Beksultan Asel Elmuratqyzy
master of 2 course of
department of civil law and civil process, labor law,
Law faculty,
Al-Farabi Kazakh National University
Atahanova Saltanat Karibaevna
candidate of law sciences, professor of department of
civil law and civil process, labor law, Law faculty, Al-Farabi Kazakh National University
Urgent problems
of appeal production as method of implementation of the
right for the appeal of judgments
Annotation. This article is devoted to a
research of some problems of appeal legal proceedings, the right for the appeal
of judicial acts, an entity and value of the court of appeal reveals.
Keywords: judge, appeal, law, judicial system,
appeal production, appeal, judgments.
In the Republic of Kazakhstan,
according to provisions of article 76 of the Constitution of RK, the
presumption of direct action of the rights and freedoms of the person and
citizen, which make sense of the adopted acts, is established and are provided
with justice implementation. Justice is carried out only by court [1]. However,
the washed-up result in the form of the passed decision not always meets the
requirements of substantive or procedural law. As a rule, it is connected with
"a human factor", professional miscalculations and imperfection of
the current legislation.
All other constitutional and legal
values (the state sovereignty, democracy, etc.) in relation to the person, his
advantage, the rights and freedoms. Judicial protection which "is
implemented through set of various procedural means providing fair justice and
effective restoration of the violated rights of citizens" acts as the most
effective guarantee of the constitutional status of the personality. And one of
real mechanisms of realization of these principles is appeal production. Appeal
production gives the chance to protect these rights and freedoms of the person,
it also gives the chance of judicial authority to reveal those mistakes and
defects which were made by subordinate instances.
Today Kazakhstan is included into the
world community and therefore this question is on the first place, i.e. a
question of real protection of the rights and freedoms of the person in civil
legal proceedings.
Appeal production in civil process
has arisen in the Roman Empire. The word "apellatio" of a Latin
origin is also meant by "the address, the complaint", that is it is
about the appeal of the judgment in higher judicial instance for the purpose of
reconsideration of the case [2].
In foreign civil process the appeal
is a usual way of check of decisions of the courts of the first instance.
In the modern legislation of
Kazakhstan the right of the appeal has been restored in the Code of civil
procedure [3], and with introduction of judges to system of courts of law and
investment with their function of implementation of justice the appeal order of
the appeal and verification of decisions and definitions of judges has been
established.
The entity of the appeal appeal in
civil legal proceedings is that the persons participating in business have the
right to address in the order set by the law with the appeal complaint to the
resolution of the magistrate, which didn't take legal effect to district court
as court of the court of appeal.
The court of appeal has the right to
consider for the second time the merits of the case in a case of the address of
the person participating in business in the court of appeal.
The court of appeal checks validity
and validity the resolution of the magistrate by rules of legal proceedings in
court of the first instance.
In legal literature distinguish two
types of the appeal - complete and incomplete [5].
The incomplete appeal represents
revision of the decision, which hasn't taken legal effect on the basis of the
proofs investigated by court of the first instance. At the incomplete appeal
business can be returned in court of the first instance for new consideration.
The full appeal represents reconsideration of the case in general on a basis
not only available in materials, but also brought into court of the court of
appeal of any new proofs. In this case the Court of Appeal has the right to
establish the new facts therefore it can't direct business to court of the
first instance for new consideration, and has to pass the decision on a being
on the basis of the studied proofs and established facts.
In civil process the right of the
appeal represents the right for initiation of appeal production (production in
court of the second instance) on check of legality and validity of the decision
of the magistrate who hasn't taken legal effect.
The right of the appeal arises at the
parties and other persons participating in business in the relevant district
court through the magistrate from the date of decision by the magistrate.
Increase of a role of court in the
constitutional state places great demands on the organization of his work and
quality of justice. Efficiency of judicial activity in many respects depends on
procedural rules of conduct of participants of process in court. In the message
of the President of the Republic of Kazakhstan it was indicated the need of
taking measures and introduction of the clear and clear procedures and rules
allowing to provide effective protection of the rights and legitimate interests
of persons. At the same time much attention needs to be paid to publicity and
an opportunity to citizens to obtain information on judicial activity. Vida of
it work on improvement of the civil procedural legislation, and in particular,
productions in courts of the second instance, it is necessary to continue as
there is a set of the problems demanding the fastest permission.
Long time disinterest of the state in
effective judicial protection in practice meant lack of due consideration to
improvement of the procedural legislation. Therefore production problems in
court of supervising instance arose because of insufficiency of a readiness of
methodology of initiation of verification of the judicial resolutions which
have taken legal effect and a legal proceedings order.
Ratification by the Republic of
Kazakhstan of the Convention on protection of human rights and fundamental
freedoms has demanded new judgment of the procedural legislation, and in
particular test productions as the legal mechanism guaranteeing respect for
constitutional rights and freedoms by means of cancellation or change of the
wrong judicial resolution including which has taken legal effect.
Existence of the designated problems
shows insufficiently high quality of legal regulation of procedures of
verification of judicial resolutions in court of cassation and supervising
instances.
According to O. V. Nazarova:
"Appeal production is the wide concept including and implementation by
court of the court of appeal of function of judicial control of the judgment of
the first instance with a possibility of cancellation of this decision, and
implementation of second trial, with a direct research of proofs and
pronouncement of own decision" [4].
However, for the parties of a dispute
essential restriction — impossibility of providing additional proofs, except
for those which for good reasons couldn't be brought into court of the first
instance is set. This restriction is represented quite justified as prevents
possible abuse of participants of process of the rights on proof of
circumstances that potentially would attract cancellation of decisions of the
courts of the first instance in view of an incomplete research of proofs.
Transition from the incomplete appeal to the full second instance in court
session of court has a number of features. For example, in civil process,
consideration of the case on rules of the first instance in court of the court
of appeal is possible only at identification of procedural violations in the
decision, in case of violation of norms of substantive law — the appeal remains
incomplete.
Some scientists, considering
procedural features of transition to consideration of the case on rules of the
first instance, hold the opinion that the court of the court of appeal can
choose one of two options, or take out definition and continue consideration of
the case in the same court session, or postpone court session with purpose of preliminary
court session. It is represented that as by the general rule preparation for
judicial proceedings is the obligatory requirement of the procedural
legislation, court of the court of appeal taking out definition about
transition to consideration of the case on rules of production in court of the
first instance can't continue to consider case in the current court session as
the further research of arguments of the appeal complaint loses sense and court
of the second instance is guided by the statement of claim, and also the
corresponding objections presented to court of the first instance. At the same
time there is also other position [6].
Thus, it is necessary to allocate two
essential transformations of appeal legal proceedings: establishment of this
kind of revision of the decisions of the courts of the first instance which
haven't taken legal effect which allows to combine the incomplete and full
appeal, forming the special "mixed" type of the appeal, and also
increase in terms for submission of the appeal complaint from ten days to one
month. Besides, it is also necessary to note unification of a form of the
judicial acts which are taken out by results of consideration of the case in
court of the second instance, and establishment for these acts of a form of
appeal definition.
References:
1. Constitution of the Republic of Kazakhstan of
30.08.1995// Reference base –Yurist;
2. Borisov E.A. The appeal in civil and arbitration
process. – M., 2000.;
3. Code of civil procedure of the Republic of Kazakhstan
of October 31, 2015 No. 377-V;
4. Nazarova O. V. Forms and assignment of appeal
production//Messenger of the Orenburg state university. 2012. No. 3 (139). Page
139-144;
5. Egorova G. Z. Short stories of appeal production in
courts of the court of appeal//the Bulletin of the Udmurt university. Economy
series and right. 2014. No. 2-4. Page 132-136;
6. Vinarkevich I. R. Appeal production: new order. And
what changed?//Bulletin of the Khabarovsk state academy of economy and right. 2013.
No. 1. Page 33-39.