The Phd Doctor of
The Kazakh
humanitarian-law University of Astana,
Republic of Kazakhstan
Asylbekova A.A.
Authorities of the
court cassational instance of the Republic Kazakhstan
The Last change and additions in Civil procedural codex of the Republic Kazakhstan that
acknowledgements law Republics Kazakhstan from December 10 2009 "About
contributing the change and additions in Criminal, Criminal-procedural and Civil procedural codexes of the Republic
Kazakhstan on questions of the improvement of the judicial system"
contribute; cause institute of the cassational instance.
The Court cassational instance is vested by large powers that does
efficient its activity on removal judicial mistake.
New procedural law has given the right to the cassational appeal, protest. Will be taken
into account quality of the work to judges regional in appellate order. Cassational
instance must strive to qualitative consideration of the deal to was not a
cancelling the resolution by Supreme judicial courts. Possible, this will
influence upon quality of the departure of the justice as a whole.
The Extended access to justice of the people and
juridical persons. For instance when presenting cassational complaints, they release
from payment of the state duty. The Eliminated moments, when for want of
facilities on payment of the state duty or gap of the period on appeal people
and juridical persons have to address immediately to the supervision instance.
In accordance with article 383-20 of the Civil procedural codex of the Republic Kazakhstan
in authorities of the court cassational instance enters:
1) leave the resolution and
determination to appellate instance without change, but complaint or protest -
without satisfaction;
2) cancel the resolution and determination to appellate
instance completely or in a part and direct the deal on new consideration in
court first or appellate instance in other composition judge if mistakes, made by court to appellate instance, can be not corrected by
cassational instance. The Court cassational instance hasn’t the right to
predetermine the questions about validity or invalidations that or other proof,
about advantage one proof before others, as well as about that, what decision
must be stood under new consideration of the deal;
3) cancel the resolution and determination to
appellate location completely or in a part and stop the production on deal or
leave the statement without consideration on bases, provided article 247, 249
persisting Codex;
4) cancel the resolution and determination to appellate
instance, having left in effect decision of the court of the first location;
5) change the resolution or stand new, having
cancelled decision of the court first or appellate location, not sending deal
on new consideration if on deal is not required gatherings or additional check
proof, state of the case are installed by court first or appellate instance
packed and it is correct, but made mistake
in using the rates of the material right [1].
Generally accepted in procedural to science is a
position about that the right of the cassatinal appeal - one of the component element of the right on judicial protection,
its reliable warranty and condition to realization. Excitement cassation production
depends on discretions of the person, supposing his right was not in sufficient
measure is restored, or was broken at deal in previous judicial location
essentially. Legitimacy checks the judicial acts in cassational instance occurs
then, when this necessary persons, participating in deal, for protection of its
material right. In procedural law, appearing on the initiative persons,
participating in deal, court of the cassational instance is obliged by side,
realizing procedure legitimacy checks appealled judicial act with use given procedural
by right authority. The Contents and result to activity on cassational revising depends on essence
authority, given court cassational instance.
The Noted particularities judiciary and proceedings,
in combination with action of the principle competentive, providing refusal of
investigation begin in activity of the court and more active procedural role
other participant process, objective complicate the procedure cassational
revising.
The Rational organization and efficiency cassational revising in solving degree
depends on contents and activity on realization authority court of the
Cassational instance.
Similar on sense and contents are also authorities of
the court of the cassational instance, which has the right to leave the
resolution and determination to appellate location without change, but
complaint or protest (the presentation) - without satisfaction; cancel the
resolution and determination to appellate instance completely or in a part and
direct the deal on new consideration in court first or appellate instance in
other composition judge if mistakes, made by court to appellate instance, can not
be corrected by the cassational instance. At court of the cassational instance
has not the right to predetermine the questions about validity or invalidations
that or other proof before others, as well as about that, what decision must be
stood under new consideration of the deal; cancel the resolution and determination
to appellate instance completely or in a part and stop the production on deal
or leave the statement without consideration on bases, provided article 247,
249 GPK Republics Kazakhstan; cancel the resolution and determination to
appellate instance, having left in effect decision of the court to first instance;
change the resolution or stand new, having cancelled decision of the court
first and appellate instance, not sending deal on new consideration if on deal
is not required gathering or additional check proof, state of the case are
installed by court first or appellate instance packed and it is correct, but
made mistake in using the rates of the material right.
Cassation acts and their contents are determined in
united form, as on legislation Kazakhstan in the manner of resolutions. In the
event of leaving cassational complaints or protest without satisfaction court
is obliged to reference in its resolution motives, on which arguments of the
complaint is recognized ungrounded and rejected. The Resolution of the
cassational instance must be made in final form in current five days. It Is allowed
resuming resolutive of a part of resolution, which joins to deal. The
Resolution of the court cassational instance enters in legal power since moment
of its entry.
On opinion of the judges of the Almaty district court f
the Astana Abisheva A.N. require additional discussion questions on
contributing the change for periods of the entering the decision in legal
power. According to contributed changes to a part 3 articles 334 GPK Republics
Kazakhstan complaint, protest can be a tax (are brought) for fifteen days since
day of the presenting to copies of the decision, stood by court. The most
expedient is "aging" editing of the specified article. In this
instance we suppose, exists the infriengement of the plaintiff at satisfaction
of the requirements. On our opinion, "careless" side has a chance of
the long nonperformance of the judicial act, appealling that judicial act to
him is not delivered [2].
Resuming aforesaid, behoves to note that total trend
of the development civil procedural legislation of the Republic Kazakhstan
allows most effectively keep the bolted procedural by legislation principles proceedings. In our view,
it is impossible not to comply with opinion of the row scientist (Z.BAYMOLDINA,
S.AKIMBEKOVA), which consider that follows to work out open system of the
civil procedural rates, allowing full-fledged to realize the function of the
legal interest and right protection of the people, organization, coming
herewith from principle equality all before law, right on equitable and vowel
judicial hearing competent and independent court, founded in accordance with
law.
List of the used literature
1. Law of the Republic Kazakhstan from December 10 2009 "About
contributing the change and additions in Criminal, Criminal-procedural and Civil procedural codes of the Republic Kazakhstan on questions of the improvement of the
judicial system
2. http://www.zakon.kz/177438-sravnitelno-pravovojj-analiz.html