Decisions of the bailiff on the restriction of a citizen's departure from the Republic of Kazakhstan
The introduction of the new Code of Civil Procedure of the Republic of Kazakhstan meets the objectives of the ongoing judicial and legal reform and will allow for positive legal and socio-economic consequences, increase the effectiveness of the consideration of civil cases by the courts, which can positively affect the quality of the administration of justice and further strengthen the independence of the judiciary, strengthen guarantees of the rights of participants in civil proceedings, ensure openness and transparency. legal proceedings.
The modernization of civil procedure legislation makes it possible to ensure effective judicial protection of the constitutional rights and freedoms of individuals and legal entities by increasing its efficiency.
The procedure for authorizing the bailiff's decision in 2015 was regulated by Article 240-7 of the CPC RK and the provisions of Chapter 18 of the CPC RK as amended on July 13, 1999.
Due to the introduction of the new CPC, the procedure for reviewing materials in this category is regulated by Article 252 and Chapter 19 of the CPC, as amended on October 31, 2015.
The main regulatory legal acts regulating issues in the consideration of cases in this category are the Constitution of the Republic of Kazakhstan, the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), and the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" dated April 2, 2010 No. 261–IV (hereinafter referred to as the Law on Enforcement Proceedings).
According to the requirements of paragraph 3 of Article 76 of the Constitution of the Republic of Kazakhstan and in accordance with Article 21 of the CPC, judicial acts that have entered into force are binding on all State bodies and their officials, individuals or legal entities to whom these judicial acts relate.
The execution of judicial acts is the final stage of civil proceedings and determines the effectiveness of justice in the State. The purpose of enforcement proceedings is to ensure the real restoration of violated or disputed rights.
Sanctioning of bailiffs' orders.
In accordance with paragraph 3 of Article 76 of the Constitution of the Republic of Kazakhstan and Article 21 of the CPC, judicial acts that have entered into force are binding on all State bodies and their officials, individuals or legal entities to whom these judicial acts relate.
The execution of judicial acts is the final stage of civil proceedings and determines the effectiveness of justice in the State.
The purpose of enforcement proceedings is to ensure the effective restoration of violated or disputed rights or legally protected interests.
The authorization of the bailiff's order, reviewed in 2015, was regulated by Article 240-7 and the provision of Chapter 18 of the CPC (in the old version). In connection with the adoption of the new procedural Code, the authorization of the bailiff's order is regulated by Article 252 and Chapter 19 of the CPC.
In accordance with paragraph 1 of Article 33 of the Law "On Enforcement Proceedings and the Status of Bailiffs", if an individual, the head (acting) of a legal entity that is a debtor fails to fulfill claims in the amount of more than twenty monthly calculation indices contained in the enforcement document, as well as if enforcement documents on recovery of periodic payments are not executed for more than three months, the court The executor has the right, and at the request of the recoverer, is obliged to issue a temporary restriction on the departure of these persons from the Republic of Kazakhstan.
The decision of the bailiff on the temporary restriction on the departure of an individual, the head (acting) of a legal entity that is a debtor, from the Republic of Kazakhstan is subject to court approval in accordance with the procedure established by the civil procedure legislation of the Republic of Kazakhstan.
Thus, it follows from the meaning of this provision of the law that the subject of the application of measures in the form of travel restrictions may be an individual or the head (acting) of a legal entity that is a debtor.
In terms of its content, an interim measure must comply with the material and legal requirements, ensure the suppression of possible actions of the debtor that may be committed by him in order to make it difficult or impossible to execute a judicial act, and must not lead to a violation of the legitimate rights and interests of third parties.
During the study and analysis of the materials, it was established that the authorization of bailiffs' orders by the courts is generally considered correctly, violations of the terms of consideration of decisions have not been established.
According to the rules of Article 252 of the CPC of the Republic of Kazakhstan, the procedure for authorizing decisions of bailiffs is regulated.
According to the requirements of part 2 of Article 252 of the CPC, a decision subject to court approval is submitted by the bailiff to the court, and the materials of the enforcement proceedings confirming the validity of the authorized actions are attached to the decision. Part 3 of Article 252 of the CPC RK stipulates that the decision of the bailiff must be considered by the court on the day the materials are received by the court.
Part 4 of this article stipulates that, having considered the bailiff's decision and the materials of the enforcement proceedings attached to it, the court authorizes the commission of enforcement actions or refuses to give the sanction.
The sanction is given by affixing the stamp of the court "I authorize" on the decision of the bailiff, certified by the signature of the judge.
In another case, the judge issues a ruling on the refusal to authorize the execution of executive actions.
The court shall authorize the decision of the bailiff, submitted in the form of an electronic document, by certifying the electronic digital signature of the judge. In case of refusal to grant a sanction, the judge issues a reasoned decision in the form of an electronic document.
Thus, based on the semantic content of the specified rule of procedural law, the bailiff, in cases established by law, is obliged to issue a resolution on the performance of executive actions subject to court approval.
The court, having checked the legality and validity of the bailiff's executive actions, decides whether to authorize the bailiff's actions or refuses to do so.
The court refuses to authorize if it finds that this is not necessary for objective reasons, as well as if the content of the resolution does not meet the requirements of parts 1-2 of Article 252 of the CPC RK.
Part 5 of the Article of the CPC RK defines the procedure for appealing decisions, according to the rules provided for in Article 250 of this Code.
Consequently, the procedure for appealing decisions differs significantly from the previously existing procedure for appealing. Based on these circumstances, the CPC, as amended on October 31, 2015, stipulated that the parties to enforcement proceedings (the recoverer, the debtor) who disagree with the court-sanctioned bailiff's decision may appeal not the decision, as previously, but the actions of the bailiff, according to the rules provided for in Article 250 of the CPC.
It is necessary to pay attention to the fact that a complaint against the actions of a bailiff can also be considered by the judge who authorized the decision, that is, in this case, the norms of procedural law provide for an analogy in the consideration of cases with the cancellation of judicial acts by writ, simplified, correspondence proceedings. Part 5 of the same article provides for the procedure for appealing a court ruling on refusal to authorize a decision to carry out enforcement actions and may be appealed or protested to the court of appeal, whose decision is final.
The procedure for appealing a court ruling that has been refused a sanction remains the same.
According to Part 5 of Article 252 of the CPC, the decision of the bailiff to carry out enforcement actions authorized by the court may be appealed according to the rules provided for in Article 250 of this Code.
According to the rules of Article 250 of the CPC, a complaint may be filed against the actions (inaction) of the bailiff to execute enforcement documents, including challenging tenders, during enforcement proceedings or against the refusal to commit such actions by the recoverer or debtor.
Authorizing the decision of the bailiff on the restriction of a citizen's departure from the Republic of Kazakhstan
On December 29, 2015, paragraph 1 of article 33 of the Law on Enforcement Proceedings was amended in terms of the amount owed and the period of default.
In accordance with paragraph 1 of Article 33 of the Law on Enforcement Proceedings, in case of non-fulfillment by an individual, the head (acting) of a legal entity that is a debtor of claims in the amount of more than twenty monthly calculation indices contained in the enforcement document, as well as in case of non-fulfillment for more than three months of enforcement documents on the collection of periodic payments, the bailiff has the right, and upon application The recoverer is obliged to issue a resolution on the temporary restriction on the departure of these persons from the Republic of Kazakhstan.
The decision of the bailiff on the temporary restriction on the departure of an individual, the head (acting) of a legal entity that is a debtor, from the Republic of Kazakhstan is subject to court approval in accordance with the procedure established by the civil procedure legislation of the Republic of Kazakhstan.
And there is a small number of materials where the courts have sanctioned orders restricting the debtor's departure without taking into account the changes made. For example, on January 20, 2016, the Aktobe City Court authorized a decision by a private bailiff to temporarily restrict the departure of debtor C. The bailiff indicated in the decision that the Aktobe City court had decided to recover from debtor C. the amount of debt in the amount of KZT 27,961 and, in connection with the debtor's failure to comply with the requirements of the enforcement document, asked the court to authorize the decision.
The court authorized the bailiff's order, without paying attention to the fact that the amount of claims is less than 20 monthly calculation indices, whereas, taking into account the amendments to the Law on Enforcement Proceedings, the court had to refuse to authorize. On December 2, 2016, by a decree of the state bailiff of the republican state institution "Shuisky District Territorial Department of the Department of Justice of the Zhambyl region of the Ministry of Justice of the Republic of Kazakhstan", it was decided to take executive actions against debtor K., which was authorized by the court on the same day.
From the content of the above-mentioned resolution, it can be seen that the bailiff referred only to the court's decision in the installation part. And further, guided by paragraph 1 of Article 10, paragraph 1 of Article 33, subparagraph 1 of paragraph 1 of Article 126 of the Law on Enforcement Proceedings, decided to restrict the debtor's departure from the Republic of Kazakhstan. There is no other information in the resolution.
Similar violations were committed when authorizing the enforcement actions of private bailiffs of the executive district of the Zhambyl region of the city of Taraz.
Meanwhile, the bailiff's decision on enforcement actions should be motivated, it should indicate why the bailiff requests that this particular measure of enforcement be applied to the debtor, a statement of the fact that there are enforcement documents against the debtor and their non-enforcement is insufficient for the court to authorize the bailiff's actions.
A temporary restriction on the debtor's departure is a measure of compulsory enforcement related to the restriction of a citizen's constitutional right to leave the Republic of Kazakhstan.
In this regard, before authorizing the decision, the court must require the bailiff to prove that the reasons for the debtor's failure to execute the judicial act are disrespectful.
Thus, the very fact of non-fulfillment of the court's decision cannot be an unconditional basis for a temporary restriction on the debtor's departure from the Republic of Kazakhstan.
The court must be provided with evidence of the reasons for the disrespectful attitude towards the execution of the court decision.
During the generalization, it was found that bailiffs do not motivate the reason for taking executive actions in the form of restrictions on travel outside the Republic of Kazakhstan.
And in the rulings, bailiffs refer to the court's decision, the norm of the Law on Enforcement Proceedings and constitute the fact that the debtor has failed to comply with the bailiff's requirements.
The resolution does not contain information on who is the initiator of this measure (the bailiff or the recoverer), in favor of which amount is being recovered and in what amount. Based on the above examples, we believe that those courts that refuse to grant a sanction in this case act lawfully and reasonably.
For example, the state bailiff of the branch of the republican state institution "Zhambyl district Territorial Department of the Department of Justice of the Zhambyl region of the Ministry of Justice of the Republic of Kazakhstan" S. applied for the authorization of a decree prohibiting the departure from the Republic of Kazakhstan of debtor B., who does not fulfill alimony obligations for the maintenance of minor children.
The ruling of the Zhambyl District Court of the Zhambyl region refused to grant a sanction, arguing that the decision did not specify the motives and grounds for which it became necessary to take authorized actions.
Also, the materials of the enforcement proceedings confirming the validity of the sanctioned action were not attached. In this case, the authorization of temporary restriction orders was correctly refused due to the lack of actual enforcement actions and the absence of motives and grounds in the resolution, which necessitated the adoption of travel restrictions outside the Republic of Kazakhstan.
In accordance with the requirements of part 1 of Article 240-7 of the CPC RK (in the old version), in cases established by law, the bailiff issues a resolution on the execution of executive actions subject to court approval.
The resolution should set out the motives and grounds for which it became necessary to take the authorized actions. This rule of procedural law is also set out in article 252 of the CPC as amended on October 31, 2015.
In this regard, as before, and in 2016, judges should refuse to authorize the restriction of the debtor's departure from the Republic of Kazakhstan, if there are no motives and grounds in the decision of the bailiffs, which necessitated the adoption of authorized actions.
There are no controversial issues of jurisdiction during the study of the materials. The practice has developed as follows: the authorization of a bailiff's order is considered by the courts at the place where the enforcement actions were performed.
According to the requirements of paragraph 3 of Article 33 of the Law on Enforcement Proceedings, temporary restrictions on the departure of an individual, the head (acting) of a legal entity that is a debtor, from the Republic of Kazakhstan may be suspended if it is necessary to conduct medical treatment outside the Republic of Kazakhstan.
The decision of the bailiff to suspend the temporary restriction on the departure of an individual, the head (acting) of a legal entity that is a debtor, from the Republic of Kazakhstan, indicating the period of suspension, is subject to court approval in accordance with the procedure established by the civil procedure legislation of the Republic of Kazakhstan.
Thus, the specified norm allows to suspend the temporary restriction on the departure of an individual from the Republic of Kazakhstan, if there is a need for treatment abroad. When considering such materials, the courts should be guided by Part 1 of Article 72 of the CPC, which stipulates that each party must prove the circumstances to which it refers as the basis of its claims and objections.
Thus, when considering the debtor's complaint against the bailiff's refusal to suspend the temporary restriction on travel abroad, the debtor is obliged to provide evidence indicating the need for treatment outside the Republic of Kazakhstan.
It should be noted that when authorizing bailiffs' orders on the temporary restriction of the debtor to travel outside the Republic of Kazakhstan, the courts should take into account the circumstances of the case.
An analysis of judicial practice on authorizing bailiffs' orders to restrict a citizen's departure from the Republic of Kazakhstan has shown that a common practice has been established among the courts to review materials in this category and, in general, the requirements of both the Civil Procedure Law and the Law "On Enforcement Proceedings and the Status of Bailiffs" are respected by the courts, gross violations committed by the courts when reviewing materials of this category, it was not established.
At the same time, it should be noted that the temporary restriction on the debtor's departure is a measure of compulsory execution related to the restriction of the constitutional right of a citizen to leave the Republic of Kazakhstan.
For these reasons, before authorizing a ruling, the court must require the bailiff to prove that the reasons for the debtor's failure to execute the judicial act are disrespectful. Since the very fact of non-enforcement of a court decision cannot be an unconditional basis for a temporary restriction on the debtor's departure from the Republic of Kazakhstan, the court must be provided with evidence of disrespect for the reason for non-enforcement of the court decision.
Bailiffs do not give reasons for taking executive actions in the form of restrictions on travel outside the Republic of Kazakhstan. In their decisions, bailiffs refer to the court's decision, the provision of the Law on Enforcement Proceedings and state the fact that the debtor has failed to comply with the bailiff's requirements. The resolution does not contain information on who is the initiator of this measure (the bailiff or the recoverer), in favor of whom the amount is being recovered and in what amount.
And there is a small number of materials where the courts have sanctioned orders restricting the debtor's departure without taking into account the changes made. For example, on January 20, 2016, the Aktobe City Court authorized a decision by a private bailiff to temporarily restrict the departure of debtor C. The bailiff indicated in the decision that the Aktobe City court had decided to recover from debtor C. the amount of debt in the amount of KZT 27,961 and, in connection with the debtor's failure to comply with the requirements of the enforcement document, asked the court to authorize the decision.
The court authorized the bailiff's order, without paying attention to the fact that the amount of claims is less than 20 monthly calculation indices, whereas, taking into account the amendments to the Law on Enforcement Proceedings, the court had to refuse to authorize. On December 2, 2016, by a decree of the state bailiff of the republican state institution "Shuisky District Territorial Department of the Department of Justice of the Zhambyl region of the Ministry of Justice of the Republic of Kazakhstan", it was decided to take executive actions against debtor K., which was authorized by the court on the same day.
From the content of the above-mentioned resolution, it can be seen that the bailiff referred only to the court's decision in the installation part. And further, guided by paragraph 1 of Article 10, paragraph 1 of Article 33, subparagraph 1 of paragraph 1 of Article 126 of the Law on Enforcement Proceedings, decided to restrict the debtor's departure from the Republic of Kazakhstan. There is no other information in the resolution.
Similar violations were committed when authorizing the enforcement actions of private bailiffs of the executive district of the Zhambyl region of the city of Taraz.
Meanwhile, the bailiff's decision on enforcement actions should be motivated, it should indicate why the bailiff requests that this particular measure of enforcement be applied to the debtor, a statement of the fact that there are enforcement documents against the debtor and their non-enforcement is insufficient for the court to authorize the bailiff's actions.
A temporary restriction on the debtor's departure is a measure of compulsory enforcement related to the restriction of a citizen's constitutional right to leave the Republic of Kazakhstan.
In this regard, before authorizing the decision, the court must require the bailiff to prove that the reasons for the debtor's failure to execute the judicial act are disrespectful.
Thus, the very fact of non-fulfillment of the court's decision cannot be an unconditional basis for a temporary restriction on the debtor's departure from the Republic of Kazakhstan.
The court must be provided with evidence of the reasons for the disrespectful attitude towards the execution of the court decision.
During the generalization, it was found that bailiffs do not motivate the reason for taking executive actions in the form of restrictions on travel outside the Republic of Kazakhstan.
And in the rulings, bailiffs refer to the court's decision, the norm of the Law on Enforcement Proceedings and constitute the fact that the debtor has failed to comply with the bailiff's requirements.
The resolution does not contain information on who is the initiator of this measure (the bailiff or the recoverer), in favor of which amount is being recovered and in what amount. Based on the above examples, we believe that those courts that refuse to grant a sanction in this case act lawfully and reasonably.
For example, the state bailiff of the branch of the republican state institution "Zhambyl district Territorial Department of the Department of Justice of the Zhambyl region of the Ministry of Justice of the Republic of Kazakhstan" S. applied for the authorization of a decree prohibiting the departure from the Republic of Kazakhstan of debtor B., who does not fulfill alimony obligations for the maintenance of minor children.
The ruling of the Zhambyl District Court of the Zhambyl region refused to grant a sanction, arguing that the decision did not specify the motives and grounds for which it became necessary to take authorized actions.
Also, the materials of the enforcement proceedings confirming the validity of the sanctioned action were not attached. In this case, the authorization of temporary restriction orders was correctly refused due to the lack of actual enforcement actions and the absence of motives and grounds in the resolution, which necessitated the adoption of travel restrictions outside the Republic of Kazakhstan.
In accordance with the requirements of part 1 of Article 240-7 of the CPC RK (in the old version), in cases established by law, the bailiff issues a resolution on the execution of executive actions subject to court approval.
The resolution should set out the motives and grounds for which it became necessary to take the authorized actions. This rule of procedural law is also set out in article 252 of the CPC as amended on October 31, 2015.
In this regard, as before, and in 2016, judges should refuse to authorize the restriction of the debtor's departure from the Republic of Kazakhstan, if there are no motives and grounds in the decision of the bailiffs, which necessitated the adoption of authorized actions.
There are no controversial issues of jurisdiction during the study of the materials. The practice has developed as follows: the authorization of a bailiff's order is considered by the courts at the place where the enforcement actions were performed.
According to the requirements of paragraph 3 of Article 33 of the Law on Enforcement Proceedings, temporary restrictions on the departure of an individual, the head (acting) of a legal entity that is a debtor, from the Republic of Kazakhstan may be suspended if it is necessary to conduct medical treatment outside the Republic of Kazakhstan.
The decision of the bailiff to suspend the temporary restriction on the departure of an individual, the head (acting) of a legal entity that is a debtor, from the Republic of Kazakhstan, indicating the period of suspension, is subject to court approval in accordance with the procedure established by the civil procedure legislation of the Republic of Kazakhstan.
Thus, the specified norm allows to suspend the temporary restriction on the departure of an individual from the Republic of Kazakhstan, if there is a need for treatment abroad. When considering such materials, the courts should be guided by Part 1 of Article 72 of the CPC, which stipulates that each party must prove the circumstances to which it refers as the basis of its claims and objections.
Thus, when considering the debtor's complaint against the bailiff's refusal to suspend the temporary restriction on travel abroad, the debtor is obliged to provide evidence indicating the need for treatment outside the Republic of Kazakhstan.
It should be noted that when authorizing bailiffs' orders on the temporary restriction of the debtor to travel outside the Republic of Kazakhstan, the courts should take into account the circumstances of the case.
An analysis of judicial practice on authorizing bailiffs' orders to restrict a citizen's departure from the Republic of Kazakhstan has shown that a common practice has been established among the courts to review materials in this category and, in general, the requirements of both the Civil Procedure Law and the Law "On Enforcement Proceedings and the Status of Bailiffs" are respected by the courts, gross violations committed by the courts when reviewing materials of this category, it was not established.
At the same time, it should be noted that the temporary restriction on the debtor's departure is a measure of compulsory execution related to the restriction of the constitutional right of a citizen to leave the Republic of Kazakhstan.
For these reasons, before authorizing a ruling, the court must require the bailiff to prove that the reasons for the debtor's failure to execute the judicial act are disrespectful. Since the very fact of non-enforcement of a court decision cannot be an unconditional basis for a temporary restriction on the debtor's departure from the Republic of Kazakhstan, the court must be provided with evidence of disrespect for the reason for non-enforcement of the court decision.
Bailiffs do not give reasons for taking executive actions in the form of restrictions on travel outside the Republic of Kazakhstan. In their decisions, bailiffs refer to the court's decision, the provision of the Law on Enforcement Proceedings and state the fact that the debtor has failed to comply with the bailiff's requirements. The resolution does not contain information on who is the initiator of this measure (the bailiff or the recoverer), in favor of whom the amount is being recovered and in what amount.
President
Republic of Kazakhstan
© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
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