Article 59. Persons who cannot be representatives in court
Proposed option
2. Representatives on behalf of the court cannot be:
1) Persons who are not professional representatives [...];
2) Attorneys who accepted an order to provide legal assistance in violation of the requirements of the legislation of the Republic of Kazakhstan on advocacy.
Experience of Germany
Civil Process and Administrative Process
In proceedings with mandatory participation of a lawyer, all lawyers may be representatives who are capable (§ 104 of the Civil Code) and have legal capacity (in the sense of § 51 of the Civil Procedural Code) and have the appropriate authorization (in accordance with §§ 4 and of the Federal Law on Advocacy) . The permit is issued by the Bar Association. A lawyer must have the qualifications of a judge in the sense of the Law on Judges of the Federal Republic of Germany and obtain a higher legal education in one of the universities of Germany, then to successfully pass two special exams. The first exam can be called "graduation", because he surrenders in the institution where the future judge or lawyer studied. The next stage is an internship (from three and a half to four years) in the organs of the court, the prosecutor's office, the notary's office or the bar. After the end of the internship, it's time to pass the second exam, the so-called, exam for practical skills. This exam is conducted under the auspices of the Ministry of Justice of the relevant administrative territory (land).
According to § 7 of the Federal Law on Advocacy, a permit is not issued if the candidate (counsel):
decision of the Federal Constitutional Court lost one of the fundamental rights;
2. because of criminal punishment, he cannot hold a position in the civil service;
3. in consequence of the court decision that entered into legal force, it is excluded from the Bar and since the coming into force of this decision 8 years did not pass yet, Part 5 does not concern it;
4. if, following a disciplinary proceeding, the judicial decision to dismiss him entered into legal force;
5. behaved in a way that creates the impression that he is not worthy of being an advocate;
6. fights for the democratic system of society in an illegal manner;
7. on health condition, not only temporarily unable to properly perform the duties of a lawyer;
8. engaged in activities that are not related to advocacy, which in particular may undermine the position of the lawyer as an independent body of justice or confidence in his independence;
9. is in a state of bankruptcy; Bankruptcy means the opening of a bankruptcy proceedings against the property of a candidate, or the case of a candidate is in the court to which the case for execution of the judgment is subject (paragraph 2 of § 26 of the Bankruptcy Law, § 882b of the Civil Procedure Code);
10. is a judge, civil servant, military or soldier for a certain period, or performs the duties assigned to him on a voluntary basis, or such rights and duties are provided for by §§ 5, 6, 8 and 36 of the Law on Deputies of February 18, 1977 (BGBl. I p. 297) or the relevant legal regulations.
If there is a prohibition on representation in accordance with §§ 114, 114 a, 150 et seq of the Federal Law on Advocacy, the court shall remove the representative (ie the lawyer) from the case.
Also, according to §§ 50, 51 of the Civil Procedural Code, the parties themselves must have standing and procedural legal capacity.
The experience of Latvia
Civil Procedure
In accordance with the Civil Procedure Law, the following subjects cannot act as representatives in the civil process:
1) persons who have not reached the legal age;
2) persons under guardianship;
3) persons who, by a court decision, were deprived of the right to conduct cases of other persons;
4) persons who are in related relations of the third degree, or in blood relations of the second degree with the judge who is considering the case;
5) a person who represents legal assistance to the other party in the proceedings in this case or in another case related to him;
6) the mediator who took part in the mediation procedure in this case or the case which is connected with it.
Exception from the above-mentioned circle of persons: any individual can be an authorized representative in the civil process (this can be a lawyer, an attorney or even a person without a legal education). In addition, there are restrictions in the cassation instance where only a lawyer can be a representative.
Administrative process
In the administrative process, very similar restrictions are imposed on representatives. Article 36 of the Administrative Procedure Law provides for a person who cannot be a representative in the administrative process:
1) a person who has not reached the age of majority or has been recognized incompetent in the manner prescribed by law;
2) a person who is deprived of the right to conduct cases of other persons by a court decision;
3) a person who, therefore, has provided legal assistance to another party to this administrative process.
Additionally, the Administrative Procedural Law determines persons who cannot represent the institution. That is, individuals cannot represent the institution in the administrative process, and also act on the side of the institution and carry out procedural actions under the following circumstances:
1) for whom a conflict of interest arises or may arise in a particular case;
2) concerning the objectivity of which there are reasonable doubts;
3) on which other restrictions provided by law apply.
Article 58. Professional representation
Proposed option
4. Professional representatives have guarantees of professional secrecy. Professional secrets are [...]. Professional representatives, [...] do not have the right to disclose, as well as to use in their interests or in the interests of third parties any information received in connection with the provision of legal assistance. [...]
5. It is prohibited to require from professional representatives, from organizations, whose employees, members or participants they are, and from employees and contractors of such organizations to provide any information related to the provision of legal services to a certain person, except as provided by law.
6. Professional representatives have to: […]
Experience of Germany
Civil Process and Administrative Process
The Federal Law on Advocacy provides for the same standards as the Civil Procedure Code of the Republic of Kazakhstan, on the obligation to not disclose secrets. According to paragraph 2 of § 43 a of this law, this obligation relates to all that the attorney learned during the course of his legal practice, with the exception of information that is generally known or is not confidential in its meaning. Also, a lawyer must oblige his employees to keep secrets. Each client must rely on what the lawyer will not reveal secrets, even after completing the legal relationship between them. The duty to disclose the secret is aimed at protecting the client and only with the consent of the client or for especially important reasons for preserving the public good, such as a health threat or the investigation of particularly serious crimes, an attorney can open this secret.
In addition, the lawyer is not entitled to assume obligations that threaten his professional independence, § 43 a of the Federal Law on Advocacy, as well as represent conflicting interests, § 43 § a of the Federal Law on Advocacy.
The experience of Latvia
In Latvia, there are stipulated similar rights and responsibilities that are proposed to be submitted to the Civil Procedural Code of the Republic of Kazakhstan for professional representatives, and are directly regulated by a special law "Law on Advocacy". Additionally, the duties and rights of the Bar Association derive from the Constitution and other legal norms.
One of the main principles of the activity of the Bar Association is the preservation of professional secrecy. The confidentiality of the relationship between a lawyer and a client is regulated in the law on advocacy, which provides that lawyers should be independent and their professional activities should be related only by the law. Article 6 of the said law provides that state departments and local government institutions, courts, prosecutors and pre-trial investigative Bodies should guarantee the independence of lawyers.
It is forbidden: 1) to interfere with the professional activity of lawyers, to exert influence or pressure on them; 2) request information and explanations from lawyers, as well as interrogate them as witnesses about the facts that they became aware of in connection with the provision of legal assistance; 3) to control postal and telegraph correspondence and documents that lawyers received or prepared in the provision of legal assistance, to check or confiscate them, as well as to carry out search in order to locate and confiscate such correspondence and documents; 4) to control the information system and means of communication, including electronic means of communication used by lawyers when providing legal assistance, to remove information from them and interfere with their work; 5) request information from clients regarding the provision of assistance by lawyers and the content of assistance; 6) to subject lawyers to any sanctions or threats in connection with the provision of legal assistance to clients in accordance with the Law 7) to engage lawyers for written or oral statements that they have made in the conscientious performance of their professional duties.
This law applies only to sworn advocates, and not to lawyers.
Article 61. Authorization of representative
Proposed option
1. The procedural powers of the representative are confirmed by a duly executed power of attorney. [...]
2. The power of attorney shall be submitted to the court in writing or in the form of an electronic document certified by an electronic digital signature of the principal.
3. The powers of an attorney to conduct a particular case are certified by an order [...]
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