Execution of acts on recovery of alimony
Paragraph 2 of the Law on Enforcement Proceedings regulates the procedure for the execution of enforcement documents on the recovery of alimony.
A typical mistake made by bailiffs when executing executive documents on the recovery of alimony is:
inaction (failure to take real measures) in the execution of the executive document;
incorrect calculation of alimony arrears;
incorrect assessment of the fulfillment/non-fulfillment of obligations to pay monthly payments.
In accordance with article 99 of the Law on Enforcement Proceedings, if it is impossible to collect alimony payments from wages or other income within three months, the bailiff issues a resolution on determining the debt and takes measures to ensure the execution of enforcement documents in accordance with Article 32 of this Law and forecloses on the debtor's property, except for property that cannot be A penalty has been levied in accordance with Article 61 of this Law.
The amount of alimony arrears is determined by the bailiff at the place of execution of the decision based on the actual salary (income) received by the debtor during the time during which the recovery was not carried out, or received by him at the time the debt was determined, at the option of the recoverer. If the debtor did not work during this period or documents confirming his earnings and other income have not been submitted, the alimony arrears are determined based on the average monthly salary in the Republic of Kazakhstan at the time of debt collection.
The Law on Enforcement Proceedings and the Order of the Minister of Justice of the Republic of Kazakhstan No. 372 dated December 24, 2014 "On approval of the list of types of wages and (or) other income from which alimony is withheld for the maintenance of minor children" defines an exhaustive list of types of income from which alimony is collected.
Thus, items 7 and 11 of the specified list relate to the income of a parent who is obliged to pay alimony, income received for work performed, services provided under civil law contracts that are not of a one-time nature; from engaging in entrepreneurial activity without forming a legal entity.
In this category, the actions of the bailiff to determine the debt are most often disputed, where the debtors by the nature of their work are individual entrepreneurs and the founders of the LLP.
The determination of debts by these categories of debtors is the most problematic for bailiffs, as a result, bailiffs often make mistakes when determining alimony arrears.
For example, the HSI determined the alimony arrears, the calculation was made from the average monthly salary in the Republic of Kazakhstan. Having disagreed with the calculation, the debtor provided salary certificates and employment documents. However, these documents have not been accepted. The debtor filed a complaint with the court. The courts, rejecting the claim regarding the determination of alimony arrears based on the calculation of the submitted salary certificate, concluded that there were contradictions in the documents submitted by the plaintiff, which were not eliminated at the court session. Thus, the debtor provided the court with a service agreement, an extract from the order, a certificate of salary and other income. The court found that the debtor was employed on the basis of a service agreement, whereas from the salary certificate it can be seen that this document was issued on the basis of an employment contract, that is, there are contradictions in the submitted documents. In this case, the bailiff lawfully refused to determine the alimony arrears based on the specified certificate (6001-22-00-6ap/584).
The debtors' disagreement is also due to the fact that bailiffs do not accept receipts for the transfer of monetary amounts to the accounts of the recoverer as confirmation of the payment of alimony.
When considering disputes related to the determination and calculation of alimony arrears, it is advisable to give a legal assessment of the legality of the bailiff's actions to determine alimony arrears.
When considering this category of disputes, it is necessary to take into account the interests of minor children whose maintenance payments have been forcibly collected.
When assessing evidence of the fulfillment of alimony obligations, it should be taken into account:
source of receipt of monetary amounts (alimony payer or a third party);
frequency and regularity of receipt of amounts;
the same size of the transferred amounts;
the presence of other monetary obligations between the parents (credit obligations, debt obligations, etc.);
the proportionality of the transferred amounts to the debtor's income.
For example, a court order has collected alimony for the maintenance of minor children. Previously, the court order was being executed by the GSI, which determined the debt for the period from March 2016 to April 2019. In October 2021, enforcement proceedings were initiated by the CSI, which determined the arrears for the period from April 3, 2019 to September 3, 2021, including the amount of previously established arrears.
The SCAD of the Supreme Court indicated that the CSI reasonably accounted for the debt not only currently determined, but also all the debt previously determined by the CSI due to its non-repayment by the plaintiff. This does not indicate that the defendant exceeded the three-year time limit established by law, and therefore the conclusions of the courts of first instance and the court of appeal on the violation of the terms are incorrect (6001-22-00-6ap/1035).
Bailiffs should carefully check the documents provided by debtors and their salaries.
The establishment and calculation of the actual debt is not included in the scope of the administrative case. When appealing decisions on debt determination, the correctness of the bailiff's calculation is subject to verification, the court should not assume the functions of the CSI and independently calculate the correct amount of debt.
ANALYSIS of the Supreme Court of the Republic of Kazakhstan on the judicial practice of considering administrative cases challenging decisions, actions (inaction) of bailiffs for the second half of 2021 and the first half of 2022.
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