Collection of payment amounts for the activities of a private bailiff.

The generalization showed that judicial practice in this category is ambiguous. Based on the position of individual courts, for example, when sending a writ of execution at the place of work, conducting banking operations, etc., the bailiff does not actually execute the judicial act, but performs only supervisory functions, effectively assigning enforcement to other bodies (bank, place of work, etc.). And since the bailiff does not perform any active actions, the provisions of article 118 of the Law on Enforcement Proceedings governing the payment of a private bailiff are not applicable in these cases. Some courts believe that payment should be collected from the debtor when conducting active actions (selling the debtor's property at auction and other actions), therefore, they make decisions that recognize the actions of private bailiffs to approve the amount of payment as illegal and refuse to pay for the work of a private bailiff or reduce the amount of payment at their discretion with taking into account the principle of justice and reasonableness. This position of the courts does not correspond to the importance of the institution of private execution, as well as legislation regulating the payment of bailiffs. By virtue of article 116 of the Law on Enforcement Proceedings, a private bailiff independently finances his activities. Article 113 of the Law on Enforcement Proceedings provides for the procedure for reimbursement of expenses for performing enforcement actions, approved by Order No. 58 of the Minister of Justice of the Republic of Kazakhstan dated February 13, 2014.

In addition to the expenses provided for in Article 113 of the Law on Enforcement Proceedings, a private bailiff is paid for his activities in accordance with Articles 118, 120 of the Law on Enforcement Proceedings, the amount of which is determined by Resolution of the Government of the Republic of Kazakhstan dated May 4, 2014 No. 437 "On approval of the amount of payment for the activities of a private bailiff" as amended by the resolution Government of the Republic of Kazakhstan No. 732 dated September 02, 2015. It follows from the meaning of this resolution that a private bailiff is paid a differentiated amount depending on the category of the executed judicial act and the amount collected (the higher the amount, the lower the percentage of remuneration). The law regulates the issue of paying for the activities of a private bailiff when the parties have agreed on the execution, bypassing it. Thus, in accordance with paragraph 3 of article 120 of the Law on Enforcement Proceedings, the debtor's execution of an enforcement document, bypassing a private bailiff, does not exempt him from paying the actual costs incurred for the execution and payment for the activities of a private bailiff. For example, the decision of the Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan dated September 22, 2015 upheld the decision of the Bostandyk District Court of Almaty dated July 28, 2014, the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Almaty City Court dated October 30, 2014 and the decision of the cassation Judicial board in the case of the complaint of CB JSC against the actions of the bailiff.

It followed from the case materials that, based on the application of CGT C LLP dated April 1, 2014 for the adoption of an enforcement document dated March 20, 2014 on the recovery of the amount owed from CB JSC in favor of CGT C LLP, enforcement proceedings were initiated by a private bailiff N. on April 1, 2014 On April 2, 2014, a notice was issued on the need to enforce the court decision and a requirement to provide information on the property status, source of income, and all accounts receivable of the Bank, which were handed over to the Bank on the same day. On April 4, 2014, the Bank provided a response stating that it was impossible to comply with the request of a private bailiff due to the attachment of documents to the request to be completed by an individual and the Bank's voluntary execution of the judicial act. In this regard, the resolution of the private bailiff N. dated April 11, 2014 approved the amount of payment for the activities of the private bailiff in the amount of 2,535,891.15 tenge, which was received by JSC "Ts" on April 14, 2014 and executed voluntarily. JSC "Ts" filed a complaint with the court, asked to recognize the actions of a private bailiff as illegal, and in support of its position indicated that it voluntarily executed the court's decision, bypassing the private bailiff, therefore the payment order was made illegally. In accordance with paragraph 3 of article 120 of the Law on Enforcement Proceedings, the debtor's execution of an enforcement document, bypassing a private bailiff, does not exempt him from paying the actual costs incurred for the execution and payment for the activities of a private bailiff.

Taking into account paragraph 3 of Article 120 of the Law on Enforcement Proceedings, the court, with the conclusions of which the higher courts agreed, dismissed the complaint and recognized the actions of the bailiff in issuing the decision of April 11, 2014 as lawful, since the court's decision to recover the amount of debt from JSC "Ts" in favor of LLP "CGT S" executed during the period of the initiated enforcement proceedings and the private bailiff under execution. By virtue of part 5 of Article 37 of the Law on Enforcement Proceedings, it is stipulated that after the initiation of enforcement proceedings, any performance of the debtor's duties to the recoverer must take place with mandatory notification of the bailiff. Therefore, if the enforcement document is being executed by a private bailiff, the parties who have agreed to voluntarily execute the judicial act have the right to apply to the bailiff for the return of the enforcement document (subparagraph 1 of paragraph 1 of Article 48 of the Law on Enforcement Proceedings). In this case, the recoverer reimburses the bailiff only for the actual execution costs incurred.

If the parties have not submitted such a request, then by virtue of paragraph 3 of article 120 of the Law on Enforcement Proceedings, they are obliged, in the case of voluntary execution of the enforcement document, to make payment, since the execution occurred as a result of the actions of the bailiff expressed in certain requirements to the debtor to execute the enforcement document. According to part 2 of article 105 of the Law on Enforcement Proceedings, the execution of a decision on reinstatement is considered completed from the moment the unlawfully dismissed or transferred employee is actually allowed to perform his former duties, following the issuance of an act by the employer canceling his unlawful act of dismissal or transfer. BSR LLP appealed to the court against the actions of a private bailiff of the executive district of the Karaganda region. and the cancellation of the bailiff's decision to approve the amounts of payment for his activities on the grounds that the decisions regarding the reinstatement of the employee at work were executed before the initiation of enforcement proceedings.

During the court's consideration of the case, it was established that by a court decision dated December 02, 2015, T. was reinstated at her former place of work, and therefore, on the same day, the court issued a writ of execution to the plaintiff, with which she immediately applied to the administration of the enterprise, but the latter was not allowed to work, after which she was forced to apply She went to a private bailiff and only on the evening of December 03, 2015, was she informed of the defendant's reinstatement order, and on December 04, 2015, she began work.

The court, applying the provision of the norm of Article 120 of the Law on Enforcement Proceedings, concluded that the actions of the private bailiff G. were lawful, since they were committed within the framework of the Law on Enforcement Proceedings, within the powers of the bailiff, within the framework of the initiated enforcement proceedings. By a court decision of January 05, 2016, the complaint was denied, by a decision of the judicial board for civil Cases of the Karaganda Regional Court of April 04, 2016, the decision was left unchanged, the applicant's appeal was dismissed. Thus, the issues of payment for the work of bailiffs are regulated by law, and when appealing against bailiffs' decisions to establish payment, courts should not loosely interpret but must strictly comply with the requirements of regulatory legal acts (Article 6 of the CPC). It is possible to change the approach to remuneration of private bailiffs only if appropriate changes are made to the legislation. 

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