Comments on article 142. Cancellation of the court order of the Civil Procedure Code of the Republic of Kazakhstan

The judge cancels the court order if the debtor objects to the stated claim within the prescribed period, or if another person, whose rights and obligations are affected by the court order, submits a statement about the inconsistency of the court order with the requirements of the law.

2. The judge issues a ruling on the cancellation of the court order no later than three working days from the date of receipt of the objection or application. The definition clarifies that the claim claimed by the claimant may be brought in the order of the claim proceedings. Copies of the ruling on the cancellation of the court order are sent to the recoverer and the debtor no later than the next day after its issuance.

The court's ruling on the cancellation of the court order is not subject to appeal or appeal. The court's ruling on the refusal to cancel the court order may be appealed or protested.

1. Part one of this norm provides for the duty of a judge to cancel a court order if the debtor, within the prescribed period (part two of Article 141), objects to the stated claim or receives a statement from another person, whose rights and obligations are affected by the court order, about the inconsistency of the court order with the requirements of the law.It should be noted that in the objections, the debtor is not obliged to provide the grounds for revoking the court order or the reasons why he does not agree with this order. The very fact of receiving objections that meet the requirements of parts three and four of Article 141 of the CPC obliges the judge to cancel the court order. At the same time, if the debtor provides evidence of the unreasonableness of the recoverer's claim with reference to the relevant provisions of the law, it is quite possible that the recoverer will not exercise his right to file a claim.The court order is also cancelled if an application is received from another person, whose rights and obligations are affected by the court order, about the inconsistency of the court order with the requirements of the law. Such a person is, for example, a recoverer in enforcement proceedings to recover the amount of debt from a legal entity. In order to evade the execution of a court decision, the specified legal entity may conclude fictitious employment contracts with one or more persons. Based on the statements of these alleged employees about the collection of wage arrears, a court order is issued, which is an executive document for collecting a certain amount from the debtor. According to article 111 of the Law "On Enforcement Proceedings and the Status of Bailiffs", first of all, the requirements arising from labor relations are fulfilled. In this regard, without the cancellation of the court order, the execution of the court's decision to recover the amount of the debt is impossible. If the first recoverer provides evidence of fictitious wage arrears, the judge will cancel the court order to collect them.

2. Part Two defines the time limits for issuing a ruling on the cancellation of a court order (three working days from the date of receipt of objections or applications) and sending copies of it to the parties to the writ proceedings (no later than the next day after its issuance). At the same time, it should be clarified in the definition that the claim claimed by the claimant may be brought in the order of the claim proceedings.It is necessary to pay attention to the fact that the judge's ruling on the cancellation of the court order is not subject to appeal and protest, whereas the ruling on the refusal to cancel the court order can be appealed, protested. This is explained by the fact that in case of cancellation of the court order, the recoverer is not deprived of the opportunity to protect his violated rights or legally protected interests in the course of the claim proceedings.

An unjustified refusal to cancel a court order will result in the debtor being unable to restore his rights or legally protected interests violated by the court order.Based on the provisions of Articles 429, 401 of the CPC, a private complaint may be filed by the recoverer or another person whose rights and obligations are affected by the court order. A protest may be brought by the prosecutor within the limits of his competence.If the cancelled court order has been issued to the recoverer or sent for execution, it is revoked by the court.

LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

Astana, 2016

UDC 347 (574)  

By 63

ISBN 978-601-236-042-4

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