Drafting the operative part of the decision
According to parts six and seven of Article 226 of the CPC, the operative part of the decision must contain the court's conclusion on the satisfaction of the claim or the rejection of the claim in whole or in part, an indication of the distribution of court costs, the time and procedure for appealing the decision, as well as other conclusions. In the case when the court establishes a certain procedure and time limit for the execution of the decision, applies the decision for immediate execution or takes measures to ensure its execution – all this must be indicated in the decision. By virtue of paragraph 17 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan "On Judicial Decision" dated July 11, 2003 No. 5, the court is obliged to state the operative part of the decision clearly and clearly so that there are no ambiguities and disputes during the execution of the decision. A generalization of judicial practice has shown that when satisfying claims for the recovery of alimony for two or more minor children in proportion to the debtor's earnings, the courts, having established the amount of alimony for children in accordance with paragraph 1 of Article 139 of the Code on the day of the decision, determine the common period for all children to collect alimony in this amount - until they are of legal age. This approach does not take into account that the children for whom alimony is being collected reach adulthood at different times, and reaching the age of 18 by one of the children, in accordance with paragraph 1 of Article 139 of the Code, entails a change in the amount of alimony determined by a judicial act. This situation leads to the fact that after one of the children reaches the age of majority, alimony payments continue to be withheld at the same amount. In such cases, debtors apply to the court with claims for reducing the amount of alimony, for termination of the recovery of alimony for an adult child, or for changing the procedure for collecting alimony and other claims.
In this regard, it seems to be a correct practice when, when collecting alimony from parents for the maintenance of two or more children, the courts indicate in the operative part of the decision or in a court order the amount of the share to be collected, as well as the subsequent change in this share and the periods of recovery of alimony in a new amount, depending on the age of majority of each child. Thus, when collecting alimony for three children, the courts indicate that alimony in the amount of 1/2 of earnings and (or) other income is collected before the eldest child reaches the age of majority. Upon reaching the age of majority, alimony is collected for two children in the amount of 1/3 of the parent's earnings and (or) other income until the second child reaches the age of majority, and upon reaching the age of majority - in the amount of 1/4 until the third child reaches the age of majority. The operative part of the court order or court decision must contain an indication of the recovery of alimony not only from the defendant's salary, but also from other incomes, as well as a reference to the monthly deduction of alimony, otherwise the court decision may become unenforceable. This instruction was missing for a small number of court decisions. The summary also showed that in some cases, the courts in the operative part of the decision, in violation of subparagraph 1) of Article 243 of the CPC, did not indicate the immediate execution of the court's decision regarding the recovery of alimony. In some cases, the operative part of the decision indicated the revocation of a previously issued writ of execution, since on the basis of the decision to change the amount of alimony, the court issues a new writ of execution, which will indicate the new amounts of alimony established by the court. This point is not directly regulated by law.
Example: In the case of M.'s claim against K. and G. for a reduction in the amount of alimony, the court, while satisfying the claim and reducing the amount of alimony in favor of the claimants, indicated in the operative part of the decision that the previously issued court orders had been withdrawn from execution. In the operative part, the courts also indicate the recovery of alimony in a new amount from the date of entry into force of this decision, and previously issued enforcement documents are withdrawn from execution. Example. The decision of the Magzhan Zhumabayev district court of North Kazakhstan region dated April 26, 2018 on the claim of S. to Zh. and A. This practice of the courts seems to be correct. By analogy with the law, it is possible to apply subparagraph 5) of paragraph 1 of Article 47 of the Law on Enforcement Proceedings, stating that the cancellation of the decision of the relevant body on the basis of which the enforcement document was issued is the basis for the termination of enforcement proceedings. Despite the fact that the court's decision on the recovery of alimony is not canceled, the court's conclusion on changing the amount of alimony previously established by the court essentially cancels the previous court's conclusion on the establishment of a certain amount of alimony. An earlier decision on the recovery of alimony can no longer be enforced, enforcement proceedings on it must be terminated, and instead, based on a new decision to change the amount of alimony, new enforcement proceedings will be initiated. By virtue of the first part of Article 233 of the CPC, when making a decision in favor of several plaintiffs, the court in the operative part of the decision indicates in which part it applies to each of them, or indicates that the right of recovery is solidary. This requirement is not always fulfilled by the courts. Example: The decision of the Shieli district Court of the Kyzylorda region satisfied the claim of E. and R. to N. for the recovery of alimony for the maintenance of parents. The court decided to collect alimony payments in the amount of 20 MCI from the defendant for the maintenance of E. and R.'s parents. At the same time, in violation of the requirements of the first part of Article 233 of the CPC, the operative part of the decision does not specify in which part the decision applies to each of the claimants.
If the right of recovery is solidary, then this should also be indicated in the operative part of the decision. Failure to comply with the above-mentioned requirements of the law makes it difficult to execute court decisions, and it becomes necessary to clarify or make an additional decision. It should be noted that in the operative part of the decision on exemption from payment of alimony, it is necessary to indicate the judicial act on the basis of which alimony was collected.
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