanded information on bank accounts from second-tier banks, indicating the remaining amount on the accounts. Obtaining this information allowed the plaintiff to clarify his claims.

 At the same time, some courts act "the old-fashioned way", they do not try to take the initiative to assist the parties in exercising their rights and obligations, completely shifting the responsibilities of collecting evidence to them.

The results of the review of cases, the study of the grounds for the adoption of certain judicial acts, and the observance by judges of the provisions of part 2 of Article 201 of the CPC, in some cases give reason to believe that when considering individual cases, judges did not ensure compliance with the requirements of Article 15 of the CPC.

For example, by the decision of the Council of Ministers of Atyrau region dated December 15, 2020, the claim of JV Blue Midas Stroy LLP was dismissed  to the branch of JSC "National Company "KazAvtoZhol" on the recognition of actions to impose a fine as illegal (case No. 2301-20-00-2/1509).

One of the grounds for the denial of the claim was the presentation of claims against the branch of the legal entity.

By the decision of the appeal dated February 8, 2021, the decision was overturned, the claim was satisfied. The issue of replacing an improper defendant with a proper one, in accordance with Article 50 of the CPC, was to be resolved during the preparation of the case for trial. The court did not take the necessary measures, did not create the necessary conditions for the parties to exercise their procedural rights.

In another case, by the decision of the Council of Ministers of the Atyrau region dated February 3, 2021, the civil case proceedings on the claim of Kemelbaeva H. The application to Kazakh Sturgeon Company Kaspi Balyk LLP, Atyrau Social and Entrepreneurial Corporation JSC on invalidation of the minutes of the general Meeting has been terminated (No. 2301-20-00-2/1854).

The reason for the termination was the plaintiff's failure to comply with the provisions of Article 50 of the Law on LLP, the regulatory decree of the Supreme Court No. 2 dated July 10, 2008 "On certain issues of the application of legislation on limited and additional liability partnerships", which stipulated that the minutes of the general meeting of the LLP participants, separately from the decision adopted by the general meeting, are not subject to judicial appeal.

The study of the statement of claim showed that the plaintiff is actually challenging the decision of the general meeting of the LLP, adopted at the meeting.

This issue was to be clarified during the preparation of the case for trial. Guided by the provisions of Article 15 of the CPC, the judge should have explained the plaintiff's right to clarify or supplement the claims.

The case is currently under appeal review.

Some courts in the North Kazakhstan region do not fully take measures to collect and study case materials, verify the validity of the arguments of the parties and the reliability of the evidence provided to the court. Without violating the principle of competition and equality of the parties, the judges are not active in collecting case materials.  

The facts have been revealed when judges do not use the CIO PSO, which would shorten the time required to collect the necessary data.

For example, the judge of the juvenile court of North Kazakhstan Region, Zhanakov A.E., during the preparation of civil cases on the claim of Baibekova G.B. to Goroshnikov S.G. for deprivation of parental rights and determination of the place of residence of minors and on the claim of Zhilkina N.M. to Balzhko D. for establishing paternity and collecting alimony instead of using the SIO PSO, sent a number of requests to various government agencies, the execution of which was delayed (redirected, redirected to other authorities).

There are also cases when courts misunderstand the powers granted to them and abuse them to the detriment of the interests of the parties.

Thus, the appeal board of the Mangystau Regional Court in a civil case on the claim of Kazakhdorstroy LLP against the Department of Internal State Audit, the Department of Natural Resources, Pavlodar River Port JSC, going beyond the claim, sent a request to the State Institution "Committee for Atomic Regulation and Energy Supervision and Control of the Ministry of Energy of the Republic of Kazakhstan."

The Court of Appeal declared the disputed agreement invalid, and the actions of the Department of Internal State Audit were illegal due to the lack of a license.

Meanwhile, the partnership's claims were based only on the discrepancy between the experience and the level of responsibility of the constructed facilities.

Thus, the appellate instance, grossly violating the norms of procedural law, went beyond the stated requirements without legal grounds, changing the basis of the claim without the written consent of the plaintiff.

By the decision of the Judicial Board for Civil Cases of the Supreme Court dated January 21, 2021, the decision of the appellate instance was canceled. At the same time, the Supreme Court pointed out that sending a request by the court of appeal and receiving information contradicted Article 413 of the CPC, went beyond the scope of the claim and the subject of the trial.

The courts note that after the amendments to Article 15 of the CPC, the parties, being represented by professional representatives (lawyers, legal consultants), sometimes behave intentionally passively, abusing the newly introduced provisions of the law on the active role of the court in civil proceedings, referring to the court's obligation to ensure a full and comprehensive examination of the case.

That is, in some cases, the parties abuse the active role of the court.

Thus, during the consideration by the Saryarkinsky district court of the case on the claim of Skripov S.Yu. to Esengulov A.A. for debt recovery, the defendant's representative, without filing a counterclaim for invalidation of the contract, repeatedly petitioned for additional evidence that was not related to the main claim (materials of a civil case considered earlier by another court with the participation of the plaintiff and the defendant), indicating that the court should claim them on its own initiative.

Based on the requirements of Part 4 of Article 15, Part 1 of Article 100 of the CPC, the court, having verified the validity of the defendant's statements in this part, rejected the petitions, taking into account the defendant's abuse of procedural rights.

The appellate and cassation instances, when reviewing judicial acts issued after amendments, pay attention to the implementation of new powers by the courts.  

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