Application for the issuance of a duplicate writ of execution
According to Article 242 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), in case of loss of the original writ of execution or court order (hereinafter referred to as executive documents), the court that issued the decision or court order may issue duplicates of executive documents at the request of the recoverer or the presentation of the bailiff, at the request of the judicial authority.
An application for the issuance of a duplicate enforcement document may be filed with the court before the expiration of the deadline set for the submission of the enforcement document for execution.
If a writ of execution was lost during execution and the recoverer became aware of it after the deadline for submitting it for execution expired, an application for the issuance of a duplicate writ of execution may be filed with the court within one month from the day when the recoverer became aware of the loss of the writ of execution.
The court shall consider and resolve the application for the issuance of a duplicate enforcement document within ten working days from the date of its receipt by the court.
An application for the issuance of a duplicate executive document is considered at a court hearing with notification of the persons participating in the case about the time and place of the meeting, however, their failure to appear is not an obstacle to resolving the issue of issuing a duplicate.
When considering an application for the issuance of a duplicate executive document, the court verifies and examines evidence of the loss of the executive document.
The court ruling may be appealed and appealed to the court of appeal, whose decision is final.
So, based on the procedural rule, it follows that a duplicate is issued in case of loss of the enforcement document at the request of the claimant.
A duplicate may also be issued on the recommendation of the bailiff, if the enforcement documents are lost due to the fault of the bailiff, as well as at the request of the judicial authority.
An application for the issuance of a duplicate is submitted to the court, which issued the executive document. When resolving the issue of issuing a duplicate enforcement document, the court issues a ruling that satisfies the application or refuses to satisfy it.
The deadline for applying to the court for a duplicate is three years before the deadline for submitting an enforcement document for execution (see article 11 of the Law "On Enforcement Proceedings and the Status of Bailiffs").
If the enforcement document was lost during execution and the deadline for submitting it for execution has passed, the recoverer has the right to apply to the court with such a statement within one month from the day when the recoverer became aware of the loss of the enforcement document.
These deadlines are procedural, therefore, if the deadline for applying to the court for the issuance of a duplicate is missed, then at the same time as the application for the issuance of a duplicate executive document, an application for the restoration of the deadline must be submitted.
If the court does not restore the deadline, the court refuses to issue a duplicate of the enforcement document.
The issuance of a duplicate enforcement document with a missed deadline without a request for reinstatement of the deadline must be refused acceptance of the application by a court ruling.
In the court ruling, it is necessary to indicate the reason for the refusal and explain to the claimant his right to reapply to the court with a similar statement, attaching an application for restoration of the missed deadline.
The question arises, at what time is the bailiff or the Department of Justice required to apply to the court for a duplicate writ of execution in case of loss?
For a full review of these materials, it is necessary to consider the analyzed statements at a court hearing according to the general rules of civil procedure in the court of first instance with notification of the persons participating in the case about the time and place of the meeting. However, their failure to appear is not an obstacle to resolving the issue of issuing a duplicate.
Due to the fact that the basis for satisfying an application for the issuance of a duplicate writ of execution is the loss of the original, in some rulings issued by judges, the main motivation for satisfying the application is the phrase about the loss of the original writ of execution without confirming the evidence verified in court. At the same time, the court must find out at the hearing: not only was the writ of execution lost, but also when, by whom and under what circumstances?
He must confirm his conclusions on these issues with evidence verified at the court hearing. The main proof of the loss of the original writ of execution in all the analyzed materials is a certificate issued by the bailiff stating that there is no writ of execution, which is checked against the book of incoming enforcement documents.
However, this certificate may not always serve as proof of the loss of a writ of execution, since in accordance with Article 241 of the CPC, a writ of execution is issued by the court to the claimant or, at his request, sent by the court for execution.
Upon receiving this document, the applicant decides for himself what to do with it: take it to the bailiff or keep it.
Therefore, it is necessary to find out whether the applicant actually received the writ of execution in his hands or whether there is an application in the file for sending the writ of execution to the bailiff, if he received it in his hands, then where he took it for execution.
The drafting of judicial acts (rulings) continues to be careless, brief, and without reflecting the grounds for issuing a duplicate writ of execution.
Thus, on April 20, 2016, the specialized interdistrict economic court of the Pavlodar region issued a duplicate writ of execution to the RSU "Ekibastuz Territorial Department of the Department of Justice of the Pavlodar region" to recover the amount from the PC "U" in favor of the RSE for PCV "K" (the amount is not specified).
However, from the entire content of the judicial act, it is impossible to determine on the basis of which court decision (court order) a duplicate writ of execution was issued.
There is no indication of the judicial act with the date of its issuance. The question of the circumstances under which the executive document was lost has not been investigated.
The case on the issuance of a duplicate writ of execution is considered by the court that issued the writ of execution (court order) at a court hearing within ten working days from the date of its receipt by the court.
Applications for the issuance of a duplicate executive document are paid for by the state fee (see subparagraph 11) of paragraph 1 of Article 610 of the Tax Code).
The applicant indicates in the application the circumstances of the loss of the enforcement document and is obliged to provide the court with evidence of the loss of the enforcement document and evidence confirming that the enforcement document has not been executed (partially executed).
When considering an application, the court has the right to summon the bailiff who initiated the enforcement proceedings, as well as the persons participating in the enforcement proceedings, to clarify whether and to what extent the execution has been carried out.
If the court finds that the execution has been partially carried out, this must be indicated in the court ruling. But on this basis, it is impossible to change the amount of the penalty in the duplicate, therefore the duplicate must completely repeat the lost executive document.
Partial execution must be taken into account by the bailiff during further execution.
In the event that the court finds that a decision has been executed on the lost executive document, the court has no right to issue a duplicate.
A duplicate executive document has the same legal force as a lost one. In terms of content, it must completely coincide with the executive document. It differs only in that the duplicate is marked "Duplicate".
If a lost executive document is found, it becomes invalid from the moment the duplicate is issued, so execution on it is no longer possible.
The court ruling may be appealed and appealed to the court of appeal according to the rules established by Article 429 of the CPC, the decision of which is final.
Regulatory legal framework.
- The Constitution of the Republic of Kazakhstan dated August 30, 1995;
- The Civil Procedure Code of the Republic of Kazakhstan dated October 31, 2015 No. 377-V SAM.;
- The Law of the Republic of Kazakhstan "On Enforcement proceedings and the status of bailiffs" dated April 2, 2010 No. 261-IV;
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the execution of judicial acts in civil cases" dated June 29, 2009 No. 6 (effective during the generalization period, subsequently expired on March 31, 2017);
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the application by courts of certain norms of legislation on enforcement proceedings" dated March 31, 2017 No. 1.
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