Execution of judicial acts on the recovery of alimony by bailiffs
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 may be 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 required to pay alimony, income received for work performed, and services provided under civil law contracts that are not one-time in 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 individual entrepreneurs and the founders of the LLP are debtors by their occupation.
The determination of debts by these categories of debtors is the most problematic for bailiffs, as a result of which 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 it can be seen from the salary certificate 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 underage children whose alimony has been forcibly collected.
When assessing evidence of the fulfillment of alimony obligations, it should be taken into account:
the source of the receipt of sums of money (the alimony payer or a third party); the frequency and regularity of the 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.
Earlier, the court order is 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 ICG reasonably accounted for the debt, not only currently determined, but also all the debt previously determined by the ICG 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.
Formulation of requirements for administrative claims challenging decisions, actions (inaction) of bailiffs
When filing an administrative claim to challenge the actions (inaction) of bailiffs, the plaintiffs state the claims in various editions.
By virtue of article 132 of the CPC, if an encumbering administrative act violates the rights, freedoms and legitimate interests of the plaintiff, he has the right to file a challenge claim demanding that the administrative act be revoked in full or in any part thereof.
In case of disagreement with the decision issued by the bailiff, the demands are made to declare this decision illegal.
Simultaneous filing of a claim for recognition of actions as illegal is not required. In accordance with part 2 of Article 84 of the CPC, an illegal administrative act may be repealed in whole or in part.
If the decision is declared illegal, the court cancels the said decision.
Jurisdiction of lawsuits to administrative courts
In accordance with article 127 of the Law on Enforcement Proceedings, the decision and action (inaction) of the bailiff to execute the enforcement document or the refusal to commit such actions may be appealed by the recoverer or the debtor to the court.
The complaint is filed with the court in accordance with the procedure established by the legislation of the Republic of Kazakhstan on administrative proceedings.
Based on the content of this rule, only the parties to the enforcement proceedings have the right to appeal against the actions of the bailiff.
However, in practice, disputes often arise with bailiffs from persons who are not parties to enforcement proceedings.
Paragraph 2 of the NP of the Supreme Court "On the application by courts of certain norms of legislation on enforcement proceedings" provides for the right of interested parties to challenge the actions of the Civil Protection Service.
By virtue of part 1 of Article 9 of the CPC, everyone has the right, in accordance with the procedure established by this Code, to apply to an administrative body, to an official or to a court for protection of violated or disputed rights, freedoms or legitimate interests.
This provision provides for the right to judicial protection if there is an interest.
When receiving claims from persons who are not parties to the enforcement proceedings, the courts should check whether there is another way to protect and restore the disputed right and whether there are significant legal consequences for the plaintiff from the actions committed.
For example, JSC is a recoverer of enforcement proceedings on debt collection from LLP in the amount of 220,989,149 tenge, court costs.
The LLP is also a debtor in enforcement proceedings for the recovery of wage arrears in favor of individuals for a total amount of KZT 17,569,000.
The actions of the CSI in the framework of the collection of wage arrears were appealed by JSC, which has the right to file a claim challenging the defendant's actions, which give rise to legal consequences for him, since the sold property was built under the terms of the Investment Agreement and was the subject of a pledge on the basis of the Pledge Agreement.
The claims were considered on the merits by the courts, and the claim was partially satisfied (6001-22-00 6ap/607).
In order to exclude different interpretations of the provisions of the Law on Enforcement Proceedings, the NP SC "On the application by Courts of Certain Provisions of the Law on Enforcement Proceedings" should specify the conditions under which an interested person has the right to appeal against the actions (inaction) of bailiffs in court.
The plaintiff must prove his material or legal interest in appealing the actions (inaction) of the bailiffs.
However, in the absence of a real legal interest and the existence of another way of protection, the claims of such persons are subject to refund.
For example, the claim of a person who is not the mortgagee of the sold property has been returned (6001-22-00-6ap/394).
Collection of state duty
Plaintiffs on claims to appeal the actions (inaction) of bailiffs from paying the state fee when filing a claim with the court are exempt in accordance with subparagraph 15) of Article 616 of the Code of the Republic of Kazakhstan "On Taxes and other mandatory payments to the budget."
In accordance with Part 1 of Article 122 of the CPC, issues related to the allocation of court costs are considered according to the rules of the CPC.
By virtue of part 1 of Article 117 of the CPC, the state fee from which the plaintiff was exempt, as well as the costs associated with the proceedings, are collected from the defendant, who is not exempt from paying court costs, to the state's income in full or in proportion to the satisfied part of the claim.
Upon satisfaction of the claim, the state fee to the local budget revenue is subject to collection from the bailiff in proportion to the satisfied part of the claim.
The state duty rate is calculated according to the rules of subparagraph 8) of paragraph 1 of Article 610 of the Code of the Republic of Kazakhstan "On Taxes and other mandatory payments to the budget" (0.5 MCI).
Suspension of enforcement proceedings
In accordance with subparagraph 13) of article 42 of the Law on Enforcement Proceedings, enforcement proceedings are subject to suspension within one working day in cases where enforcement proceedings are requested by the court.
In practice, courts in their rulings on actions in an incoming administrative case indicate the demand for enforcement proceedings.
After receiving the materials of the enforcement proceedings, the courts do not return the materials of the enforcement proceedings until the case is considered on its merits or until the court decision enters into force.
This practice entails a prolonged suspension of enforcement proceedings, violation of the rights of the claimant, and does not always meet the goals and objectives of administrative proceedings. In order to exclude violations and respect the rights of the parties to enforcement proceedings, the following sequence should be followed:
- the claim of the materials of the enforcement proceedings by a ruling on the actions of the court in the received administrative case;
- receipt from the bailiff of the originals of the enforcement proceedings on paper or electronic media;
- attaching the materials necessary for dispute resolution to the materials of the administrative case;
- the return of enforcement proceedings when necessary.
Based on the subject matter of the administrative claim, the defendant should refrain from executive actions within the contested stage.
Thus, if there is a court ruling by which the court has demanded from the bailiff the materials of the enforcement proceedings, it is necessary for the bailiff to issue a resolution suspending the enforcement proceedings until the official return of the materials by the court.
In order to form a uniform practice on this procedural issue, it is necessary to clarify in the NP of the Supreme Court "On the application by courts of certain norms of legislation on enforcement proceedings."
The time limit for appealing a court decision
Part 4 of Article 168 of the CPC stipulates that an appeal, a petition from the prosecutor for administrative cases challenging the actions (inaction) of bailiffs may be filed within ten working days from the date of the decision.
The date of the judgment is considered to be the date of the announcement of the judicial act.
When explaining a court decision, courts should indicate to the parties the specifics of the appeal period.
In order to ensure guarantees for the speedy resolution of disputes and the exclusion of abuse of law by debtors, provide for the entry into force of the court decision from the date of the announcement of the decision of the appellate instance.
The deadline for filing a claim (the practice of restoring deadlines)
Part 4 of Article 136 of the CPC provides that claims against the actions (inaction) of the bailiff for the execution of enforcement documents are filed with the court within ten working days from the date of the action (refusal to perform the action) or from the day when the recoverer or debtor, who was not notified of the time and place of the action by the bailiff, became aware of It is known about him.
The establishment of such a deadline is conditioned by the need to ensure the continuity of enforcement proceedings and cannot be considered as violating the right to judicial protection.
In practice, there are cases when the actions of bailiffs are appealed by debtors in order to delay the terms of enforcement proceedings, with reasons stating that the party was not informed of the materials of the enforcement proceedings in a timely manner, and therefore, claims are filed in violation of the established deadlines for applying to the court.
When considering this category of disputes, special attention should be paid to studying the materials of enforcement proceedings and to establish the methods and dates for notifying the parties to the enforcement proceedings of the actions taken.
By virtue of part 7 of Article 134 of the CPC, a missed deadline for filing a claim may be restored by a court in accordance with the rules of the CPC.
The reasons for missing the deadline for filing a lawsuit and their significance for the proper resolution of an administrative case are clarified by the court in a preliminary hearing.
In accordance with paragraph 2 of Article 126 of the CPC, the time limits established by law may be restored by the court if they are missed for a reason recognized by the court as valid.
At the same time, the validity of missing the deadline must be confirmed by acceptable and relevant evidence.
The analysis showed that the courts return claims when the reasons for missing the deadline are not objective and do not indicate the existence of any facts that would prevent the timely appeal of the plaintiff to the court.
For example, enforcement proceedings on foreclosure on property were in the proceedings of the CSI.
Electronic auctions were held on January 4, 2019, the results of which were appealed by the debtor.
In returning the claim, the courts indicated that acceptable and reliable evidence of the validity of the reasons for missing the deadline for appealing the actions of the judicial officer had not been provided.
The plaintiff's arguments that the time limit for appealing electronic bidding is three years are untenable, since this dispute arises from the actions of the bailiff in executing enforcement documents (6001-22 00-6ap/726).
Another example is also related to the lack of evidence, the validity of the reasons for the start of the deadline. The plaintiff was acquainted with the materials of the enforcement proceedings on February 8, 2021, as indicated in the receipt.
However, he did not apply to the court within the prescribed 10-day period.
In the petition for the restoration of the deadline for applying to the court, as a valid reason for his omission, it is indicated that the plaintiff became aware of the actual recovery of the amount owed on September 29, 2021.
In October and November 2021, due to illness, he was unable to prepare a lawsuit in court.
The court assessed the documents provided (a certificate from a therapist), stating that they did not confirm the validity of the reasons for missing the deadline (No. 6001-22-00-6ap/398).
Claim refund
Part 2 of Article 138 of the CPC provides 17 grounds for the return of an administrative claim.
Cases in this category are most often returned for the following reasons:
subclause 6) of part 2 of Article 138 of the APPC - the plaintiff withdrew the filed claim;
9) of part 2 of Article 138 of the CPC - the parties have concluded an agreement on reconciliation, mediation or dispute settlement through a participatory procedure, and it has been approved by the court;
11) of part 2 of Article 138 of the CPC - the case is not subject to consideration in administrative proceedings;
17) of part 2 of Article 138 of the CPC - the case is beyond the jurisdiction of this court.
Also, the reason for the return of the claim is provided by part 8 of Article 136 of the CPC, according to which skipping the deadline for filing a lawsuit without a valid reason, as well as the inability to restore the missed deadline for filing a lawsuit, are grounds for returning the claim.
The courts do not have any difficulties in resolving the issue of the return of claims in the analyzed category.
At the same time, the implementation of the principle of the active role of the court has significantly increased the number of cases resolved peacefully (concluding an agreement or withdrawing a claim).
Regulatory legal acts
The main regulatory legal acts regulating the issues of enforcement proceedings are:
The Constitution of the Republic of Kazakhstan;
APPC;
GK; GPK;
The Law on Enforcement Proceedings;
The Law of the Republic of Kazakhstan "On Evaluation activities in the Republic of Kazakhstan";
NP of the Supreme Court of March 31, 2017 No. 1 "On the application by courts of certain norms of legislation on enforcement proceedings";
NP of the Supreme Court of December 19, 2003 No. 12 "On liability for non-enforcement of judicial acts";
Rules approved by the Order of the Minister of Justice of the Republic of Kazakhstan dated February 20, 2015 No. 100;
Resolution of the Government of the Republic of Kazakhstan dated May 4, 2014 No. 437 "On approval of the amount of payment for the activities of a private bailiff".
In accordance with paragraph 3 of Article 76 of the Constitution of the Republic of Kazakhstan, judicial acts that have entered into legal force are binding on all state bodies, local governments, legal entities, officials, citizens and are subject to execution throughout the territory of the Republic of Kazakhstan.
The purpose of enforcement proceedings is to ensure the effective restoration of violated or disputed rights or legally protected interests.
Appealing against the actions (inaction) of a bailiff is a form of judicial control in enforcement proceedings, the purpose of which is to protect the rights and interests of the parties to the enforcement proceedings.
Abbreviations used
APPC – Administrative Procedural Code of the Republic of Kazakhstan;
CPC – Civil Procedure Code of the Republic of Kazakhstan;
Civil Code of the Republic of Kazakhstan;
The Law of the Republic of Kazakhstan "On Enforcement Proceedings and the status of Bailiffs" – The Law on Enforcement Proceedings;
NP VS – Normative Resolution of the Supreme Court of the Republic of Kazakhstan;
Rules for the sale of seized property, including at auction in the form of an electronic auction – Rules;
AIAS – Automated information and analytical system of judicial authorities of the Republic of Kazakhstan "Torelik";
SCAD VS – Judicial Board for Administrative cases of the Supreme Court of the Republic of Kazakhstan; SCAD or collegium – judicial board for administrative cases;
SMAS – specialized interdistrict Administrative Court;
DU – Department(s) of Justice;
GSI – State bailiff(s);
CSI – Private bailiff(s);
CGO – central government agency;
MIO – local executive bodies.
President
Republic of Kazakhstan
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