CC BY
2112.00.07-Judicial System. Mamaeva Makbal,
Lecturer of Auezov South Kazakhstan
State University Shymkent, Kazakhstan ORCID: 0000-0002-2126-2638 E-mail: [email protected]
COURT RULING - AS AN INDEPENDENT TYPE OF JUDICIAL ACT
A R T I C L E I N F O
A B S T R A C T
Keywords:
ruling, decision,
witness, party,
resolution,
appeal,
Cassation
complaint,
prosecutor.
In rulings, courts decide only issues of procedural law. In the legal literature, there are three types of rulings: preparation, implementation of the following actions, and final rulings. Preparation rules ensure the course of proceedings until the case is resolved on its merits. They are issued at the stages of both initiation of the case and its preparation for trial as well as at the stage of the trial. Preparatory rulings, for example, are associated with issues related to the movement of the case: the acceptance of the statement of claim, the appointment of the case for trial, and the involvement of new participants in the process. Preparatory rulings are related to the collection of evidence.
Introduction
A court ruling is an independent and widespread type of judicial act. It sets out the results of court resolution of issues arising in the course of consideration of a case. A judicial act in the form of a court
ruling is issued if the case is not resolved on its merits (such as on leaving without
consideration, termination of proceedings, and the return of the statement of claim). In cases stipulated by some sectoral laws, courts make
rulings on specific issues of a particular category of cases. Thus, decisions on the appointment of a temporary administrator during the rehabilitation procedure, on the cancellation of a court decision on recognizing the debtor as bankrupt, and its liquidation with the initiation of bankruptcy proceedings are considered to be the forms of a ruling.
The court issues a ruling in the form of an independent procedural document in accordance with the procedure provided for in Article 223 of the Civil Procedure Code of the Republic of Kazakhstan. When resolving simple cases, the court may issue a ruling without leaving the courtroom. The content of the ruling is indicated in the minutes of the court session. The ruling or its operative part is announced immediately after its issuance. A ruling in its final form may be prepared no later than five working days after the publication of its operative part.
Definitions differ from decisions in that they do not include answers on the merits of declared claims. If the resolution of the issue requires
a full proof, the content of the ruling is quite large and complex, or the judges do not have a single opinion, the judges must issue a ruling in the deliberation room.
Definitions that establish further actions limit the possibility of performing specific procedural actions. They do not affect the essence of a dispute. For example, such rulings include rulings on refusal to accept the statement of claim and termination of proceedings on the case.
By the final ruling, the consideration of the proceedings on the case ends. These include the instructions on termination of proceedings in connection with the plaintiff's refusal to file a claim, the conclusion of a settlement agreement by the parties, an agreement on the settlement of a dispute (conflict) by mediation or participatory procedure. Experimental methods
A court ruling is usually issued in the deliberation room, and the court is obliged to hear, in advance, opinions of persons participating in a case on the merits of issues to be resolved. The procedure for issuing a
ruling is similar to the procedure for making a decision. The court issues rulings at any stage of civil proceedings. The law provides for the possibility of issuing a court ruling without bringing it to the deliberation room. It applies to issues that are not complex and require immediate resolution. The court may, if there are certain conditions, consult there and issue a ruling. For example, when the court decides to postpone the hearing in order to call a witness, the parties do not object to it. In all cases when a court ruling is issued without going to the court deliberation room, the ruling must be recorded literally in the minutes of the court session. Protocol definitions are usually issued on less complicated cases. On the one hand, such rules are provided based on the results of individual procedural actions when discussing various appeals. Definitions issued without going to the deliberation room are not subject to appeal, so such definitions cannot be suppressed.
Persons participating in proceedings may appeal a
ruling in cases stipulated by the Civil Procedure Code and if the court ruling excludes the possibility of further proceeding of the case. In other cases, the court ruling is not subject to appeal, but objections against it may be included in the appeal or cassation complaint. A deadline for the preparation of the ruling is set by law - five working days after the publication of its operative part.
In the ruling issued by the court in the deliberation room, the following must be stated:
1) Date and place of issue of the definition;
2) Name of the court that issued the ruling, full name of the judge and Secretary of the court session;
3) Persons participating in the case, the subject of the dispute or the declared claim;
4) The issue on which the ruling is made;
5) The reasons for which the court came to its conclusions and references to the laws guided by the court;
6) Procedural decision of the court;
7) The procedure and term of the appeal of the ruling, if it is subject to appeal.
The ruling issued by the court in the courtroom must contain the information specified in subitems 4), 5) and 6) of part one of Article 269 of the Civil Procedure Code of the Republic of Kazakhstan.
The court ruling must be legitimate and justified. Otherwise, it is subject to cancellation. Its legality must correspond to the norms of law applied by the court. Basically, these are the norms of Civil Procedure Law.
The validity of the ruling implies a comprehensive, complete, and objective compliance of the circumstances specified in it with the evidence contained in the case materials and examined by the court.
The court's ruling must include the requirements specified in the rules for the commented article.
The court ruling issued in the deliberation room must consist of introductory, descriptive, argumentative, and operative parts.
The ruling made in the conference room must specify the following:
- If the prosecutor and a representative are present in the case, the ruling must indicate the participants in this process, the subject of the dispute, and the claimant's claims;
- In the descriptive part of the ruling, the issue to be resolved by the court's ruling must be raised, the opinion of the persons participating in the case is expressed, the arguments of the parties submitted to justify their claims and objections against them are given;
- The reasoned part of the ruling must contain the conclusions of the court on this issue and a reference to the norms of law;
- The operative part must include clear and concise conclusions of the court on the issue being resolved. For example, when postponing proceedings on a case, the date and time of the appointment of the hearing of the case must be indicated. The resolution must contain the procedure and terms for appealing the ruling if it is subject to appeal.
Results and dicussion
In some cases, the law directly provides for requirements for the content of the definition. For example, in accordance with the third part of Article 74 of the Civil Procedure Code, the ruling on a court order briefly sets out the essence of the case under consideration, specifies
information about the parties and circumstances to be clarified, and evidence to be collected by the court performing the order. This ruling is binding on the court to which it is addressed. A ruling on a court order is not subject to appeal or protest. The court ruling on the termination of proceedings on the case must necessarily indicate that it is not allowed to re-apply to the court on a dispute between the parties on the same subject and grounds.
If the court does not go to the deliberation room, then only the operative part is indicated in the content of the ruling, which must contain the information specified in subitems 4), 5) and 6) of the first part of Article 269 of the Civil Procedure Code of the Republic of Kazakhstan.
A ruling of a court of the first instance that has entered into legal force has the same legal consequences as a court decision.
Copies of the court ruling on suspension or termination of proceedings on the case or leaving the application without consideration to the parties participating in the case, who did not appear at the court session, are sent in the final form no later than five working days from the date of issue of the ruling, using means of communication that ensure the registration of its receipt. Conlusion
The court is obliged to send a copy of the ruling on suspension or termination of proceedings on the case to the persons participating in the case who did not appear in court within five working days from the date of issuance of the ruling in the final form or to leave the application without consideration. Since such definitions hinder the further movement of the case, they are subject to appeal in accordance with the procedure provided for in the Civil Procedure Code. A copy of the order can be sent
using any means of registration of its receipt. communication that ensures
References
1. Code of Civil Procedure of the Republic of Kazakhstan Code of the Republic of Kazakhstan dated October 31, 2015 № 377-V RKZ.
2. The Constitution of the Republic of Kazakhstan, the Constitution was adopted in a republican referendum, August 30, 1995
3. Rassakhatskaya N.A. Grazhdanskaya protsessual'naya forma [Civil procedural form: Study guide].-M., textbook 2003. -453 p.
4. Treushnikov M.S. Grazhdanskiy protsess [Civil Procedure] M:, 2019. -125 p.
5. Baymoldina Z.Kh. Proizvodstvo po peresmotru sudebnykh aktov po grazhdanskim delam: Uchebnoye posobiye [Proceedings on the revision of judicial acts in civil cases]: Textbook. - Almaty: KazGUU, 2012.
6. Speech by the President of the Republic of Kazakhstan NA Nazarbayev at the 5th Congress of Judges. - Astana. 2009
