Comments on article 503. Enforcement of decisions of foreign courts, arbitral awards of foreign arbitrations of the Civil Procedure Code of the Republic of Kazakhstan
1. If the acts specified in the first part of Article 501 of this Code are not executed voluntarily within the time limits set therein, the party to the judicial or arbitration proceedings in whose favor these acts were rendered has the right to file an application for their enforcement with the court at the place of dispute consideration or at the debtor's place of residence or the location of the body of the legal entity, if the place of residence or location is unknown, then at the location of the debtor's property.
2. Applications for the issuance of a writ of execution shall be accompanied by duly certified original acts specified in the first part of Article 501 of this Code, or duly certified copies thereof, as well as, if available, the original arbitration agreement or a duly certified copy thereof. If the said acts or arbitration agreements are set out in a foreign language, the party must provide a duly certified translation into Kazakh or Russian.
3. Applications for the issuance of a writ of execution may be filed no later than three years from the date of expiry of the period for the voluntary execution of acts specified in the first part of Article 501 of this Code.
4. An application for the issuance of a writ of execution, which was submitted after missing the prescribed period or to which the necessary documents were not attached, shall be returned by the court without consideration, and a ruling shall be issued on this, which may be appealed or protested in accordance with the procedure established by this Code.
5. The court has the right to restore the deadline for filing an application for the issuance of a writ of execution if it finds the reasons for missing the specified period valid.6. An application for the issuance of a writ of execution is considered by a judge alone within fifteen working days from the date of receipt of the application to the court.
7. The court shall notify the debtor of the received applications of the recoverer for the compulsory execution of the acts specified in the first part of Article 501 of this Code, as well as of the place and time of their consideration at the court session. The claimant is also notified of the place and time of consideration of his application. The failure of the debtor or the recoverer to appear at the court session is not an obstacle to the consideration of the application, unless the debtor has received a motion to postpone the consideration of the application, indicating valid reasons for the inability to appear at the court session.
8. When considering applications for the issuance of a writ of execution for the compulsory execution of acts specified in the first part of Article 501 of this Code, the court shall not have the right to review them on their merits.
9. Based on the results of the consideration of the application, the court issues a ruling on the issuance of a writ of execution or on the refusal to issue it.The court's ruling on the issuance of a writ of execution is subject to immediate execution.
1. The acts recognized in the Republic of Kazakhstan, specified in the first part of Article 501 of the CPC, may be executed voluntarily. The commented article provides the basis and procedure for their enforcement.The compulsory execution of acts specified in the first part of Article 501 of this Code is carried out, as a rule, by issuing a writ of execution.
2. The commented part of this article contains a list of documents required for enforcement: the original act specified in the first part of Article 501 of this Code, or a duly certified copy thereof, as well as the original arbitration agreement or a duly certified copy thereof.; translation of the document into the official or Russian language. At the same time, the commented norm does not provide for the obligation to provide evidence of the recognition of the arbitral award.Judicial practice has developed in such a way that the courts check the documents submitted with the petition for compliance with the requirements of the laws of Kazakhstan or international agreements, and if the documents comply with the requirements, they issue a ruling on recognition of the decision and in cases requiring the issuance of a writ of execution (according to the requirements "on recovery, coercion ...", etc.), they write out a writ of execution.Therefore, the issues of recognizing the decision of a foreign court, arbitration and the issuance of a writ of execution are considered, as a rule, simultaneously.
3. An analysis of the content of the third part of the commented article indicates that the time limit for the voluntary execution of the acts specified in the first part of Article 501of this Code may be specified in the said acts.For example, according to the seventh part of Article 226 of the CPC, the court may set a certain time limit for the execution of the decision or apply it for immediate execution, as indicated in the decision.In this case, the three-year deadline for submitting an application for the issuance of a writ of execution will begin after the deadline for voluntary execution specified in the decision expires.
4. The court has the right to return the application for the issuance of a writ of execution if the three-year period has expired from the date of expiry of the period for voluntary execution. In the case under consideration, it appears that we are talking about submitting an application without requesting the restoration of a missed deadline.
5. Despite the fact that the commented part does not indicate the need to file a motion for reinstatement, it seems that such a motion should be filed with good reasons. A reverse understanding of what is being commented on would conflict with the previous part.
6. The term of consideration of the application should not exceed 15 working days from the date of its receipt by the court and is final, its extension is not provided.
7. The procedure provided for in the commented part for considering an application for the issuance of a writ of execution indicates that consideration of the issue of compulsory execution of acts specified in the first part of Article 501 of this Code and the issuance of a writ of execution is carried out at a court hearing with the participation of the parties, however, their non-appearance does not prevent the consideration of the application.
8. When considering an application, the court does not enter into a discussion on the merits of the dispute, limiting itself to verifying the legality of submitting the acts specified in the first part of Article 501 of this Code for enforcement in terms of their compliance with the formal requirements provided for in the second part of the commented article.The court determines the availability of the necessary documents, their compliance with the requirements imposed on them in form and time, and also determines whether this decision violates the sovereignty and security of the Republic of Kazakhstan, finds out, whether the losing party received timely notification of the consideration of the case; whether there is an identical decision of the Kazakh or other court. On these issues, the parties have the right to present their arguments, since the above are circumstances that must be clarified in this type of legal proceedings.
9. The final document based on the results of the examination of the application is a ruling on the issuance of a writ of execution or on the refusal to issue it.Considering the above, as well as the fact that in the commented norm the application is referred to as both "on compulsory execution" and "on the issuance of a writ of execution", it seems appropriate in the reasoning part of the definition to discuss the possibility of compulsory execution of the act specified in the first part of Article 501of the present Code, submitted for execution., and in the operative part of the definition, indicate the issuance of a writ of execution or the refusal to issue it.The commented article does not contain requirements for the content of the definition, therefore it is necessary to follow the general requirements for this judicial act provided for in articles 268-269 of the CPC. The court's ruling on the issuance of a writ of execution is subject to immediate execution.
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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