Comments to article 155. Grounds for securing a claim of the Civil Procedure Code of the Republic of Kazakhstan

1. At the request of the persons participating in the case, the parties to the arbitration proceedings, the court may take measures to secure the claim in any situation where failure to take such measures may make it difficult or impossible to enforce the court's decision.The parties to the arbitration proceedings must attach to the statement of claim a document confirming the filing of a claim to arbitration.2. It is not allowed to take measures to secure a claim against a financial organization, as well as an organization that is part of a banking conglomerate as a parent organization and is not a financial organization, when they are restructuring in cases provided for by the laws of the Republic of Kazakhstan.It is not allowed to take measures to secure a claim regarding the suspension of the disputed legal act of the National Bank of the Republic of Kazakhstan for the suspension and (or) revocation of licenses and (or) appendices to them for activities in the financial market., the conservation of financial institutions, as well as its written regulations.It is not allowed to take measures to secure a claim in the form of suspension of the disputed legal act of the state revenue authorities, which is the basis for conducting tax audits. 

Securing a claim - these are temporary coercive measures provided for by legislative acts, which follow from the substance of the stated substantive and legal claims and create legal guarantees for the protection of the plaintiff's property and non-property legal rights and interests in the event that the court satisfies the claims made by him.The grounds and procedure for the application of measures to secure a claim, their types are provided:norms of Chapter 15 of the CPC, by laws:"On Enforcement Proceedings and the status of Bailiffs","On Banks and Banking Activities", "On Copyright and Related Rights","On Rehabilitation and Bankruptcy" and other regulatory legal acts.In order to ensure a uniform understanding and application of legislative acts in judicial practice, the Supreme Court adopted Regulatory Resolution No. 2 "On the adoption of interim measures in civil cases" on January 12, 2009.Measures to secure the claim are directed against unscrupulous participants in civil law relations and create real conditions for the execution of the court decision., which provides judicial protection of the property or personal non-property legal rights and interests of the plaintiff or applicant violated by the defendant.Measures to secure a claim may apply to property owned by the defendant, the right of economic management or the right of operational management, as well as to the restriction of powers to dispose of property or perform specific actions.The legislator allows for the possibility of the court taking measures to ensure the declared material and legal requirements not only in cases of claim proceedings, but also in cases of special claims and special proceedings.For example, in cases provided for in Chapter 29 of the CPC, measures may be applied to ensure the applicant's rights provided for in subparagraph 5) of the first part of Article 156 of the CPC (5) suspension of the contested legal act of a state body, a local government body).Securing a claim is possible for both award and recognition claims.Securing a claim is possible only in relation to the stated substantive and legal requirements in cases of, pending court proceedings.Depending on the content of the stated substantive requirements, several types of enforcement measures may be applied simultaneously.The application of a specific type of security measure depends on the substance of the claim and the need to pre-ensure the rights and property interests of the plaintiff (applicant), for the protection of which he filed an application to the court.The measures to secure the claim have several features:- can be taken only after the court has issued a ruling on the initiation of a civil case;- They may be adopted in any situation of the case, but before the entry into force of the court's decision on the case.;- after the entry into force of a judicial act and its enforcement, the issue of enforcement of a court decision is resolved by the bailiff in the procedures provided for by the Law "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law on Enforcement Proceedings);- apply only at the request of the plaintiff. The adoption of any measures to secure a claim on the initiative of the court is not allowed.;

- it is possible to take measures to secure a claim both in relation to the initially filed claim and in relation to the counterclaim; - they are applied not only by the court of first instance in which the case is pending, but may also be applied by the court of appeal;- apply if there are grounds provided for in Article 155 of the CPC;- applied by the judge alone without holding a court session and without notifying the persons participating in the case;- They are temporary and are valid until the full execution of the court's decision to satisfy the material and legal claims claimed by the plaintiff, or until the court's decision to refuse to satisfy the claims entered into force, or the court's ruling to terminate the proceedings, or the court's ruling to leave the application without consideration.;- implemented immediately, regardless of the filing of a private complaint against the court ruling, in accordance with the procedure provided for the execution of court decisions;- They may be annulled by the court that accepted them, at the request of the persons participating in the case or on the court's own initiative at a court hearing, the place and time of which the persons participating in the case are duly notified.;- measures to secure a claim can only be applied to a claim that is actually pending in court, but not to secure a future claim that the plaintiff intends to file.;- when considering an application for securing a claim, the court session is not held and the minutes of the court session are not drawn up.In accordance with Article 155 of the CPC, the persons participating in the case, as well as the parties to the arbitration proceedings, have the right to file an application for securing a claim. The following persons have the right to file an application for securing a claim:- the plaintiff in the main and the defendant in the counterclaim, as well as their representatives;- applicants in cases considered by way of a special claim or special proceedings;- third parties on the plaintiff's side, making independent claims, and their representatives;- persons provided for in the first part of Article 55 of the CPC who have filed a claim in defense of the legitimate rights and interests of other persons;- applicants in cases of special claim or special proceedings, the categories of which are listed respectively in subsection 3 and Article 302 of the CPC;- a prosecutor who has filed a claim in the interests of the State or in the cases provided for in part three of Article 54 of the CPC.Other of the persons listed in Article 43 of the CPC participating in the case will not have the right to file an application for securing a claim if there is no violation of the legitimate rights and interests of these persons.2 The second part of the commented article lists cases when it is not allowed to take measures to secure a claim.In particular, it is not allowed to take measures to secure a claim against a financial institution, as well as an organization that is part of a banking conglomerate as a parent organization and is not a financial organization, when they carry out restructuring in cases provided for by law.Restructuring is understood as a set of administrative, legal, financial, organizational, technical and other measures and procedures., implemented on the basis of a restructuring plan to improve the financial situation and improve the quality of the financial organization.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 enforcement 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, adopted by the court prior to the decision on the restructuring.In connection with the above, the application of measures to secure the claim is unacceptable.It is not allowed to take measures to secure a claim in relation to the suspension of the disputed legal act of the National Bank for the suspension and (or) revocation of licenses and (or) applications to them for activities in the financial market, the conservation of financial organizations., as well as his written instructions.It is not allowed to take measures to secure a claim in the form of suspension of the disputed legal act of the state revenue authorities, which is the basis for conducting tax audits.By virtue of article 145 of the Criminal Code, an inspection is carried out on the basis of an act on the appointment of an inspection by a state body.In accordance with subparagraph 3) paragraph 1 of Article 155 of the PC, the audited entities or their authorized representatives have the right to appeal the act on the appointment of an audit.According to Article 632 of the Tax Code, the basis for conducting a tax audit is an order.When appealing such an order in court, it is not allowed to take security measures in the form of suspension of its effect.

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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