Comments on article 246. Postponement and installment of execution of a court decision, changing the method and procedure for its execution, approval of a settlement agreement or agreement on dispute settlement (conflict) in the mediation procedure of the Civil Procedure Code of the Republic of Kazakhstan
1. The court that issued the decision or court order in the case, as well as the court at the place of execution of the decision, may, at the request of the state bailiff for enforcement proceedings in which the state is the recoverer, and (or) at the request of the parties to the enforcement proceedings, change the method or procedure for its execution, at the request of the parties to the enforcement proceedings, postpone or to delay the execution of a court decision if circumstances arise that make it difficult or impossible to perform enforcement actions.
2. At the request of the parties to the enforcement proceedings, the court has the right to approve a settlement agreement or an agreement on the settlement of a dispute (conflict) concluded between them through mediation.
3. The petition of the state bailiff or the statement of the parties in the enforcement proceedings, as well as the settlement agreement concluded between them or the agreement on settlement of the dispute (conflict) in the order of mediation are considered in court session. The persons participating in the case are notified of the time and place of the meeting, but their non-appearance is not an obstacle to the resolution of the petition or application.The court shall consider an application, a petition for postponement and installment of the execution of a court decision, a change in the method and procedure for its execution, approval of a settlement agreement or an agreement on the settlement of a dispute (conflict) through mediation within ten working days from the date of receipt of the application to the court.
4. The court rulings specified in part three of this Article may be appealed, protested: on postponement, installment of execution of a court decision, on changing the method and procedure for its execution in accordance with the procedure established by part three of Article 238 of this Code; on approval of a settlement agreement, an agreement on the settlement of a dispute (conflict) through mediation in in accordance with the seventh part of Article 177 of this Code.
1. Issues of postponement and installment of execution of a court decision, changes in the method and procedure of its execution, in addition to the commented article, are regulated by Article 238 of the CPC. Paragraphs 4 and 5 of the Supreme Court's normative resolution No. 6 of June 29, 2009 "On certain issues of the execution of judicial acts in civil cases" explain the procedure for applying the CPC rules on postponement, installment or modification of the method and procedure for the execution of a court decision, and indicate how the content of almost similar provisions of the law differs.According to the grounds provided for in Article 238 of the CPC, regardless of the period of their occurrence (before or after the issuance of a judicial act), the execution of a judicial act may be postponed, delayed in installments, or the method and procedure for its execution may be changed., if the judicial act is not enforced in accordance with the procedure provided for in Articles 143 and 241 of the CPC. For the application of Article 238 of the CPC, the question of whether a judicial act has entered into force or not has no legal significance.According to the grounds provided for in Article 246 of the CPC, postponement, installment plan or changes in the method and procedure of execution of a judicial act may be granted by the court only if: enforcement proceedings have been initiated by the bailiff; The grounds provided for in this provision of the law are available by the time the bailiff commits the enforcement actions.; there is evidence that makes performing executive actions difficult or impossible.In each specific case, the court must determine for itself whether there is really a need to grant a deferral, an installment plan, or a change in the method and procedure for executing a court decision. In this case, the court must take into account the interests of both the debtor and the recoverer, their property status and other circumstances of the case that deserve attention, which must be indicated in the reasoning part of the ruling.As circumstances that make it difficult to execute a judicial act, there may be a lack of money, the defendant's lack of property, the impossibility of transferring the thing, for example, due to its destruction, and the recoverer may, for example, refuse to receive the awarded property, referring to, that it has gone bad, etc.In the rulings issued by the court on the issue of deferral and installments, it is necessary to indicate until what time the deferral or installment plan is established.The commented article indicates the subjects, i.e. persons who have the right to apply to the court with such a statement, petition. The issue of postponement and installment of execution of a court decision is decided by the court upon the application of the parties to the enforcement proceedings.In accordance with article 15 of the Law "On Enforcement Proceedings and the Status of Bailiffs", the parties to the enforcement proceedings are the recoverer and the debtor. Therefore, the bailiff does not have the right to raise the issue of postponement or installment before the court, since he is not a party to the enforcement proceedings.The CPC stipulates that the parties and the state bailiff for enforcement proceedings for which the state is the recoverer may apply to the court with an application or petition for changing the method and procedure for executing the decision.The issue of postponement or installment of execution of a court decision, changes in the method and procedure of execution of a court decision is resolved by the court that issued the decision or court order; at the place of execution of the decision or court order.For example, only the court that determined its content, i.e. the court that issued the final decision on the case, can explain the decision. As for the postponement, installment of execution of the decision, and changes in the method and procedure of execution, the resolution of these issues does not relate to the substance of the decision, to its content, but affects the subsequent execution of this decision, and is mainly related to the circumstances that arose after the decision was made.Consequently, appeals regarding the issues of postponement or installment of the execution of the court's decision, changes in the method and procedure for the execution of the court's decision to the court that considered the case at first instance and issued the decision., but the decision of which was overturned by a higher authority with the issuance of a new decision will be correct. The law also does not prohibit applying to the court with an application (petition) at the place of execution of a court decision or court order.
2. The commented article provides that, on the basis of an application by the parties at the stage of the initiated enforcement proceedings, the court has the right to approve a settlement agreement or an agreement on the settlement of a dispute (conflict) concluded between the parties to the enforcement proceedings through mediation.A settlement agreement is a deal concluded by the parties and approved by the court. Under such a transaction, the parties determine their material rights and obligations by mutual concessions, ending the dispute that has arisen between them. Only the parties can conclude an amicable agreement. To do this, the parties apply to the court with a statement asking for approval of the terms of the settlement agreement. The settlement agreement, drawn up as an independent document, must be attached to the case.A settlement agreement is approved by the court if it is lawful and does not violate anyone's rights and legally protected interests (see commentary to Article 48 of the CPC). Having approved the settlement agreement, the court issues a ruling on this. The content of the definition must comply with the requirements of Article 177 of the CPC (see the commentary). The ruling is the basis for the termination of enforcement proceedings (see article 47 of the Law "On Enforcement Proceedings and the Status of Bailiffs").An agreement on the settlement of a dispute (conflict) through mediation is approved by the court in compliance with the requirements provided for in Article 179 of the CPC (see the commentary to this article).The issue of approving a settlement agreement and an agreement on the settlement of a dispute (conflict) in mediation is considered by the court of first instance that issued the decision or court order, or at the place of execution of the decision or court order.
3. An application for postponement or installment of execution of a decision, a change in the procedure and method of execution of a decision, approval of a settlement agreement or an agreement on settlement of a dispute (conflict) through mediation shall be considered by a court in open court, which shall notify the persons involved in the case, but their failure to appear does not serve as a basis for postponing the case and for resolving the issue raised. the question is on the merits. Such applications are considered by the court within ten working days from the date of receipt of the application to the court.
4. A private complaint may be filed against a court ruling on postponement or installment of execution of a decision or on changing the method and procedure for its execution in accordance with the procedure established by part three of Article 238 of the CPC (see commentary). A private complaint may be filed against a court ruling on the approval of a settlement agreement or an agreement on the settlement of a dispute (conflict) through mediation in accordance with the procedure established by part seven of Article 177 of the CPC (see commentary).
LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN
Astana, 2016
UDC 347 (574)
By 63
ISBN 978-601-236-042-4
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