Beksultan A.E.

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

Features of proof in court of the court of appeal

The judgments of the first instance which haven't taken legal effect can be appealed in an appeal order. After the first trial step when the appeal was applicable only to revision of the judicial acts of magistrates which haven't taken legal effect, the appeal has taken the full place in system of revision of judicial acts [1, page 346].

As the result of activity of court according to proofs the judicial act has to be motivated so that the court of higher instance has understood why the court of the first instance has drawn this conclusion on the facts of the case on the basis of the available body of evidence. However courts of subordinate instance not always motivate the decisions properly, than create difficulties in definition of sufficiency of proofs. A conclusion of court of the court of appeal about their insufficiency testifies to an absence of proof of the circumstances important for business. In this case submission of additional proofs or business will be required it will be authorized on the basis of available in business. It is necessary to distinguish sufficiency of proofs which is defined at a final evaluation stage, from their completeness defined at a preparatory stage. The category of completeness of proofs is broader than a concept of sufficiency as includes all proofs without exception which have to be investigated and estimated [2, page 18]. Sufficiency of proofs, but not their completeness as it is sometimes specified in procedural literature is important for court of the court of appeal. Their sufficiency is connected with reliability in the sense that insufficiency is shown as in total absence of proofs of the facts of the basis of the claim or objections against him or existence of doubtful proofs [3, page 5]. It means that for recognition of proofs it is necessary to establish their reliability. In the presence at proofs of the identical contents but having different sources, the court of the court of appeal recognizes them reliable. When the contents of proofs are contradictory, it is difficult to court to estimate them regarding reliability as it can't draw a conclusion only on the basis of advantage of quantitative structure of proofs. To eliminate doubts in a part of reliability of proofs, the Court of Appeal should establish his sufficiency as, "the more contradictions in evidentiary material, the bigger evidentiary material has to be attracted, investigated and estimated for establishment of the truth" [4, p. 107].

Follows from the aforesaid that the court of the court of appeal repeatedly considers case in court session on rules of production in court of the first instance taking into account the features provided by Civil Procedure Code of the Republic of Kazakhstan. In this regard the persons participating in business are given one more chance to prove the case, in compliance of the restrictions provided by CPC RK. Treat these restrictions, first, the ban of statements of new requirements which haven't been declared when considering the case in court of the first instance, secondly, admissibility of new proofs by the persons participating in business only in case of justification in the appeal complaint (representation) of impossibility of submission of proofs to court of the first instance (the p. 2 of Art. 355 of CPC RK). Thirdly, in court of the court of appeal rules about connection and separations of several claim requirements, about change of a subject or basis of the claim, change of the size of claim requirements, about presentation of the counterclaim, replacement of the inadequate defendant, attraction to participation in business of the third parties aren't applied. The specified restrictions are intended to save process from tightening, and the parties from desire to reserve to the appeal of the proof, the petition for involvement of the third parties, a possibility of commission of some administrative actions.

Exchange of competitive documents is legislatively provided. In general the court of appeal is second trial by rules of legal proceedings in the first instance. Therefore, the same norms on proofs and proof are applicable here. Consideration of the case in court of the court of appeal begins with the report of the judge of the chairman or one of judges. The judge - the speaker states the facts of the case, the content of the judgment of the first instance, arguments appeal complaints, representations and the objections which have arrived concerning them, contents of the new proofs brought into court, and also reports other data which the court needs to consider for check of the judgment of the first instance. After the report the court of the court of appeal hears explanations of the persons which have been in court session participating in business, proofs then the court passes to a research of the new proofs accepted by court. Upon termination of clarification of the facts of the case of a research of proofs the court of the court of appeal provides to the persons participating in business, an opportunity to act in a judicial debate. During each court session of court of the court of appeal, and also at commission of separate procedural actions out of court session the protocol which is to at the same time written proofs on business is kept.

The Court of Appeal when determining limits of consideration of the case is connected by the arguments stated in the appeal complaint, representation and objections concerning the complaint, representation. If as appeal production only a part of the decision is appealed, the court of the court of appeal checks legality and validity of the decision only in the appealed part. However court of the court of appeal in legal concerns in the right to check the judgment of the first instance in full. Such order of consideration of the case is established to define whether are broken by court of the first instance of norm of procedural law, the judgments of the first instance (item 4 of Art. 358 of CPC RK) which are the unconditional basis for cancellation.

The court of the court of appeal estimates the evidence which is available in business, and also in addition produced, proceeding from their relevancy, reliability and sufficiency. Additional proofs are accepted by court of the court of appeal if the person Participating in business has proved impossibility of their submission to court of the first instance for the reasons which aren't depending on him and the court recognizes these reasons valid. We will especially note that the law underlines a duty of the person participating in business to prove impossibility of submission of proofs to court of the first instance.

About adoption of new proofs the court of the court of appeal takes out definition. If the court of the court of appeal accepts new proofs contrary to legislative restrictions, then such proofs owing to the indication of the law are inadmissible. Quite often forget courts about this circumstance, proving the conclusions by new proofs which impossibility of submission to court of the first instance it isn't proved.

It is necessary to allocate a variety of reasons to data of action of court:

· The wrong definition of the circumstances important for business. In this case the court of the first instance has incorrectly defined a proof subject therefore the illegal and unreasonable judgment is passed. For example, at indemnification, caused during the road accident, it is necessary to establish a number of circumstances among which it is important to define the owner of a source of the increased danger first of all. If court of it it isn't made, then the decision on business is subject to cancellation. The right definition of the defendant depends on the correct definition of the owner of a source of the increased danger that can even change jurisdiction of a dispute (for example if owners of two collided cars are legal entities, then business to subordinated arbitration court).

· Absence of proof of the circumstances established by court of the first instance important for business. Takes place in a case, когдасуд has truly defined a proof subject, but the persons participating in business haven't presented enough the carried, admissible and authentic proofs in view of what the decision is unreasonable.

· Discrepancies of a conclusion of court of the first instance, stated in the judgment, to the facts of the case.

· Violation or wrong use of norms of substantive law or norms of procedural law. Violation or the wrong use of norms of procedural law can be the unconditional or conditional basis for cancellation of the judgment of the first instance. In the presence of the unconditional bases for cancellation of the judicial resolution the judgment of the first instance is subject cancellation irrespective of arguments of the appeal and from whether has brought or whether violation could lead data to pronouncement of the illegal and unreasonable judgment, definition, the resolution. The unconditional bases is the following:

case is considered by court in illegal structure;

case is considered by court for lack of any of the persons participating in business and not informed on time and the place judicial a meeting;

when considering the case rules about language in which judicial proceedings are conducted have been violated;

the court has resolved a question of the rights and of duties of the persons who aren't recruited in business;

the judgment isn't signed by the judge or any of judges or the judgment is signed not there by the judge or not those judges who are specified in the judgment;

the judgment is made not by those judges who were a part of the court considering case;

In business are absent the protocol of court session;

At decision-making of court rules about the mystery of a meeting of judges have been violated [1, page 354].

Existence of each of the circumstances which are listed above has to be proved by the person who has made the appeal complaint. The Court of Appeal can go beyond the appeal complaint for establishment of the circumstances carried by the law to the unconditional bases of cancellation of judicial resolutions.

Violation or the wrong use of other procedural rules of the right can become the basis for cancellation or change of the judicial act only under a condition if this violation or the wrong application has brought or could lead to the wrong permission of business. And again the person making the appeal complaint has to prove set of the following circumstances: violation or wrong use of norms of procedural law; pronouncement of the wrong judgment, definition or resolution. The wrong judicial act is understood as the illegal and unreasonable judgment, definition or the resolution; existence between violation of procedural law and adoption of the wrong judicial act of a causal relationship.

In the presence of such basis for cancellation of the judgment of the first instance as the wrong use of norms of substantive law the person making the appeal complaint has to prove the fact of the wrong use of norms of substantive law that it can be expressed in the following:

• the court hasn't applied the law which is subject to application;

• the court has applied the law which isn't subject to application;

• the court has misinterpreted the law.

The judgment of the first instance can be cancelled in an appeal order with determination of proceedings or to statement without consideration. In this case existence of the bases for determination of proceedings (Art. 247 of CPC RK) or for leaving of the statement without consideration (Art. 249 CPC RK) has to be proved.

However theoretically unresolved is a question of how to file additional materials. A reference to them is made or in the appeal complaint (protest), or directly in explanations at reconsideration of the case. According to V. M. Zhuykov, on affairs on which in court of the second instance of the person, participating in business, make references to new proofs it is necessary to take out two definitions:

1) according to the petition for a research of new proofs;

2) on the substance of the complaint.

Certain authors consider that the matter has to be resolved by court of the second instance in cassation definition as the law doesn't provide removal of special definition [5, page 10]. Really, in force the subparagraph 4 of part 1 of article 360 CPC RK the content of the presented materials, and also explanations of the persons participating when considering the case in court of the court of appeal has to be reflected in the resolution of court of the court of appeal, besides contents of the decision, the appeal complaint and a protest. Giving in the resolution the analysis to arguments about need of their familiarizing with business, the court of the court of appeal has to estimate them. As essential minus of such order serves that the court at first orally refuses familiarizing, and procedurally this action makes out only at pronouncement of the appeal resolution. Jurisprudence goes on this way. The additional evidence can be produced as before consideration of the case in court together with the appeal complaint (protest) or a response, and during reconsideration of the case. The persons participating in business have the right to refer to new proofs in objections on the complaint if the reference to them was in the complaint. If she wasn't, then their representation in objections isn't allowed [5, page 33]. In jurisprudence cases when on the basis of an assessment of additional materials the court of the court of appeal comes to a conclusion about their insufficiency and need of their further representation meet. In these cases according to part 3 of article 66 CPC RK the court can offer the persons participating in business, to present them and if representation is difficult, it has to render assistance in their collecting. Such assistance is possible from court in the presence about it requests of the interested person. Even if additional materials aren't enough, the court of the court of appeal has no right to collect them on the initiative (part 2 of article 15 CPC RK). Earlier the idea of expediency of fixing of procedural action for familiarizing of additional materials or refusal in it in the protocol of court session of the court of appeal has been introduced.

References:

1. Reshetnikova I. V. Proof in civil process: an educational and practical grant for undergraduates. - M., 2012.

2. Molchanov V. V. Collecting of proofs in civil process: abstract of the thesis. - M, 1986. - 26 pages.

3. Kovalenko A. G. Completeness of materials as basis of law-enforcement activities for civil disputes:-Sverdlovsk, 1978. - 16 pages.

4. Yelizarov N. P. Prevention and elimination of violations of the law by regional (regional) court. - M.: Legal literature, 1977. - 72 pages.

5. Zhuykov V. M. Problems of civil procedural law. - M.: Gorodets, 2001.