Comments on article 239. Indexation of awarded monetary amounts of the Civil Procedure Code of the Republic of Kazakhstan

1. Upon the application of the recoverer, the court may make an appropriate indexation of the monetary amounts recovered by the court decision based on the official refinancing rate of the National Bank of the Republic of Kazakhstan on the day of execution of the court decision.

2. The court shall consider and resolve the application for indexation of the awarded amounts within ten working days from the date of receipt of the application to the court.The application for indexation of the awarded amounts is considered at the court session. The persons participating in the case are notified of the time and place of the meeting, but their non-appearance is not an obstacle to resolving the issue raised before the court.

3. The court's ruling on the indexation of the awarded sums of money may be appealed or appealed to the court of appeal, whose decision is final.

1. Indexation is one of the ways to compensate the creditor for losses incurred as a result of the depreciation of money (inflation). This provision is intended to protect the plaintiff's interests from inflation as a result of late execution of the court's decision by the defendant.Paragraph 31 of the normative resolution of the Supreme Court No. 5 of July 11, 2003 "On Judicial Decision" clarifies that the indexation of monetary amounts recovered by court decision is carried out from the moment the court decision enters into force until its execution. This is due to the fact that a long period may elapse between the entry into force of the decision and its execution, during which the amounts already collected by the court decision have been inflated. The court has the right to index the amounts recovered by the court if, from the moment the court decision entered into force until its execution, the amounts recovered have become devalued. This is confirmed by the official refinancing rate of the National Bank, which the plaintiff must submit in support of the stated claims.It seems wrong when the courts, citing the absence of the debtor's guilt in delaying the execution of the decision, refuse to index it.

2. The recoverer has the right to apply for the indexation of monetary amounts. The CPC provided for the resolution of this issue at a court hearing. The court issues a court ruling on the indexation of monetary amounts. After the court ruling enters into force, the court issues a writ of execution.In practice, the question often arises as to which court can consider an application for indexation of the collected sums of money. It is most appropriate when such an application is considered by the court that issued the decision. If the execution of the court decision takes place outside the jurisdiction of the court that issued the decision, then such an application can also be considered by the court at the place of execution of the court decision, therefore, in this case, a copy of the ruling must be sent to the court that reviewed the case to attach it to the materials of the civil case.The legislator provided for the court's right to satisfy the application, rather than its obligation. Based on this, the court has the right to refuse to satisfy the application, citing the reasons for making such a decision. Upon satisfaction of the application in the reasoning part of the ruling, the court calculates the amounts collected. When calculating the period for which the amounts awarded can be indexed, the period during which the enforcement of the enforcement document was suspended or postponed on the grounds provided for by law, as well as the period of time when the enforcement document was in the possession of the recoverer and was not presented for execution, must be excluded. For example, by a court decision, a sum of money was recovered from O. LLP in favor of a citizen in the amount of 1,500,000 tenge. The court's decision entered into force on November 16, 2014, and was executed on March 25, 2015. The calculation of the amount should be as follows: 1500,000 x 129 (number of days of non-fulfillment of the decision) x 7 (refinancing rate) divided by 360 x 100, we get 37625 tenge (the amount of indexing).The Procedural law sets the time limit for consideration of an application - ten working days from the date of receipt of the application to the court.

3. The court's ruling on the issue of indexation of monetary amounts awarded under the court's act may be appealed to the court of appeal, whose decision is final. The prosecutor may bring a protest against the court's ruling (see the commentary to Article 429 of the CPC). 

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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