Comments on article 160. Cancellation of a measure to secure a claim of the Civil Procedure Code of the Republic of Kazakhstan

1. The security of a claim may be revoked by the same court at the request of a person participating in the case, the parties to the arbitration proceedings, or on their own initiative. The issue of cancellation of the security measure for the claim is resolved by the judge no later than five working days with notification of the persons participating in the case about the time and place of consideration of the application, however, their non-appearance does not prevent consideration of the matter on its merits.

2. In case of refusal of the claim, the measures taken to ensure the claim remain in force until the decision enters into legal force. The court, simultaneously with the entry into force of the decision, issues a ruling on the cancellation of the claim security. If the claim is satisfied, the measures taken to ensure it remain in effect until the execution of the court decision. A writ of execution on the cancellation of interim measures is not issued.

3. A court considering a case on the restructuring of a financial institution or an organization that is part of a banking conglomerate as a parent organization and is not a financial organization is obliged to cancel the provision of a claim against a financial institution or an organization that is part of a banking conglomerate as a parent organization and is not a financial organization, and (or) its property, by the court before the decision on the restructuring is made.

1. In accordance with Article 163 of the CPC, measures to secure a claim may be canceled. Consideration of the issue of cancellation of measures to secure a claim has some features:- measures to secure a claim may be revoked at the request of a person participating in the case, the parties to the arbitration proceedings, or on their own initiative;- measures to secure a claim in a case that ended with a decision on the satisfaction of the claim remain in effect until the decision is fully executed.;- measures to secure a claim in a case that has ended with a decision to dismiss the claim, or by issuing a ruling on the termination of proceedings in the case or a ruling on the abandonment of the claim without consideration, or a ruling on the return of the statement of claim, remain in effect until the entry into force of the said judicial acts. In these cases, the measures to secure the claim may also be canceled on the initiative of the court;- the issue of cancellation of the measures to secure the claim is considered by the court that issued the judicial act;- the issue of cancellation of the measures to secure the claim is considered by the court in a court session no later than five working days with notification of the persons participating in the case, the parties to the arbitration or arbitration proceedings about the place and the time of the court session, however, the non-appearance of these persons is not an obstacle to the consideration of the said issue. Since the issue of cancellation of measures to secure a claim is being considered at a court hearing, a protocol of the court session must be drawn up;- measures to secure a claim can be canceled only after the court ruling on cancellation of the claim enters into force.

2. Cancellation by the court of previously taken measures to secure a claim on the initiative of the parties is possible at any time before the execution of the court decision, including before the defendant fulfills the conditions accepted by the parties and the terms of the settlement agreement approved by the court. Upon termination of the proceedings on the grounds provided for in Article 277 of the CPC, or abandonment of the claim without consideration on the grounds provided for in Article 279 of the CPC, as well as upon entry into force of the decision to dismiss the claim, the court is obliged, on its own initiative, to cancel the measures taken to secure the claim. Persons who are not specified in the first part of Article 160 of the CPC are not entitled to file an application for cancellation of the claim. The legislator does not specify the grounds on which the measures taken by the court to secure the claim can be canceled. As is known, the enforcement of a claim is valid until the execution of a court decision by which the substantive claim claimed by the plaintiff is satisfied, the entry into force of a court decision by which these claims are not satisfied, or until the entry into force of a court ruling on the termination of proceedings or the abandonment of the application without consideration. During this period, the enforcement of the claim may be revoked by the court at the request of the plaintiff, filed on any legal grounds. The claim security may be cancelled at the request of the defendant if he has provided counterclaim, if he has satisfied the plaintiff's claims, and maintaining the measures to secure the claim in this case is impractical. The enforcement of a claim may be revoked by the court on its own initiative if the court finds that the type of enforcement measures applied by it does not correspond in content to the nature of the claim filed by the plaintiff. The enforcement of the claim may be revoked by the court of appeal based on the results of consideration of a private complaint against the court's ruling on the enforcement of the claim, if the court of appeal finds that the measure of enforcement applied by the court of first instance does not correspond in its content to the nature of the claimed claim and violates the legitimate rights and interests of the defendant.

3. Court decisions on the restructuring of financial institutions or an organization that is part of a banking conglomerate as a parent organization and is not a financial organization shall enter into force from the date of their announcement and shall be subject to immediate execution. From the moment of entry into force of the court's decision on the restructuring of a financial institution, the execution of previously adopted decisions of courts and arbitration on the satisfaction of claims for obligations that are supposed to be restructured is suspended.; the claims of creditors of a financial institution, the obligations to which are supposed to be restructured, declared before the entry into force of the court's decision on restructuring and during the restructuring of the financial institution, and foreclosure on the property of the financial institution is not allowed. When considering an application for restructuring, the court is obliged to cancel the provision of a claim against a financial organization or an organization that is part of a banking conglomerate as a parent organization and is not a financial organization, and (or) its property, made by the court before the decision on restructuring.

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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