Commentary to article 672. Loss of the executive document The Code of the Republic of Kazakhstan on Administrative Offences
Loss by the person to whom the executive document has been transferred for execution entails a fine in the amount of twenty monthly calculation indices.
The general object of the administrative tort under consideration is the normal activity of the institution of state power.
The generic object is social relations that ensure the established order of treatment and the safety of the executive document.
The objective side of the administrative offense in question is the loss of the enforcement document.
In turn, executive documents are called documents that express the content of the grounds for execution, the presentation of which is necessary to initiate enforcement proceedings. The enforcement documents, in accordance with Article 9 of the Law of the Republic of Kazakhstan dated April 2, 2010 "On enforcement proceedings and the status of bailiffs", are:
1) writ of execution issued on the basis of judicial acts;
2) court orders issued in accordance with the civil procedure legislation of the Republic of Kazakhstan;
3) writ of execution issued on the basis of judicial acts on the compulsory execution in the territory of the Republic of Kazakhstan of decisions of international, foreign courts and arbitration;
4) writ of execution issued on the basis of a court ruling on the enforcement of arbitral awards;
4-1) court rulings on securing a claim or cancellation of securing a claim;
5) court rulings issued in the case of an administrative offense in cases provided for by the Code of the Republic of Kazakhstan on Administrative Offenses;
6) resolutions of the body (official) authorized to consider cases of administrative offenses in cases stipulated by the Code of the Republic of Kazakhstan on Administrative Offenses;
7) excluded in accordance with the Law of the Republic of Kazakhstan dated 07/11/17 No. 91-VI (see old ed.)
8) decisions of the bailiff on the recovery of the enforcement sanction;
9) the decision of the bailiff on reimbursement of expenses incurred during the performance of enforcement actions;
10) resolution of a private bailiff approving the amounts of payment for his activities;
11) instructions on the need to pay a fine issued by the body (official) authorized to impose administrative penalties;
11-1) executive inscription;
12) a court decision on the seizure of property issued in a criminal case;
13) a tax order on debt collection of an individual.
At the same time, loss, in the explanatory dictionary, is understood as loss, damage, damage. In the theory of administrative law, the loss of the original executive document should be understood not only as its loss or destruction, but also as the loss of the necessary document details. For example, for the decision of the bailiff, such details are specified in Article 10 of the Law "On Enforcement Proceedings".
It should be noted that an enforcement document can be issued in the form of an electronic enforcement document, which is certified by an electronic digital signature of the judge. Thus, the electronic form of the executive document significantly reduces the risks of its loss.
In accordance with Part 2 of Article 9 of the Law "On Enforcement Proceedings", in case of loss of an enforcement document, the basis for recovery is its duplicate, issued in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan by the body that issued the enforcement document.
The current Code of Civil Procedure provides for a separate article 242, which regulates the procedure for issuing a duplicate writ of execution. 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.
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.
In the theory of law, according to some authors, the applicant must provide the court with evidence of the loss of the enforcement document and that the court decision on the basis of which it was issued has not been executed. However, the law does not provide for such a requirement, which is quite reasonable, because not in all cases, due to various circumstances, the claimant is able to provide evidence of the loss of the original, or to certify its loss.
To.Annenkov, commenting on this provision, also spoke about the lack of need to provide evidence of the loss of the writ of execution: "Firstly, because the presentation of evidence by the recoverer to confirm the circumstances of the loss of the writ of execution, in the vast majority of cases, may seem almost impossible, and secondly, because the debtor, on the contrary, in the case of false the testimony of the claimant about the loss of the writ of execution can always prove to the court, as the drafters of the charter say, "that he has already satisfied the plaintiff.", by submitting a writ of execution with the bailiff's mark on execution, or by other means."
The subject of the tort in question is the person to whom the enforcement document has been transferred for execution. Thus, in accordance with Articles 132, 150 of the Law "On Enforcement Proceedings", non-fulfillment or improper fulfillment by a public or private bailiff of the duties and official powers assigned to him entails liability established by law. The loss of a writ of execution in this case is recognized as improper performance of assigned duties.
Here is an example: "The Specialized Administrative Court of the city of Taraz has considered an administrative case against private bailiff A. under article 672 of the Code of Administrative Offences of the Republic of Kazakhstan (loss of an enforcement document).It follows from the case file that, according to the reconciliation report dated 05.03.2018, compiled by the Office of the Committee on Legal Statistics and Special Accounts of the General Prosecutor's Office of the Republic of Kazakhstan for the Zhambyl region, the fact of the loss of enforcement proceedings by private bailiff A. in the amount of 364 units.By a decision of the specialized administrative court of the city of Taraz, private bailiff A. was found guilty under Article 672 of the Administrative Code and subjected to administrative punishment in the form of a fine equal to 33,670 (thirty three thousand six hundred and seventy) tenge.".
It should also be noted that when considering the issue of liability for non-enforcement of a court decision, it should be noted that one executive document is issued for each court decision. If the execution must be carried out in different places, or the decision is made in favor of several plaintiffs or against several defendants, the court, at the request of the claimants, issues several enforcement documents with an exact indication of the place of execution or the part of the decision that is subject to execution according to this enforcement document.
The subjective side is characterized by carelessness (equally in the form of recklessness or negligence). If a person is frivolous, he foresees the possibility of losing the executive document as a result of violating the rules for handling it, but without sufficient grounds, he arrogantly expects to prevent all kinds of consequences. In case of negligence, the person does not foresee the possibility of loss of the enforcement document and the onset of consequences, although with the necessary care and foresight, he should have and could have foreseen this.
On the basis of part 1 of Article 694 of the Administrative Code, cases of administrative offenses provided for in Article 672CoAP are subject to review by the judicial authorities.
According to part 2 of the same article, the head of the authorized body in the field of state registration of normative legal acts, in the field of enforcement of executive documents and his deputies, the head of the regional, city of republican significance and the capital of the judicial authorities and his deputies have the right to impose administrative penalties.
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:
Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);
Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);
Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;
Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;
Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;
Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);
Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);
Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;
Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;
Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); 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 A.S. Tukiev); chapter 44;
Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;
Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);
Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;
Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.
Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).
Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus
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