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Section 3. Civil procedure
DOI: http://dx.doi.org/10.20534/EJLPS-17-2-18-21
Kurmanova Aigul Kuanyshevna, Aktobe Regional State University after K. Zhubanov assistant professor, candidate of legal sciences E-mail: [email protected] Muhan Mahambet,
Aktobe Regional State University after K. Zhubanov, the 3td course student
Maksat Aigerym Kaiyrgalikyzy, Aktobe Regional State University after K. Zhubanov, the 3td course student
Tabynbaev Ilyas Muratovich, Aktobe Regional State University after K. Zhubanov, the 3td course student
Legal groundwork of conciliation Institute in Civil and Criminal proceeding by the Legislation of the Republic of Kazakhstan
Abstract: In this article the authors considers the peculiarities of the reconciliation institute in civil and criminal proceedings, as well as the use in mediation procedures in civil and criminal cases by the court. Reconciliation of the parties must be regarded as a legal institution, which has the same meaning in the civil and criminal proceedings.
Keywords: conciliation, mediation, settlement agreement, Participatory procedure, civil procedure, criminal procedure.
Institute of reconciliation of the parties, in prac- by the bodies of criminal prosecution. As part of the
tice there is a long time, it is not new for Kazakhstan. ongoing work carried out in the country to improve Reconciliation of the parties must be regarded as a legislation, improve the efficiency of the authorized
legal institution, which has the same meaning in the state bodies, the introduction of mediation organi-
civil and criminal proceedings. cally «fit» into the overall legal policy as an effec-
From the 1 ofJanuary 1998, since the enactment tive alternative means of resolving civil disputes and
of the Criminal Code, the institute of reconciliation criminal law conflicts.
of the parties, used in cases of crimes small and me- As stated in the law, mediation (the procedure for
dium severity crimes, as well as in cases of serious resolving the dispute (conflict) between the parties
crimes, if they are not associated with causing death with the assistance of a mediator in order to achieve
or grievous bodily harm, and for the first time com- their mutually acceptable solution, implemented
mitted by minors. And it is possible not only in cases by voluntary agreement of the parties) can be used for
of private prosecution, but also private and public, disputes arising from civil, labor, family and other re-
where pre-trial procedural proceedings carried out lations with the participation of individuals and (or)
legal entities, as well as in the course of criminal proceedings in cases small and average weightof crimes [1, 35].
However, the law prohibits the use ofmediation in disputes, if they affect or may affect the interests ofthird parties not involved in the mediation procedure, persons found incompetent by a court, in cases where one of the parties is a public authority, as well as criminal cases of corruption crimes and other crimes against interests of public service and public administration.
The termination of the criminal proceedings and the release of a person from criminal liability is permitted only under the criminal law and criminal procedure and conditions of compulsory grounds — reconciliation without intermediaries. Procedural form is expressed in the consolidation of the results of the conciliation procedure in the form of a settlement agreement. Reconciliation of the parties shall be in the form of a settlement agreement. The settlement agreement is determined by the procedural position of the parties, the terms of reconciliation and redress, execution time. The settlement agreement must be certified by an authorized person in charge of the criminal proceedings and it is binding on the parties reconciliation. Reconciliation of the parties in cases of all forms of prosecution is a procedural matter only when it occurred notlater than the removal of the court to the deliberation room for discussing.
In the case of the criminal proceedings termination and exemption from criminal responsibility from a person who has the first criminal prosecution, should be established a probation period and take into account the involvement of the facts before the person to criminal responsibility, but ofliberation from it, as well as the facts of the crime is committed outside of the Republic of Kazakhstan. The offer to turn to mediation can be made at the request of the other party, the court or the prosecuting authority, whose production is a criminal case. Conducting the mediation carried out by mutual agreement of the parties and at the conclusion of the mediation
between the contract. The choice of a mediator (or more, at the request of the parties) is also carried out by mutual agreement of the parties, at the same time, the organization of mediators may recommend the candidature of a mediator (mediators), if the parties are directed to the specified organization of appropriate treatment. Dates of the mediation are determined by the contract on mediation.
Peculiarities of applying mediation in a criminal proceeding
The Law introduces amendments to the Criminal Code of the Republic of Kazakhstan, according to which a person who has committed a crime of minor or moderate severity (except for corruption and other crimes against interests of public service and public administration), shall be released from criminal liability or may be released from criminal liability if he reconciled with the victim, including by way of mediation and to make amends for the harm to the victim [2, part 1, 2 art. 67]. As the provisions of the law, the application of mediation procedure is possible only for criminal cases at the pre-trial stage or in the trial stages. However, an agreement on mediation does not suspend the criminal proceedings and mediation must be made within the criminal procedure law, pretrial and trial proceedings. We believe it is right, as a preventive measure to the accused may be elected to the arrest and suspension of criminal proceedings on the basis of the mediation procedure can complicate and extend the arrest.
Norms of Criminal-Procedural Code of the rights of suspects, defendants, victims are supplemented by the right to reconciliation in the order of mediation in cases established by law [2, art. 68, 69, 75]. Conclusion the parties to the agreement on the settlement of the conflict in order mediation is the ground for termination of the criminal case by the agency conducting the criminal proceedings [2, art. 51, 269, 307]. Upon termination of the mediation carried out in the framework of civil and criminal proceedings, the parties must immediately send an agreement to the court or the prosecution authority: in the case of
Section 3. Civil procedure
signing an agreement on a conflict, in other cases — a written notice of termination of mediation specifying the grounds provided by law.
Settlement procedures in a civil proceeding
According to the Civil Procedure Code of the Republic of Kazakhstan there are three types of conciliation procedures in the new edition — the first is the "settlement agreement" as a classic example of a voluntary settlement of the dispute between the parties; second, it emerged as an institution in Kazakhstan recently, in 2011, the "mediation" and the third "Participatory procedure" with the obligatory participation of lawyers [3, article 181].
The settlement agreement as an institution of dispute settlement in civil proceedings has been known since time immemorial and there is no doubt about its necessity for the participants in the process, especially when the case of the parties are persons who of relative relationships, friendly relations (to the dispute), or in a business partnership, and legal claims could be met voluntarily. It is important to note two points: first, that at the conclusion of the settlement agreement the parties may not change the subject and the bottom of the dispute (stated claims), which is possible in the mediation procedure, and second, that the settlement agreement may be concluded only in the framework of civil procedure, i. e. after filing a claim in court and payment of the state duty in accordance with the law way and size. Mediation Institute in the civil process is much wider than the usual reconciliation. The parties have the right to change the subject and cause of action in the conciliation procedure in order mediation. This is the privilege of a given category of reconciliation in civil proceedings [4].
The main differences are the use of participatory procedures in procedural law as follows:
- the first, talks in a participatory process can be carried out between the parties with the mandatory participation of lawyers, ensuring the validity of all claims of a possible agreement on the settlement of the dispute;
- second, the whole procedure takes place without the participation of the judge hearing the civil case, and without outside influence anyone to make a decision by the parties to conclude an agreement by way of negotiations between lawyers as the representatives of the plaintiff and the defendant, or the dispute between them with respect to any law;
- third, and most importantly, Participatory procedure can be used by lawyers outside the court, after organizing civil dispute, that is, without bringing an action in the courts without payment of state fees and such analog methods has not be applied before in the practice of Kazakhstan's legislation was not earlier.
Conducting participatory procedures attorneys in the interests of principals without bringing an action in court, that is, without paying the state fee, no longer walking on the courts, without tremendously wasted time and nerves, without loss of trust and broken kinship, friendship and business relationship between the parties to the dispute as the opponents. It must be a powerful tool in the arsenal of lawyers for alternative settlement of civil disputes. If the signatories of the agreement in order participatory procedures will not fulfill its obligations, the law provides the procedure as enforcement and summary (written) production (without calling the parties to the court with a reduced period of up to one month of the application), which is a guarantee of performance made by the parties on the commitments that have been achieved as a result of negotiations between lawyers.
During the conciliation proceedings in criminal and civil proceedings it must be guided not by avoiding from the responsibility of guilty or the opposite side, but for the injured party, or the extent to which the victim will feel safe in this country. Perhaps it makes sense to introduce a special conciliation procedure in criminal proceedings with the obligatory participation of the lawyers, similar participatory procedure in civil proceedings (or provide conducting participatory procedures - negotiations between the lawyers in criminal proceedings in a criminal case) with the establishment
of special procedural term for the procedure. For example, if a lawyer representing the interests of the injured party, insists on the inevitability of punishment, the lawyer ofthe suspect (or accused) person will insist on the innocence of his client. Here is a conflict of interest between the two lawyers. We need to focus on the narrative (recovery) approach in criminal proceedings, where the main actor is the victim, not a suspect
(accused), the social significance of such an approach would lead to the fact that each ofthe lawyers will think: what is more important to his client (the victim on case) — the punishment of the suspect (the accused) or the possibility ofrepentance and compensation, and most importantly, safety and absence of the element of revenge and aggression in the relationship between criminal actors.
References:
1. Сулейменов М. К., Куанышев Б. Г. Альтернативные процедуры рассмотрения споров. - В кн.: Международный коммерческий арбитраж: сб. статей и документов (на русс.и англ. яз.).
2. Code of the Republic of Kazakhstan from July 3, - 2014. - No. 226 - V "Criminal Code of the Republic of Kazakhstan".
3. Code of the Republic of Kazakhstan dated October 31, - 2015. - No. 377 - V "Code of Civil Procedure of the Republic of Kazakhstan".
4. Курманова А. К., Исмагулов К. И. Некоторые вопросы применения процедуры медиации при разрешении споров / Международный научно-популярный журнал «Наука и жизнь Казахстана». -No. 5 (41), - 2016. - ISSN 2073-333X.
