Comments to Article 238. Postponement and installment of execution of a decision, changing the method and procedure for its execution before the decision is applied to the execution of the Civil Procedure Code of the Republic of Kazakhstan

1. The court that has reviewed the case and rendered a decision has the right, at the request of the persons participating in the case, based on the property status of the parties or other valid reasons, to postpone or delay the execution of the decision, as well as to change the method and procedure for its execution.The court shall consider and resolve the application, petition for postponement, installment plan or change of the method and procedure of execution of the court decision within ten working days from the date of receipt of the application to the court.

2. The applications referred to in the first part of this article shall be considered at a court hearing. The persons participating in the case are notified of the time and place of the meeting. The failure of these persons to appear is not an obstacle to resolving the issue brought before the court.

3. A court ruling on the issue of postponement or installment of execution of a decision, on changing the method and procedure for its execution, may be appealed or protested.

1. Paragraph 4 of the normative resolution of the Supreme Court No. 6 of June 29, 2009 "On certain issues of the execution of judicial acts in civil cases" clarifies that for the reasons provided for in the commented article, regardless of the period of their occurrence (during or after the decision), the execution of a judicial act may be postponed, delayed or changed. the method and procedure of its execution, if the judicial act is not executed.The postponement of the execution of a judicial act is understood as a procedural court decision to postpone to a later date the date of the appeal of the judicial act for enforcement. The issue of postponing the execution of the decision may be raised in disputes of a property and non-property nature. In non-property disputes, such applications are most often submitted by the defendants when executing a decision, for example, on eviction.An installment plan for the execution of a court decision is the execution of a decision in parts with a certain time interval, for example, an installment plan for the payment of a sum of money.Changing the method and order of execution of a decision are concepts that are similar in content, so it makes no sense to separate them. There are situations when it is difficult or impossible to execute a court decision in the manner and in accordance with the procedure established in it. Therefore, at the initiative of the persons involved in the case, it is possible to change the method and procedure of execution of the decision, replacing one type of execution with another.The court that issued the decision in relation to this article should be understood as the judge presiding over the court session during the consideration of the case. In exceptional cases, an application, petition for postponement, installment plan, or change in the method and procedure for executing a court decision may be considered by another judge of the same court. Exceptional cases may include, for example, vacation, prolonged disability or a judge's business trip, or termination of a judge's powers.The resolution of the issue of postponement or installment of execution of the decision, as well as a change in the method and procedure for its execution, is possible based on the property status of the parties, the debtor's illness or other circumstances worthy of attention. Upon satisfaction of the application, the court must specify in the ruling the period of validity of the deferral (installment plan). In the case of installments, the amount (in tenge or as a percentage) of periodic payments to be collected against repayment of the awarded amount is also indicated. At the same time, the limits of the deferral (installment plan) can be determined not only by the date, but also by the occurrence of an event (for example, a change in the defendant's financial situation, recovery, etc.). The court, at the request of the person concerned, has the right to consider the termination of such a definition.The initiator of the postponement and installment of the execution of the decision, changes in the method and procedure of its execution before the decision is applied for execution may be only persons involved in the case. The bailiff is not a person involved in the case. Moreover, he has not yet initiated enforcement proceedings, so he has no right to apply to the court with such a statement.

2. The applications specified in the first part of the commented article are considered at a court session with notification of all persons participating in the case about the time and place of the court session. The non-appearance of persons notified in accordance with the procedure established by law is not an obstacle to the resolution of the issue brought before the court.

3. A court ruling on postponement or installment of execution of a decision, or a change in the method and procedure of execution, may be appealed by filing a private complaint (see 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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