Commentary on Article 673. Obstruction of a Judicial Enforcement Officer in the Enforcement of Enforcement Documents of the Code of the Republic of Kazakhstan on Administrative Offences
Obstruction by individuals and legal entities of the actions of a judicial enforcement officer or court bailiff in carrying out actions to levy execution against property (inventory, valuation, seizure, and conducting auctions), or refusal to comply with their requirements in this regard —
shall entail a fine of ten monthly calculation indices for individuals and twenty monthly calculation indices for officials, or administrative arrest for a period of up to five days.
The legal basis for administrative liability under the article under consideration is the provision established in Article 128 of the Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Judicial Enforcement Officers” dated 2 April 2010, which regulates the obligation of state bodies, local self-government bodies, citizens, and organizations throughout the territory of the Republic of Kazakhstan to strictly comply with the lawful requirements of a judicial enforcement officer.
The general object of the administrative offence under consideration is the social relations arising in the sphere of the functioning of state power institutions.
The generic object is the social relations ensuring the established procedure for the activities of a judicial enforcement officer in ensuring the enforcement of an enforcement document.
The objective aspect of the act under consideration consists of an action — obstructing a judicial enforcement officer or court bailiff from carrying out actions to levy execution against property (inventory, valuation, seizure, and conducting auctions), as well as inaction — refusal to comply with such requirements of a judicial enforcement officer or court bailiff.
Levying execution against the debtor’s property is a measure of compulsory enforcement of an enforcement document, which includes the seizure of property and (or) its compulsory sale or transfer to the claimant.
A judicial enforcement officer is obliged to take all measures to enforce an enforcement document in accordance with the requirements of the Law. However, at the same time, the officer must not allow violations of the debtor’s rights protected by law. Thus, Chapter 7 of the Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Judicial Enforcement Officers” contains the main provisions governing the procedure for levying execution against the debtor’s property.
In accordance with Article 55 of the Law, levying execution against the debtor’s property includes the seizure of property and (or) its compulsory sale or transfer to the claimant.
Under enforcement documents, recovery is first directed at the debtor’s monetary funds, including funds held in banks and organizations carrying out certain types of banking operations, unless a different procedure is established in the enforcement document.
In accordance with paragraph 13 of Resolution No. 12 of the Supreme Court dated 19 December 2003, “On Liability for Malicious Non-Execution of Judicial Acts,” obstruction of the enforcement of a judicial act or enforcement document means any intentional actions (inaction) aimed at making their enforcement impossible.
Obstruction may take the form of restricting a judicial enforcement officer’s access to the inventory, valuation, and seizure of property, conducting auctions, and inspecting residential and other premises or storage facilities where the debtor’s property may be located; an employer organization’s failure to withhold monetary funds from a debtor to repay a debt under an enforcement document; opening accounts unknown to the judicial enforcement officer for the purpose of concealing income; and other actions (inaction) that create obstacles to enforcement.
Furthermore, one type of obstruction is the disposal of and use of property that has been seized. Seizure of a debtor’s property consists of prohibiting the disposal of such property, as well as declaring a prohibition on the use of and disposal of the debtor’s monetary funds held in banks and other organizations carrying out certain types of banking operations, in respect of which a resolution on the seizure of the debtor’s property is issued.
Seizure may be imposed on the debtor’s property owned under the right of ownership, the right of economic management, or the right of operational management, subject to the restrictions established by the Civil Code of the Republic of Kazakhstan, regardless of where and in whose actual possession the property is located.
According to paragraph 5 of Article 62 of the Law “On Enforcement Proceedings,” obstruction of a judicial enforcement officer’s actions to levy execution against property, violation of the judicial enforcement officer’s prohibition on disposing of or using property that has been seized, as well as other unlawful actions in relation to seized property, entail liability as provided for by the laws of the Republic of Kazakhstan.
It should be noted that the objective aspect of the administrative offence under consideration includes not only obstruction of the activities of a judicial enforcement officer but also obstruction of the activities of a court bailiff. Thus, in accordance with paragraphs 1 and 5 of Article 2 of the Law of the Republic of Kazakhstan dated 7 July 1997 No. 150-1 “On Court Bailiffs,” the main duties of court bailiffs include maintaining public order while judicial enforcement officers carry out enforcement actions and assisting judicial enforcement officers in the compulsory enforcement of enforcement documents issued by courts and other bodies.
It should be noted that levying execution against the debtor’s property includes two stages: first, monetary funds are recovered, and only then, if they are insufficient, movable and immovable property is subject to seizure, confiscation, and sale.
Within the meaning of the article under consideration, the subjects of the offence are individuals as well as officials.
In accordance with paragraph 3 of Article 76 of the Constitution of the Republic of Kazakhstan, Articles 127 and 472 of the Criminal Procedure Code, paragraph 2 of Article 21 of the Civil Procedure Code, and Article 884 of the Code of the Republic of Kazakhstan on Administrative Offences, judicial acts that have entered into legal force, as well as orders, requirements, instructions, summonses, requests, and other communications of courts and judges in the administration of justice, and decisions imposing administrative penalties, are binding on all state bodies, local self-government bodies, legal entities, officials, and citizens and must be enforced throughout the territory of the Republic of Kazakhstan.
Failure to comply with a court judgment, court decision, or other judicial act that has entered into legal force, or an enforcement document, as well as obstruction of their enforcement, entails liability provided for by law.
The subjective aspect of the administrative offence under consideration is characterized by guilt in the form of direct or indirect intent. The existence of direct intent means that the offender is aware of the unlawful nature of their act, foresees the harmful consequences of their act, and desires those consequences to occur.
Indirect intent entails the offender’s awareness of the unlawful nature of their act, in the absence of a direct desire for harmful consequences to occur, but with their conscious acceptance or an indifferent attitude toward them.
Thus, a person is aware that they must not obstruct the lawful actions of a judicial enforcement officer or court bailiff in levying execution against property (inventory, valuation, seizure, and conducting auctions); nevertheless, the person fails to take certain actions to prevent interference with the activities of the judicial enforcement officer or bailiff, or directly refuses to comply with their requirements.
Pursuant to paragraph 1 of Article 684 of the Code of the Republic of Kazakhstan on Administrative Offences, cases involving this type of offence are subject to consideration by judges of specialized district and equivalent administrative courts.
According to subparagraphs 56 and 57 of paragraph 1 of Article 804 of the Code of the Republic of Kazakhstan on Administrative Offences, reports of this offence are drawn up by:
- state judicial enforcement officers;
- court bailiffs and other court employees authorized by the court chairperson or the presiding judge at a court hearing.
According to subparagraph 3 of paragraph 1 of Article 7 of the Law “On Court Bailiffs,” a court bailiff has the right to draw up an offence report for the purpose of bringing the offender to liability in accordance with the procedure established by law.
It may also be noted that when judicial enforcement officers draw up administrative offence reports, most debtors who do not wish to be held administratively liable comply with the court decision immediately, which has a positive effect on the enforcement of enforcement documents.
At the same time, when considering cases involving failure to comply with judicial acts and enforcement documents that have entered into legal force, as well as obstruction of their enforcement, courts must pay attention to shortcomings and omissions in the work of judicial enforcement officers and criminal prosecution authorities and, where grounds exist, issue private rulings (paragraph 17).
Scientific and Practical Commentary on the Code of the Republic of Kazakhstan on Administrative Offences (Article-by-Article), by the team of authors:
Bachurin Sergey Nikolaevich, Candidate of Legal Sciences, Associate Professor — Chapter 48 (co-authored with Khakimov E. M.);
Gabdualiyev Mereke Trecovich, Candidate of Legal Sciences — Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, Master of Law — Chapter 13 (co-authored with Karpekin A. V.); Chapters 33 and 39 (co-authored with Seitjanov O. T.);
Karpekin Alexander Vladimirovich, Candidate of Legal Sciences, Associate Professor — Chapter 13 (co-authored with Zhusipbekova A. M.);
Korneychuk Sergey Vasilievich — Chapter 2; Chapter 6 (co-authored with Seitjanov O. T. and Khakimov E. M.); Chapter 8; Chapter 25 (co-authored with Khakimov E. M.); Articles 457–470, 488, 488-1, 491–506; Chapters 28, 30, 52;
Koryakin Ilya Petrovich, Doctor of Legal Sciences, Professor — Chapter 49;
Kysykova Gulnara Bauyrzhanovna, Candidate of Legal Sciences — Chapter 20;
Omarova Botagoz Akimgereevna — Chapter 17; Chapter 18 (co-authored with Parmankulova B. A.); Chapters 26 and 31; Chapter 32 (co-authored with Parmankulova B. A.);
Parmankulova Bayan Askhanbaevna — Chapter 18 (co-authored with Omarova B. A.); Chapter 19; Chapter 32 (co-authored with Omarova B. A.); Chapter 43 (co-authored with Tukiev A. S.);
Podoprigora Roman Anatolyevich, Doctor of Legal Sciences, Professor — Chapter 24, Articles 489, 489-1, 490;
Porokhov Evgeny Viktorovich, Doctor of Legal Sciences — Chapters 14, 15, 16, 29, Articles 471–475;
Seitjanov Olzhas Temirzhanovich, Candidate of Legal Sciences, Associate Professor — Chapter 4; Chapter 5 (co-authored with Khakimov E. M.); Chapter 6 (co-authored with Korneychuk S. V. and Khakimov E. M.); Chapters 9 and 10 (co-authored with Shaimerdenov B. E. and Filin V. V.); Chapter 33 (co-authored with Zhusipbekova A. M.); Chapter 36 (co-authored with Shaimerdenov B. E.); Chapter 39 (co-authored with Zhusipbekova A. M.);
Smyshlyaev Alexander Sergeevich, PhD — Chapters 38, 40, 42, 43-1 (co-authored with Tukiev A. S.); Chapter 44;
Tukiev Aslan Sultanovich, Candidate of Legal Sciences, Associate Professor — Chapters 1, 3, 35; Chapters 38, 40, 42 (co-authored with Smyshlyaev A. S.); Chapter 43 (co-authored with Parmankulova B. A.); Chapter 43-1 (co-authored with Smyshlyaev A. S.); Chapter 44-1 (co-authored with Shipp D. A.); Chapter 45; Chapter 46 (co-authored with Shipp D. A.); Chapter 47;
Filin Vladimir Vladimirovich, Candidate of Legal Sciences — Chapter 10 (co-authored with Seitjanov O. T. and Shaimerdenov B. E.);
Khakimov Erzhan Maratovich, Master of Law — Chapter 5 (co-authored with Seitjanov O. T.); Chapter 6 (co-authored with Seitjanov O. T. and Korneychuk S. V.); Chapter 7; Chapter 25 (co-authored with Korneychuk S. V.); Chapters 34 and 41; Chapter 48 (co-authored with Bachurin S. N.); Chapter 53;
Shaimerdenov Bolat Erkenovich, Master of Law — Chapter 10 (co-authored with Seitjanov O. T. and Filin V. V.); Chapter 12; Articles 476–487, 507–509; Chapter 36 (co-authored with Seitjanov O. T.); Chapters 37, 50, 51;
Shipp Denis Alekseevich — Chapters 44-1 and 46 (co-authored with Tukiev A. S.).
Date of amendment of the act: 01.01.2020Date of adoption of the act: 01.01.2020Place of adoption: 100050000000Body that adopted the act: 103001000000Territorial scope: 100000000000Registration number of the regulatory legal act assigned by the rule-making body: 5Status of the act: newSphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000Form of the act: COMMENTARY / CODELegal force: 1900Language of the act: Russian
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