Comments on article 159. Replacement of a measure to secure a claim of the Civil Procedure Code of the Republic of Kazakhstan

1. At the request of the person participating in the case, the parties to the arbitration proceedings may replace one measure of securing the claim with another.2. The issue of replacing one measure of securing a claim with another shall be resolved by the court no later than five working days from the date of receipt of such an application, notifying the persons participating in the case of the time and place of consideration of the application, but their failure to appear does not preclude consideration of the matter on its merits.3. The judge issues a ruling on the replacement of one measure of securing a claim by another.If the application is refused, the court shall indicate in the ruling the reasons why it is impossible to replace the previously chosen measure of securing the claim.4. The defendant has the right, instead of the measures taken by the court to secure the claim, to deposit an amount equal to the price of the claim to the deposit of the territorial subdivision of the authorized body for organizational and logistical support of the courts.1. One type of claim security may be replaced by another by the court only upon the application of the persons participating in the case, as well as the parties to the arbitration proceedings in the case being conducted by the arbitration court.

The grounds for filing such an application can be very different, but it should always be taken into account that the application of a specific type of enforcement measures should ensure the enforcement of a court decision on the plaintiff's claim for the protection of property, property rights or personal non-property rights.2. An application to replace one type of claim security with another may be filed:- at the stage of preparing the case for trial; - at a court hearing during the consideration of the case;- after the court makes a decision, but before its entry into force.If an application for securing a claim is considered by a judge alone without notifying the defendant, the court must notify the persons involved in the case about the place and time of consideration of the application for replacing one type of claim with another type of claim.The non-appearance of any of them is not an obstacle to the consideration of the application.The court issues a ruling on the replacement of one type of claim security by another. This ruling is subject to immediate execution in accordance with the rules for the execution of the ruling on securing the claim.The legislator does not provide for the content of a written statement on the replacement of one type of claim security by another, as well as the content of such a definition. It seems that a written statement by the plaintiff or the defendant on the replacement of one type of security measure for a claim with another type should contain:- the name of the applicant and the address of his place of residence (location of the executive body of the legal entity);- the name of the court to which it is addressed;- the date of the court ruling and the type of measure to secure the claim; - the reasons why the chosen type of measure to secure the claim cannot enforce the court's decision on the claim filed by the plaintiff; - the type of measure to secure the claim that the applicant proposes to apply to secure the claimed claim;- an indication of evidence that the interim measure previously adopted by the court does not meet the requirements of proportionality, and the interim measure proposed as a substitute meets the objectives specified in Article 155 of the CPC;- the applicant's signature. If the application is submitted by a representative of the plaintiff or the defendant, the application must be accompanied by a power of attorney certifying the representative's authority to file and/or sign the application.3. The definition on the replacement of one type of measures to secure a claim with another type must contain the information provided for in Article 269 of the CPC, including:- the date of the ruling on securing the claim;- the type of measure chosen by the court to secure the claim;- by whom and for what reasons the application was submitted to replace one type of measure to secure the claim with another;- a reasoned opinion of the court on the satisfaction of the application or on the refusal to satisfy the application for the replacement of one type of measures to secure the claim with another;- the procedural decision of the court on the application. At the same time, the operative part of the court's ruling should indicate the cancellation of the type of claim security previously applied by the court and the acceptance of another type of claim security.A court ruling on the replacement of one type of claim security measure with another type may be appealed in accordance with the procedure provided for in Article 429 of the CPC. The filing of a private complaint against a court ruling on the replacement of a measure to secure a claim of one type with another type suspends the execution of the ruling.In this case, the measure of securing the claim for which the application has been submitted continues to apply.

The type of claim security will be replaced when, for example, such type of claim security as the seizure of property will be replaced by such type of claim security as prohibiting other persons from transferring property to the defendant or fulfilling other obligations towards him.4. Article 159 of the CPC provides for the right of the defendant in claims for recovery of money to deposit the amount of money claimed by the plaintiff into the court's escrow account instead of the measures taken by the court to secure the claim. Such a procedural action does not indicate that one type of claim security has been replaced by another.

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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