A complaint about the actions of the bailiff to challenge the bidding.

Legislative acts do not provide for which circumstances constitute violations during the bidding process and serve as grounds for recognizing them as illegal. The generalization showed that the parties, challenging the results of the bidding, indicate as grounds the violations that the bailiff committed during the preparation for the bidding, as well as violations that are directly related to the bidding. The procedure for the sale of seized property is regulated by the Law on Enforcement Proceedings and the Rules, so the courts must take into account their instructions. At the same time, the court must understand that formal and insignificant circumstances cannot lead to the illegality of the bailiff's action. Illegal actions should be recognized that affected the results of the auction and led to infringement of the rights and legitimate interests of the debtor or the recoverer. For example, by the decision of the Atyrau City Court of April 11, 2014, the complaint of IP "K" was denied. By the decision of the appeals board dated June 03, 2014, the decision was overturned, and a new decision was made to satisfy the complaint. The actions of the bailiff O. were recognized as illegal. on bidding dated March 20, 2014. The cassation board, having overturned the said decision, agreed with the conclusions of the court of first instance and upheld the decision of the Atyrau City Court. It followed from the case file that by the decision of February 24, 2009, which entered into force, debts in the amount of 29,147,817 tenge were collected from IP "K" in favor of JSC "A". The bailiff initiated enforcement proceedings, carried out all necessary actions, and on January 28, 2014, the debtor's property was put up for auction. The auction was originally scheduled for 2 p.m. on March 18, 2014, but due to the bailiff's illness, it was postponed to 2 p.m. on March 20, 2014. Applications for participation in the auction were submitted by N. and B. on March 17, 2014. The guarantee fee was paid by them on the day of the auction on March 20, 2014. In accordance with the requirements of paragraph 1 of Article 80 of the Law on Enforcement Proceedings (as amended as of February – March 2014), persons wishing to participate in the auction are required to submit an application for participation in the auction, a subscription stating that there are no obstacles to their participation in it and deposit cash into the control account. a guarantee fee in the amount of five percent of the initial value of the property or the current account of a private bailiff.

A complaint about the actions of the bailiff to challenge the bidding.

The acceptance of applications for participation in the auction by the auction organizer or a private bailiff ends one day before the start of the auction. The courts found that the applications from N. and B. were indeed accepted by the bailiff on March 17, 2014, and the guarantee fee was paid by them immediately before the start of the auction for the sale of the disputed object. At the same time, this circumstance did not significantly affect the course of execution of the court decision and did not lead to a violation of the rights and legitimate interests of the debtor IP "K" or the recoverer. Therefore, by the decision of the Supervisory Judicial Board for Civil and Administrative Cases on April 22, 2015, the decision of the Cassation Judicial Board of the Atyrau Regional Court of July 16, 2014 was left unchanged. In accordance with Part 1 of Article 250 of the CPC, it is stipulated that a complaint may be filed against the actions (inaction) of the bailiff to execute enforcement documents, including challenging tenders during enforcement proceedings or refusing to commit such actions by the recoverer or debtor. The complaint is filed with the district (city) court of the territorial area served by the bailiff or at the place of registration of a private bailiff within ten working days from the date of the action (refusal to perform the action) or from the day when the recoverer or debtor, who was not notified of the time and place of the action by the bailiff, became aware of it. The complaint is filed at the place where the enforcement actions were performed if the territorial area served by the bailiff or the place of registration of a private bailiff are located in the same locality as the place where the enforcement actions were performed. The procedure for appealing against the actions (inaction) of a bailiff in the execution of a court decision is not highlighted in the CPC in a separate chapter as an independent institution. Therefore, this category of disputes should be considered taking into account the specifics provided for in Article 250 of the CPC. Judicial practice shows that disputes over the actions (inaction) of a bailiff in the execution of enforcement documents, including challenging tenders in the course of enforcement proceedings, are considered by the courts both according to the rules of Article 250 of the CPC (formerly Article 240-5 of the CPC) and in claim proceedings. The results of the auction are formalized by the protocol on the results of the electronic auction, which is signed by the bailiff, the buyer and the operator of the EETP. The protocol serves as the basis for concluding a contract of sale between the bailiff and the buyer, and the contract of sale is the basis for registering ownership rights (paragraphs 47, 48 of the Rules and article 83 of the Law on Enforcement Proceedings).

By virtue of paragraph 6 of Article 406 of the Civil Code, when selling property in accordance with the procedure established for the execution of court decisions, the bailiff acts as the seller. The Law on Enforcement Proceedings and the Rules regulate the bidding procedure, however, they do not contain any restrictions that would prevent a bailiff from concluding a sale agreement without proper notification or familiarization of the recoverer or debtor with the auction results and providing them with ten calendar days from the date of notification or familiarization to appeal the bailiff's actions to challenge the auction (article 250 GP This gives the bailiff the right to conclude a purchase and sale agreement with the buyer after making the payment. Therefore, the courts have a question: if a contract of sale has been concluded between the bailiff and the buyer, in which proceedings should the court consider the disputes that have arisen. For example, in the case of the complaint of LLP "D", it follows that the specified LLP appealed to the Ridder City Court with a complaint against the actions of a private bailiff J. As can be seen from the complaint, LLP "D" requested: to recognize the actions of the private bailiff on the sale of property as invalid; to cancel the decision of the private bailiff on the appointment of repeated auctions for the sale of property dated May 29, 2015; to cancel the resolution on the transfer of property for auction dated June 17, 2015; to invalidate the contract of sale. The court found that the property was put up for auction, some of which did not belong to the debtor. Therefore, by the decision of the Ridder City Court of October 13, 2015, the complaint of D LLP was partially satisfied. The court declared the actions of the private bailiff on the sale of property invalid, canceled the decision of the private bailiff on the appointment of repeated auctions for the sale of property dated May 29, 2015, canceled the decision on the transfer of property to auction dated June 17, 2015 and invalidated the purchase agreement. In this case, the court considered the dispute with the specifics provided for in Article 240-5 of the CPC (as amended on July 13, 1999), although the deadline for applying to the court was missed. By the decision of the Taraz City Court of April 9, 2015, in the claim of S. to the private bailiff, LLP "G", a third party of JSC "B" on the cancellation of auctions for the sale of collateral, the bailiff's decision to hold repeated auctions, the decision to recognize secondary auctions as having taken place, the act of acceptance and transfer of documents and bringing the parties to their original position, on the recognition of the property valuation report dated October 3 2013 were illegal, and the recognition of the illegal purchase and sale agreement dated June 18, 2013 and the barter agreement dated December 14, 2013 was refused.

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