Article 367 of the CPC of the RK (Civil Procedure Code of the Republic of Kazakhstan) provides that a decision rendered by a court of the first instance can be annulled on appeal with the termination of proceedings or leaving the application without consideration on the grounds specified in Articles 247, 249 of this Code. Here we would like to consider subparagraph 9) of Article 249 of the CPC, according to which the court leaves the application without consideration, if an application for the return of the claim was submitted.
And if earlier this provision was supplemented by the condition that for leaving the claim without consideration by the court on this basis it was necessary for defendant not to require consideration of the case, the Law of the Republic of Kazakhstan dated November 17, 2014 No. 254-V has excluded this condition.
In our opinion, the decision of legislators looks at least strange, since in practice this leads to the following.
The plaintiff, who lost the case in the court of the first instance and filed an appeal to a higher court, in the course of the consideration of the case in the appeal proceedings, shall be entitled to apply for leaving the claim without consideration and the court in this case, despite the opinion of the defendant, is obliged to leave the claim without consideration, that is, in fact, reverse the decision of the court of the first instance and return the parties to the state that existed prior to the filing of the claim.
At the same time it does not deprive the plaintiff’s right to re-file a new lawsuit in the Court of the First Instance (as it may be directed to another judge) and re-sue. And so it can be continued until the decision of the court will not be satisfactory for the plaintiff.
As for the compensation by the plaintiff of the legal costs incurred by the defendant (on payment for representative’s support, examination, etc.), even despite the fact that the court of the first instance in case of failure to satisfy the claim to recover these costs from the plaintiff, in case of annulment of the court decision by the court of appeal in relation to a statement filed by the plaintiff concerning the return of the claim, no one becomes liable for compensation of this costs.
We believe that it is unfair, and from the very beginning leads to a more unprotected position of the defendant in respect of the unjustifiably filed lawsuit by depriving him of the right to reimburse the legal costs, which ultimately violates the principle of equality of the parties.
And although it is not clear by what the developers of the changes mentioned above were guided, fortunately, in the new draft of the Civil Procedure Code, this legal oversight is expected to be removed.