The decision of the court of first instance was canceled

Article 9 of the Civil Code of the Republic of Kazakhstan establishes the right to protection of civil rights by the court.

Participants in commodity-money relations are periodically forced to apply to the judiciary for the protection of their rights and legitimate interests.

So, in order to apply to the judiciary for the protection of their rights and legitimate interests, civil procedural legislation regulates the procedural order that everyone who applies to the judiciary for protection must follow.

One of the procedural requirements is the observance of pre-trial or out-of-court procedures.

The pre-trial procedure for resolving a dispute is the presentation of written claims before applying to the judicial authorities. The pre-trial procedure may be regulated by the Agreement or separate norms of the current legislation (for example, under the Bank Loan Agreement).

Out-of-court settlement of a dispute is an appeal to a private notary in order to make an executive inscription. An extrajudicial procedure is possible if there is a documented, indisputable claim from the creditor (collector) to the debtor (debtor), including the debtor’s (debtor’s) response to the creditor’s (collector’s) claim for recognition of claims.

Thus, LLP “K” applied to the judicial authority with property claims against LLP “S” and Citizen “G” for the joint and several recovery of the amount of debt and the amount of the penalty. The statement of claim filed by LLP “K” was accompanied by a letter on recognition of the amount of the principal debt of Citizen “G”.

By the decision of the judicial authority, the statement of claim of LLP “K” was returned due to non-compliance with the out-of-court settlement of the dispute (letter on recognition of the amount of the principal debt of Citizen “G”).

Disagreeing with the Determination of the judicial authority, LLP “K” filed a private complaint with a higher court (appellate instance), with a request to cancel the Determination of the court of first instance and transfer the case for a new trial. In substantiating the arguments that served as the basis for the cancellation of the Ruling of the court of first instance, LLP “K” in a private complaint indicated that, firstly, between the parties, the pre-trial procedure for resolving the dispute was regulated, which, in turn, LLP “K” exhausted by presenting LLP “S ” and Citizen “G” of written claims for payment of the amount of debt and the amount of the penalty, however, the claims of LLP “K” were left unanswered.

Also, LLP “K” in a private complaint indicated that an out-of-court settlement of the dispute in this case is impossible due to the fact that there is a controversial claim, that is, a claim for the recovery of a penalty, with which neither LLP “S” nor Citizen “G” Agree, the answers to the recognition of the amount of the penalty did not provide.

The Court of Appeal, agreeing with the arguments of the private LLP “K”, canceled the ruling of the court of first instance, and remanded the case for a new trial.

In summary, judicial practice shows that if there is one of the requirements that is disputable, an out-of-court settlement of the dispute is not necessary and you have the right to apply to the judicial authority for the protection of your rights and legitimate interests.

The article was prepared by Matsura D.L., Senior Associate at KORGAN Law Company, who took an active part in the civil case to cancel the said court ruling.