Comments on article 156. Measures to secure a claim of the Civil Procedure Code of the Republic of Kazakhstan

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1. Measures to secure a claim may include:1) seizure of property belonging to the defendant and held by him or other persons (with the exception of seizure of money held in the correspondent account of the bank and property subject to repo transactions concluded in the trading systems of the organizers of the open bidding, as well as money held in bank accounts, which receive salary amounts).Seizure of mandatory pension contributions, mandatory occupational pension contributions (penalties on them), pension assets and pension savings, assets of the Social Health Insurance Fund, as well as state-guaranteed social benefits are not allowed.The seizure of money held on the territory of the Republic of Kazakhstan in a correspondent account of a foreign state is allowed for claims for damages caused by a violation by a foreign state of the jurisdictional immunity of the Republic of Kazakhstan and its property.In the ruling on securing a claim in the form of seizure of money belonging to the defendant and held in the bank, The amount of money to be seized must be indicated. The amount of money to be seized is determined by the court based on the price of the claim; 2) prohibiting the defendant from performing certain actions; 3) prohibiting other persons from transferring property to the defendant for obligations that have expired, or from fulfilling other obligations provided for by law or contract with respect to the defendant; 4) suspending the sale of property in the following cases: filing a claim for the release of property from seizure and (or) challenging the results of the assessment of the debtor's property; 5) suspension of the disputed legal act of the state body, local self-government body (with the exception of the legal act of the National Bank of the Republic of Kazakhstan on suspension of actions and (or) revocation of licenses and (or) appendices thereto for activities in the financial market, conservation of financial organizations, as well as its written instructions); 6) suspension of recovery under an enforcement document challenged by the debtor in court;7) suspension of bidding for the extrajudicial sale of the collateral; 8) suspension of the disputed acts and actions of the bailiff, related to foreclosure on property committed in enforcement proceedings.2. If necessary, the court may take other measures to secure the claim, which meet the objectives specified in the first part of Article 155 of this Code. The court may take several measures to secure the claim. In case of violation of the prohibitions specified in this article, the perpetrators shall bear the responsibility established by law. In addition, the plaintiff has the right to demand in court from these persons compensation for damages caused by failure to comply with the ruling on securing the claim.3. Measures to secure a claim must be proportionate to the claim made by the plaintiff and not violate the public interests and interests of third parties.1. 1) Seizure of property belonging to the defendant and held by him or other persons - the most common measure to secure a claim.The Normative Resolution of the Supreme Court No. 2 dated January 12, 2009 "On the adoption of interim measures in civil cases" stipulates that the adoption of such an interim measure as the seizure of property belonging to the defendant is allowed in cases where the plaintiff has made claims arising from contractual, tort or other property-related legal relations that must be satisfied at the expense of the property. the debtor.The property belonging to the defendant means the types of property listed in Article 115 of the Civil Code., which the defendant owns and uses by right of ownership or right of economic management.With respect to a State body, a State institution or a State-owned enterprise that owns and uses state property on the basis of operational management, such an interim measure as the seizure of property, with the exception of money at the disposal of the named defendants, is not applied. In accordance with Articles 44, 922, 923 of the Civil Code, the named defendants are responsible for the damage caused with the money at their disposal. If the money at the disposal of these defendants is insufficient, the State treasury bears subsidiary responsibility for their obligations.In cases of recovery of compensation for moral damage in monetary terms, such a measure to secure a claim as the seizure of property by the court cannot be taken, since the amount of such damage, in accordance with Article 952 of the Civil Code, is determined by the court when making a decision.If there is an application by the plaintiff for securing such a claim, the court simultaneously with or after making a decision that determines the amount of compensation for moral damage., issues a ruling on the enforcement of a court decision.According to article 62 of the Law "On Enforcement Proceedings and the Status of Bailiffs", the seizure of the debtor's property consists in prohibiting the disposal of this property, as well as declaring a ban on the use and disposal of the debtor's funds held in banks and other organizations engaged in certain types of banking operations.

The execution of this type of claim security is carried out in accordance with the procedure provided for the execution of court decisions.The execution of a court ruling on securing a claim by seizing property is carried out by a bailiff. It establishes the ownership of specific property to the debtor and establishes the types of property to be seized, sets the value of such property, and also ensures the safety of this property.The execution of the ruling on the seizure of the defendant's property in order to secure the claim is carried out by the bailiff on the day of its receipt and regardless of whether the court ruling on securing the claim has been appealed.An inventory of the specific seized property with an indication of its value, determined by the bailiff or appraiser, as well as an act on the absence of the debtor's property., the bailiff is obliged to send the person to be arrested to the court, and the enforcement proceedings for the enforcement of the measure to secure the claim are considered completed.The legislator allows the seizure of money from individuals and legal entities held in current and savings accounts of banks. At the same time, in the definition of securing a claim in the form of seizure of money belonging to the defendant and held in the bank, the amount of money to be seized must be indicated. The amount of money to be seized is determined by the court based on the case file.The seizure of money held in the correspondent account of the bank is not allowed.In accordance with article 6 of the Law "On Payments and Money Transfers", bank accounts are divided into current and savings accounts of individuals and legal entities, separate divisions of legal entities, as well as correspondent accounts of banks. Correspondent account is a bank account opened with a bank in another bank under a correspondent account agreement, which is used for banking operations of the bank and its clients.The seizure of money held on the territory of the Republic of Kazakhstan in the bank account of the Government or central banks of a foreign state is allowed for claims for damages caused by a violation by a foreign state of the jurisdictional immunity of the Republic of Kazakhstan and its property.The commented subparagraph establishes a number of restrictions when the application of a measure to secure a claim - the imposition of arrest is excluded.It is not allowed to seize:- money held in bank accounts that receive salary amounts;- mandatory pension contributions, mandatory occupational pension contributions (penalties on them), pension assets and pension savings;- property that is the subject of repo transactions concluded in the trading systems of the organizers of trades using the open bidding method. The nature and subject of repo operations are defined in the Rules for Repo Operations.A repo transaction is a set of two simultaneous transactions involving securities of the same name (the subject of the repo operation), which differ in terms of execution dates and are opposite in direction to each other, the parties to which are two of the same persons (participants in the repo operation):- repo opening transaction (opening transaction): a purchase and sale transaction of securities of any name involving the transfer of money in the amount of this transaction from one of the participants in the repo operation to the second of them and the transfer of a certain number of securities of this name by the second of the participants in the repo operation to the first of them (this subparagraph was amended and supplemented by the decision of the Exchange Council dated January 8, 2009);

repo closing transaction (closing transaction): a securities purchase and sale transaction of the same name as in the case of a repo opening transaction, involving the transfer of money in the amount of this transaction from the second of the participants in the repo operation to the first of them and the return of the same amount of securities of this name as in the case of a repo opening transaction to the first of the participants in the repo operation to the second of them (Rules of repo operations).2) This interim measure may be taken by the court in the following cases:, when a non-property claim filed by the plaintiff implies the need to ensure the safety of the subject of the dispute or the condition that existed before the case was considered.Such actions, the commission of which may be prohibited to the defendant, should include a ban on redevelopment of residential premises, on changing the boundaries of a land plot, on replicating an object of copyright and related rights, on holding a shareholders' meeting, and others. At the same time, the listed actions that are subject to prohibition should not be measures of early execution of a court decision.This type of claim security cannot be applied when it comes to prohibiting the owner from performing actions that constitute the rights of the owner (to own, use, dispose of property). In this case, the seizure of property should be used as a measure to secure the claim.If a claim of a property nature is filed, including the legal fate of a particular property (invalidity of the transaction, recognition of the transaction as having taken place, recovery of property from someone else's illegal possession), then the type of enforcement of the claim will be the seizure of property. The seizure of property means that the seized property, including the specific property as the subject of the dispute, has encumbrances that do not allow the defendant to dispose of it.3) This type of claim security is expressed in the fact that the court cannot seize property that has not yet been transferred to the defendant by other persons and the defendant has not acquired ownership of this property. Due to the nature of the claims, the court cannot apply such a type of claim security as prohibiting the defendant from performing certain actions.The specificity of this type of claim security is that third parties have obligations to the defendant, the deadline for which has come. If third parties fulfill their obligations to the defendant, this may make it difficult or impossible to execute the court decision.The said interim measure may be taken by the court only if there is reliable information about the obligations of third parties to the defendant in the case and a reasonable assumption that the defendant, having received execution from third parties, may make it difficult or impossible to execute the judicial act.The court's ruling on the adoption of the said interim measure must specify, which specific person is prohibited from transferring property or fulfilling other obligations to the defendant in the case. At the same time, the material and legal requirements stated by the plaintiff and the scope of the person's obligations to the defendant in the case must be taken into account so that the obligations of this person to the defendant in excess of the scope of the claims stated by the plaintiff can be fulfilled in accordance with article 272 of the Civil Code.4) Suspension of the sale of seized property, if a claim is filed for the release of property from arrest - this measure to secure a claim is taken when filing a claim for the release of property from arrest (exclusion from the inventory) at the request of the plaintiff in respect of a specific property, the release of which from arrest (exclusion from the inventory) a claim has been filed if the bailiff has not independently suspended the enforcement actions for the sale of this property.

If the debtor disputes the legality of the bailiff's actions to seize the property belonging to him during the execution of the enforcement document, without filing a claim for the release of the property from arrest, in this case the court has the right to take such action as provided for in subparagraph 2) In the first part of Article 156 of the CPC, an interim measure is intended to prohibit a bailiff from taking actions to sell seized property.5) Suspension of the disputed legal act of a state body, local self-government body (with the exception of the legal act of the National Bank on suspension and (or) revocation of licenses and (or) appendices thereto for activities in the financial market, conservation of financial organizations, as well as its written instructions).By virtue of paragraph 4 of Article 8 of the Law "On Administrative Procedures", the submission by interested persons of an application for cancellation, the amendment or suspension of a legal act to a higher state body or to a court suspends the validity of the legal act (with the exception of the legal act of the National Bank on suspension and (or) revocation of licenses to operate in the financial market, conservation of financial organizations, as well as its written instructions) until the relevant decision is made.Filing an application to the court in accordance with the procedure provided for in Chapter 30 of the CPC does not suspend the validity of a regulatory legal act., except in cases when the prosecutor applies to the court to declare the contested normative legal act illegal before consideration by the court (part four of Article 298 of the CPC).The Normative Resolution of the Supreme Court No. 2 dated March 20, 2003 "On the application by courts of certain norms of civil procedure legislation" stipulates that this measure to secure a claim is executed by the State body, organization or official who issued the contested act. If the appealed act is published by the mass media, then the court ruling on the suspension of such act is subject to publication at the expense of the plaintiff in the next issue of the mass media (subparagraph c) of paragraph 10).6) This measure to secure the claim is taken by the court in the event that the person challenges in court the enforcement documents provided for in Article 9 of the Law "On Enforcement Proceedings and the status of Bailiffs".7) In cases stipulated by the pledge agreement, as well as the Civil Code and other legislative acts., The pledgee has the right to independently sell the pledged property in a compulsory out-of-court manner by bidding (auction). The mortgagee bank has the same right to sell the collateral securing the money loan. This measure of securing a claim may be applied by a court in the event of a dispute regarding collateral that is the subject of extrajudicial sale.8) According to article 10 of the Law on Enforcement Proceedings, decisions on enforcement proceedings taken by the bailiff from the date of the announcement of the enforcement document for execution are formalized by resolutions. The decision of the bailiff is subject to mandatory execution and may be appealed to the court in accordance with the civil procedure legislation.A complaint may be filed by the recoverer or debtor on the basis of Article 250 of the CPC against the actions (inaction) of the bailiff to execute enforcement documents, including challenging tenders, during enforcement proceedings or against the refusal to commit such actions.In case of challenging the acts and actions of the bailiff related to foreclosure on property committed in enforcement proceedings, it is possible to suspend them as a measure to ensure their safety.

2. The CPC does not contain an exhaustive list of interim measures, the court has the right to take other measures to secure the claim, not provided for in Article 156 CPC, if failure to take such measures may make it difficult or impossible to enforce the court decision.The court has the right to take several interim measures at the same time, if this will most effectively ensure the execution of the court's decision and the protection of the violated rights and legitimate interests of the plaintiff.In case of violation of the prohibitions specified in this article, the perpetrators are liable under Article 669 of the Administrative Code.Besides, The plaintiff has the right to demand in court from these persons compensation for losses caused by non-fulfillment of the ruling on securing the claim.3. When taking interim measures, the court must proceed from the specific circumstances of the case and the proportionality of measures to ensure the claim to the stated requirements, respect for the rights and legitimate interests of others.At the same time, no measures should be taken that lead to the shutdown of the enterprise, disruption of the production cycle or other irreversible consequences that violate the rights and legitimate interests of individuals and legal entities.

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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