Comments on article 242. Issuance by the court of a duplicate writ of execution or a court order of the Civil Procedure Code of the Republic of Kazakhstan

1. In case of loss of the original writ of execution or court order (hereinafter referred to as enforcement documents), the court that issued the decision or court order may issue duplicates of the enforcement documents at the request of the recoverer or the presentation of the bailiff, at the request of the judicial authority.

2. An application for the issuance of a duplicate enforcement document may be filed with the court before the expiration of the time limit set for the submission of the enforcement document for execution. If the enforcement document was lost during execution and the recoverer became aware of this after the deadline for submitting it for execution expired, an application for the issuance of a duplicate enforcement document may be filed with the court within one month from the day when the recoverer became aware of the loss of the enforcement document.

3. The court shall consider and resolve an application for the issuance of a duplicate enforcement document within ten working days from the date of its receipt by the court. An application for the issuance of a duplicate executive document is considered at a court hearing with notification of the persons participating in the case about the time and place of the meeting, however, their failure to appear is not an obstacle to resolving the issue of issuing a duplicate. 

4. When considering an application for the issuance of a duplicate executive document, the court verifies and examines evidence of the loss of the executive document.5. A court ruling may be appealed and appealed to the court of appeal, whose decision is final.

1. Article 9 of the Law "On Enforcement Proceedings and the Status of Bailiffs" stipulates that in case of loss of the enforcement document, the basis for recovery is its duplicate, issued in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan by the body that issued the enforcement document. A duplicate is issued in case of loss of the enforcement document at the request of the claimant. A duplicate may also be issued on the recommendation of the bailiff, if the enforcement documents are lost due to the fault of the bailiff, as well as at the request of the judicial authority.

2. An application for the issuance of a duplicate is submitted to the court, which issued the executive document. When resolving the issue of issuing a duplicate of the enforcement document, the court issues a ruling that satisfies the application or refuses to satisfy it. The deadline for applying to the court for a duplicate is three years before the deadline for submitting an enforcement document for execution (see article 11 of the Law "On Enforcement Proceedings and the Status of Bailiffs"). If the enforcement document was lost during execution and the deadline for submitting it for execution has passed, the recoverer has the right to apply to the court with such a statement within one month from the day when the recoverer became aware of the loss of the enforcement document.These deadlines are procedural, therefore, if the deadline for applying to the court for the issuance of a duplicate is missed, then at the same time as the application for the issuance of a duplicate executive document, an application for the restoration of the deadline must be submitted. If the court does not restore the deadline, the court refuses to issue a duplicate of the enforcement document.The issuance of a duplicate enforcement document with a missed deadline without a request for reinstatement of the deadline must be refused acceptance of the application by a court ruling. In the court ruling, it is necessary to indicate the reason for the refusal and explain to the claimant his right to reapply to the court with a similar statement, attaching an application for restoration of the missed deadline.

3. The case on the issuance of a duplicate writ of execution is considered by the court that issued the writ of execution (court order) at a court hearing within ten working days from the date of its receipt by the court.Notification by the court of the persons participating in the case is mandatory, but their failure to appear does not prevent the case from being considered if they are notified by the court in accordance with the procedure established by law.Applications for the issuance of a duplicate executive document are paid for by the state fee (see subparagraph 11) of paragraph 1 of Article 535 of the Tax Code).

4. The applicant shall indicate in the application the circumstances of the loss of the enforcement document and shall be obliged to provide the court with evidence of the loss of the enforcement document and evidence confirming that the enforcement document has not been executed (partially executed).When considering an application, the court has the right to summon the bailiff who initiated the enforcement proceedings, as well as the persons participating in the enforcement proceedings, to clarify whether and to what extent the execution has been carried out. If the court finds that the execution has been partially carried out, this must be indicated in the court ruling. But on this basis, it is impossible to change the amount of the penalty in the duplicate, therefore the duplicate must completely repeat the lost executive document. Partial execution must be taken into account by the bailiff during further execution.In the event that the court finds that a decision has been executed on the lost executive document, the court has no right to issue a duplicate.A duplicate executive document has the same legal force as a lost one. In terms of content, it must completely coincide with the executive document. It differs only in that the duplicate is marked "Duplicate".If a lost executive document is found, it becomes invalid from the moment the duplicate is issued, so execution on it is no longer possible.

5. A court ruling may be appealed and protested to the court of appeal in accordance with the rules established by Article 429 of the CPC, the decision of which is final.

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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