Amangaliyeva Zaure

master of 2 course of department of civil law and civil process, labor law, Law faculty, Al-Farabi Kazakh National University

Atahanova S.K.

candidate of law sciences, professor of department of civil law and civil process, labor law. Law faculty, Al-Farabi Kazakh National University

INSTITUTE OF REVISION OF A CIVIL CASE ON AGAIN OPENED OR NEW CIRCUMSTANCES

According to paragraph 2 of article 13 of the Constitution of RK judicial protection of his rights and freedoms including on a possibility of revision of the judicial act is guaranteed to everyone [1].

Code of Civil Procedure of RK provides a possibility of revision of the judicial acts which have taken legal effect not only in higher judicial instances, but also on newly discovered facts.

The institute of revision on newly discovered facts of the judicial acts which have taken legal effect is an additional guarantee of fair justice and legality in civil legal proceedings.

The new CCP RK which are put into operation since January 1, 2016 has brought a number of changes in the norms concerning revision of judicial acts. The judicial acts which have taken legal effect can be revised not only on again opened, but also on new circumstances [2].

Newly discovered facts are understood as the circumstances, essential to business, existing at the time of adoption of the judicial act. Treat them:

- the established sentence which have taken legal effect, the resolution of court, resolutions of the public authorities and officials who are carrying out functions of criminal prosecution, obviously false testimonies of the witness, obviously false expert opinion, obviously wrong translation, subfalsehood of documents or material evidences which has caused the resolution of the illegal or unreasonable decision;

- the established sentence which have taken legal effect, the resolution of court, resolutions of the public authorities and officials who are carrying out functions of criminal prosecution, criminal offenses of the parties, other persons participating in business, either their representatives or the criminal offenses of judges made by consideration of this case;

- cancellation of the decision, a sentence, definition or the resolution of court or the resolution of other public authority which has formed the basis to pronouncement of this decision, definition or the resolution.

This list of newly discovered facts is exhaustive and is enshrined in item 2 of Art. 455 of CCP RK.

The list of the circumstances which are the basis for revision of the judicial act which has taken legal effect is significantly expanded generally due to legislative fixing of a concept of new circumstances, new to civil process.

New circumstances in CCP RK are understood as the adoptions of the judicial act and affairs of a circumstance having essential value for the correct permission which have arisen later.

Treat those:

- cancellation of the judicial act which had a collateral estoppel by consideration and permission of business;

- the judgment which has taken legal effect about recognition of the invalid transaction on the basis of which the judicial act is taken out;

- recognition by the Constitutional Council of RK unconstitutional laws and others the NPA with which application the judicial act is taken out [3].

It should be noted that submission of the proof on circumstances which were known to the party, but haven't been the basis for the declared requirements or objections against them, doesn't testify to newly discovered facts. Only those circumstances which existed at the time of consideration and permission by court of business are subject to proof.

If the circumstances which are been the basis for the claim were incomplete, and for the correct permission of business there were circumstances unknown to the party which determine by other the rights and obligations of the parties, then such circumstances are regarded as opened again.

At the same time cases when the party changes the explanations which are earlier offered in court session on the substance of disputable legal relationship as owing to the principle the party independently chooses means, ways and volume of legal protection can't belong to newly discovered facts. Change of maintenance of explanations can demonstrate both abuse of the right, and procedural omissions of the party in the procedure of proof [4].

The conclusion of the settlement agreement, the agreement on settlement of a dispute (conflict) as mediation, the agreements on settlement of a dispute as the procedure provided by acts other ways of voluntary settlement of a dispute (offset of mutual requirements, compensation and others) can't confirm again arisen circumstances as the specified actions are made at will of the parties of disputable legal relationship. Again arisen circumstances don't belong to force majeur as are result of actions of the third parties.

According to Art. 63 of CCP proofs on business are the data on the facts received in the lawful way on the basis of which the court establishes existence or lack of the circumstances proving requirements and objections of the parties, and also other circumstances important for the correct consideration and permission of business. If the evidence hasn't been produced by the party when considering the case, then it is regarded as procedural omission of the party. After pronouncement of the judicial act submission of the proof by the party in justification of the made claim which at it was, regarded as submission of the new proof, but not proofs in justification of the opened again or new circumstance.

Only that proof which the party is revealed after removal in the matter of the judicial act can be the opened again or new circumstance. The applicant is obliged to produce the evidence in justification of existence of the opened again or new circumstances, but not new proofs in justification of the declared requirement or objections against him on the circumstances specified in justification of the claim and investigated by court in court session. The applicant is also obliged to prove that newly discovered facts existed when considering the case by court, but weren't and couldn't be known to the applicant [5].

These circumstances have to be confirmed with the corresponding proofs on the basis of which assessment the court draws legal conclusions about the rights and obligations of the parties and resolves a dispute.

Essential the opened again or new circumstances which have legal value can admit, that is are provided by a disposition of standard of the material law which is subject to application for settlement of dispute and to establishment of the rights and obligations of each party of disputable legal relationship. These circumstances have legal value when influence legal conclusions of court about the volume of the rights which are subject to protection and the interests and duties which are subject to execution protected by the law.

Importance of the opened again or new circumstance is expressed that their account attracts or can entail need of use of other standard of the material law which has been applied by court when considering the case.

The statement for revision of the decision, definition or the resolution on again opened or new circumstances moves the parties, other persons participating in business or the prosecutor in the court which has passed the decision, definition or the resolution within three months from the date of establishment of the circumstances forming the basis for revision. Three-months term is the procedural term, that is the term established by the law for commission of procedural action in civil legal proceedings. The statement is signed by the person submitting the application or his authorized representative. The person submitting the application is obliged to send to other persons participating in business, the copy of the application and the enclosed documents which at them are absent.

The application submitted with observance of requirements imposed to his form and content is considered by removal of definition about its acceptance in production of the relevant court.

If the court comes to a conclusion about existence of the opened again or new circumstances having essential value for business, then takes out definition about cancellation of all taken place in the matter of judicial acts and fixes date and time for consideration of a civil case in essence.

Definition about cancellation of the judicial act on again opened or new circumstances isn't subject to the appeal and protest. Arguments about disagreement with definition can be included in appeal or cassation complaints.

If the application for revision of the judicial act on newly discovered facts is submitted with violation of the rules, CCP established by norms, after the expiration of an established period and there is no petition for his restoration or restoration of the passed term of the statement is refused if requirements imposed to statement form and content aren't observed it is subject to return.

Also the statement for revision of the judicial act on newly discovered facts is also subject to return to the applicant in the following cases: it is withdrawn by the applicant before his consideration; it is given by the person which doesn't have powers on his giving or the incapacitated person; it is signed with the face which doesn't have powers on his signing.

The statistics shows that the considerable part of applications is returned in view of discrepancy to requirements of the law.

References:

1. Constitution of the Republic Of Kazakhstan, was approved at the republican referendum on August 30, 1995

2. Code оf Civil Procedure of the Republic of Kazakhstan of October 31, 2015 No. 377-V ZRK

3. Neshatayeva T. N. International civil process. - M, 2001.

4. Klein N. I. Judicial reform and development of the arbitration procedural legislation//Judicial reform in Russia: problems of improvement of the procedural legislation:- M, 2001.

5. Gromov N., Zhilcova I. Definitions of court about consideration of a civil case on newly discovered facts//Legality - 1998, No. 8.