Comments on article 251. Protection of the rights of other persons in the execution of decisions of the Civil Procedure Code of the Republic of Kazakhstan

1. If a bailiff commits a violation of the law during the seizure of property, which is the basis for the cancellation of the arrest, regardless of whether the property belongs to the debtor or other persons, applications from other persons for the cancellation of the seizure of property are considered by the court in accordance with the procedure provided for in Article 250 of this Code. Such applications may be submitted prior to the sale of the seized property. A dispute over the right related to the ownership of the foreclosed property may be filed by other persons within ten working days from the date of the action (refusal to commit the action) or from the day when the person became aware of it. Such claims are considered by the court according to the rules of claim proceedings.

2. Claims for the release of property from seizure (exclusion from the inventory) may be filed by owners or persons who own property on the basis of economic management, operational management, lease, permanent land use, or on other grounds provided for by law or contract.

3. Claims for the release of property from seizure shall be brought against the debtor and the recoverer.

4. If property is seized by a bailiff as part of the execution of a sentence, a decree on confiscation of property that does not specify the items to be confiscated, the convicted person and the relevant body authorized to organize work on accounting, storage, evaluation and further use of property that has been converted (received) into state ownership are involved as defendants. If the claims are recognized as justified, if the property subject to confiscation is held by the body authorized to organize work on accounting, storage, evaluation and further use of property that has been converted (received) into state ownership, and transferred to them by trade, other organizations for sale, processing or free of charge, then this property is subject to return in kind. In this case, in addition to the body authorized to organize work on accounting, storage, evaluation and further use of property transferred (received) into state ownership, the specified trade and other organizations are involved in the case. If these organizations have not sold the property to be excluded from the inventory, they are required to return the property in kind.

5. A judge, having established, regardless of the application of the persons concerned, the circumstances specified in the first part of this Article, is obliged to release the property from seizure (exclude it from the inventory) when considering the application in accordance with the procedure established by this Article and Article 250 of this Code.

6. If the property seized in connection with the confiscation of property has already been sold or recycled, the plaintiff shall be reimbursed the amount earned from the sale of the property when considering the application in accordance with the procedure established by this Article and Article 250 of this Code.

1. The article being commented on is related to the seizure (inventory) of property by a bailiff. The procedure for foreclosing on the debtor's property is regulated by chapter 7 of the Law "On Enforcement Proceedings and the Status of Bailiffs." Foreclosure on the debtor's property consists of his arrest, inventory, seizure and sale.The bailiff makes an arrest of the property, which includes making an inventory of the property, declaring a ban on disposing of it to the debtor and transferring it to storage. The seizure of property restricts the debtor's rights and may violate the property rights of others. Therefore, these actions must be carried out strictly in accordance with the procedure prescribed by law. The types, volumes and terms of restrictions on the right to use property are determined by the bailiff in each specific case, taking into account the properties of the property, its importance to the owner or owner, economic, domestic or other use, and other factors.The arrest is applied: to ensure the safety of the debtor's property, which is subject to subsequent transfer to the recoverer or for further sale; when executing a judicial act on the confiscation of the debtor's property; when executing a court ruling on the seizure of property belonging to the defendant and held by him or other persons. The debtor's property is subject to arrest and inventory only in the amount necessary to repay: debts under the enforcement document, the enforcement fee, and the costs of execution.If, during the seizure of the debtor's property, other persons assert their rights to the property, it is nevertheless entered in the inventory, and a note is made in the inventory about the other person's claim. At the same time, the bailiff explains to the person concerned his right to apply to the court with a claim for the release of property from seizure, which is noted in the inventory report.The commented part of the article establishes that a claim for a right related to the ownership of the foreclosed property may be filed by other persons within ten working days from the date of the action (refusal to commit it) or from the day when the person became aware of it. Thus, this part sets a pre-trial period of ten working days so that the execution of the judicial act is not delayed. The term established by law is a procedural term.

2. In accordance with the requirements of paragraph 2 of the normative resolution of the Supreme Court No. 2 dated March 24, 1975 "On Judicial practice in cases of release of property from seizure", claims for release of property from seizure may be filed by both owners and persons owning property on the right of economic management, operational management, permanent land use, or on for any other reason provided for by legislative acts or an agreement. The rightful owner has the right to protect his possessions. The seizure of property and the associated possibility of its compulsory alienation endanger the rights of the owner, therefore, he is given the opportunity, independently of the owner, to seek protection of his rights by filing a claim for the release of property from seizure. In parts two and three of the commented article, two forms of protection of the rights of other persons are provided for in the execution of a court order or a decision of a state or other body: by submitting an application for the cancellation of an arrest carried out in violation of the law.; by filing a claim for exclusion of property from the inventory (release of property from arrest).The first form is used if a third party believes that the bailiff violated the current legislation during the arrest. As follows from the content of the first part of the commented article, court proceedings in such a case can be initiated only upon the application (and not the claim) of another person (a third party) whose rights have been violated. In the application, in addition to the requirement to cancel the arrest and other necessary details, the applicant must indicate what exactly was violated by the bailiff during the arrest. The application can be submitted before the sale of the seized property.The debtor's application is considered at a court hearing. The debtor, the recoverer and the bailiff are notified of the time and place of the meeting, however, their non-appearance is not an obstacle to the resolution of the application. The court must determine whether the bailiff committed any violations of the law during the arrest.

3. According to the requirements of paragraph 5 of the normative resolution of the Supreme Court No. 2 dated March 24, 1975 "On judicial practice in cases of release of property from seizure", claims for release of property from seizure are brought against the debtor and the recoverer, and if the property is seized in connection with the confiscation of property, the convicted person and the relevant body are involved as defendants. authorized to organize work on accounting, storage, evaluation and further use of property that has been converted (received) into republican ownership. By virtue of Article 127 of the CPC, a person in prison, like other defendants, must be notified of the time and place of the court session, and the court must send him a copy of the statement of claim. The courts should also, through the administration of correctional labor institutions, explain to these persons their right to give written explanations to the court on the merits of the claim, as well as entrust the case to a representative.In case of seizure in the order of securing a claim or execution of enforcement documents on property that is not the property of the debtor and does not belong to him on the right of economic management or operational management, the owner of the property (the legal owner) has the right to file a claim for the release of the property from seizure.Disputes on the release of property from seizure are considered in accordance with the jurisdiction under the rules of claim proceedings, regardless of whether the arrest was imposed in order to secure a claim or in order to foreclose on the debtor's property in accordance with enforcement documents.Cases on such disputes in court are initiated by a lawsuit (and not by a complaint or statement). Claims for the release of property from seizure (exclusion from the inventory) are filed against the debtor and the recoverer. Based on the results of consideration of the application, a court decision is made. Upon satisfaction of the application, the court cancels the arrest in whole or in part.

4. Part four of the commented article provides for cases when the seizure of property was carried out by a bailiff as part of the execution of a sentence, a decree on the confiscation of property, which does not specify the items to be confiscated. Such a form of claim for the protection of property rights violated during the execution of a court order or a decision of a State or other body may be used only by persons who did not participate in the case in the event of a dispute over the ownership of the seized property.

5. A judge, having established, regardless of the application of the persons concerned, the circumstances specified in part one of this Article, is obliged to release the property from seizure (exclude it from the inventory) when considering the application in accordance with the procedure established by this Article and Article 250 of the CPC.

6. If the property seized in connection with the confiscation of property has already been sold or recycled, the plaintiff, when considering the application in accordance with the procedure established by this Article and Article 250 of the CPC, shall be reimbursed the amount received from the sale of the property. 

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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