Disputes about penalty recovery

In accordance with article 171 of the Code, when arrears arise due to the fault of a person who is obliged to pay alimony under an agreement on the payment of alimony, and (or) a person who is obliged to pay alimony by a court decision, the guilty person pays the alimony recipient a penalty in the amount of one tenth of one percent of the amount of unpaid alimony for each day of delay. The recipient of alimony shall also have the right to recover from the person guilty of late payment of alimony all losses caused by the delay in fulfilling the obligation to pay alimony in the part not covered by the penalty. An alimony obligation is a monetary obligation that is subject to unconditional fulfillment from the moment of its occurrence until its full fulfillment or termination on the grounds provided for by law. The court collects a penalty from the resulting amount of the alimony obligation in connection with its improper performance. When considering cases of this category, it is necessary to find out why the person who is obliged to pay alimony does not pay them; what measures have been taken by bailiffs to execute the judicial act; is there any evasion of the person who is obliged to pay alimony from paying them?

 

The debtor's guilt in the formation of alimony arrears is an unconditional basis for collecting penalties and losses from him. Such responsibility cannot be assigned to the payer if the alimony arrears were caused by other persons, in particular, due to late payment of wages, delay or incorrect transfer of alimony amounts, etc. A summary of judicial practice showed that when considering such cases, the defendants referred to the apparent disproportionality of the penalty to the consequences of violating obligations to pay alimony on time and asked the court to reduce the amount of the penalty by applying the provisions of Article 353 of the Civil Code. However, the courts recognized this position as untenable and proceeded from the fact that a reduction in the amount of the penalty for late payment of alimony collected by the court on the basis of Article 353 of the Civil Code is not allowed. The penalty established by article 171 of the Code is a special measure of family legal responsibility that guarantees the exercise of the rights of needy family members to receive maintenance, and is collected in the form of a fixed amount of interest charged for each day of delay. The reduction of the penalty is not provided for in article 171 of the Code. However, some courts do not comply with these requirements of the law and the amount of the alimony penalty is unreasonably reduced. For example, P. filed a lawsuit against V. to recover a penalty for late payment of alimony. It was established that, on the basis of a court order, alimony payments for the maintenance of a child in the amount of one quarter of all types of earnings and other income were collected from the defendant in favor of the plaintiff. The bailiff's decision determined the alimony arrears for the period from 2014 to 2017 in the amount of 1,854,109 tenge. The claim was satisfied by the decision of the Semey City Court of October 6, 2017. The court, guided by the criteria of fairness and reasonableness, taking into account that the court's decision must be enforceable, as well as the financial situation of the parties, reduced the penalty for unpaid alimony to 700,000 tenge. It should also be noted that, while satisfying these claims, the courts often incorrectly calculate the amount of the penalty. When calculating the penalty, it must be borne in mind that the obligation to pay alimony is monthly in nature, and, therefore, the penalty for non-payment of alimony must be determined for each overdue monthly payment, based on the amount of this payment and the number of days of its delay, determined on the day of the court's decision on the recovery of the penalty.

Example: R. filed a lawsuit to recover a penalty for alimony for the maintenance of minor children in the amount of 17,415,470 tenge and for the maintenance of her spouse in the amount of 5,474,667 tenge. By the decision of the Almaty District Court of Astana dated January 23, 2018, R.'s claim was partially satisfied. It was decided to collect from T. in favor of R. a penalty for alimony in the amount of 4,023,938 tenge. By the resolution of the Judicial Board for Civil Cases of the Astana City Court dated April 24, 2018, the decision of the court of first instance was changed. The amount of the penalty has been reduced to 1,427,712 tenge. Judicial acts were annulled by the Supreme Court on the following grounds. By virtue of paragraph 1 of Article 171 of the Code, the penalty is subject to calculation for each overdue monthly payment, based on the amount of this payment and the number of days of its delay. However, the calculation was made by the courts without taking into account the requirements of this norm. When determining the penalty, the court of first instance calculated a penalty of one tenth of a percent from the total amount of unpaid alimony payments and multiplied this amount by the total number of overdue days. In turn, the appellate instance, disagreeing with the calculation of the court of first instance, calculated the penalty for each month separately, with the gradual addition of the penalty amount to the amount owed for the next month. Due to the absence in the case file of the bailiff's decisions on determining the amount of debt with information on the amount of monthly overdue payments, it was not possible to calculate the penalty to be paid at the court session of the judicial board, and therefore the case was sent for a new hearing. Upon a new review by the court of appeal, enforcement proceedings were requested, and the bailiff provided information on the debt with monthly payments. After that, the court calculated the penalty in strict accordance with the requirements of Article 171 of the Code.

 

The generalization has established that the calculation of the penalty is often carried out by multiplying the total amount of alimony arrears by 0.1 percent and by the total number of days overdue. In this case, the amount of the penalty, as a rule, exceeds the amount of the alimony debt for which the penalty is charged. This calculation cannot be considered correct. Example: The District Court No. 2 of the Auezovsky district of Almaty satisfied the claim of T. to B. for the recovery of a penalty for alimony in the amount of 36,481,703 tenge. The court pointed out that after issuing a court order to collect alimony for the maintenance of a minor child in the amount of 1/4 of all types of earnings and other income, the defendant evaded paying alimony, resulting in a debt of 22,903,197 tenge. The amount of the penalty was calculated by the court based on the period of debt formation - from February 16, 2009 to October 13, 2016, that is, for 2,700 days. At the same time, the court multiplied the amount owed for each year by 0.1% and the total number of days overdue. The total amount of the penalty was 36,481,703 tenge, with a debt of 22,903,197 tenge. In this regard, it should be clarified that when calculating the penalty, it should be taken into account that the obligation to pay alimony is monthly in nature, and, therefore, the penalty for non-payment of alimony should be determined for each overdue monthly payment based on the amount of this payment and the number of days of its delay, determined on the day of the court's decision on the recovery of the penalty. Disputes on the determination of the amount of alimony in case of temporary departure or permanent residence of a person obliged to pay alimony outside Kazakhstan According to Article 174 of the Code, in case of temporary departure or permanent residence of a person obliged to pay alimony outside Kazakhstan, he has the right to conclude with family members to whom he is legally obliged to provide maintenance, an agreement on the payment of alimony in accordance with articles 157-162 of the Code.

If an agreement is not reached, the interested person has the right to apply to the court with a request to determine the amount of alimony in a fixed amount of money or for a one-time payment of alimony, or for the provision of certain property on account of alimony, or for the payment of alimony in another way. In the absence of documents confirming the payment of alimony, the debtor is not allowed to leave for permanent residence outside Kazakhstan. Example: In the Ust-Kamenogorsk City Court, V. filed a lawsuit against S. on determining the amount of alimony in a fixed amount of money and permission to leave for permanent residence outside the Republic of Kazakhstan, indicating that a court order has collected alimony from him for the maintenance of a minor child.

 

Currently, the plaintiff intends to leave for permanent residence in the Russian Federation, but the defendant does not give a notarized consent to leave, which violates his constitutional right. The absence of the defendant's consent creates an obstacle to departure and obtaining the appropriate permission from the migration police. The court's decision satisfied V.'s claim. The amount of alimony is determined in a fixed amount of money and R. is allowed to leave for permanent residence outside the Republic of Kazakhstan. When making the decision, the court was guided by paragraph 3 of Article 141 of the Code and, when determining the amount of a fixed sum of money, proceeded from the amount of the minimum wage to the extent possible to preserve the child's previous level of security, taking into account the financial and marital status of the parties and other circumstances worthy of attention. Courts have no difficulties in resolving disputes in cases of this category. #Lawyer #Lawyer #Legal service #Legal advice 

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