Execution of judicial acts, the procedure for reviewing complaints against the actions of the bailiff, responsibility for non-execution of judicial acts
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, local governments, legal entities, officials, citizens and are subject to execution throughout the territory of the Republic of Kazakhstan. 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. Appealing against the actions (inaction) of a bailiff is a form of judicial control in enforcement proceedings aimed at protecting the rights and interests of the parties to enforcement proceedings. The subject of the appeal is the actions and inaction of the bailiff. The subjects of appeal against the actions (inaction) of the bailiff are the recoverer or debtor, their legal successors, as well as other persons who have the right to apply to the court for violated rights in the manner and within the time limits provided for in Chapter 29 of the CPC. It should be noted that the procedure for reviewing complaints against the bailiff in cases reviewed in 2015 was regulated by Article 240-5 and the provisions of Chapter 27 of the CPC (as amended), and in connection with the adoption of the new CPC, the procedure for reviewing cases of this category is regulated by the provisions of Article 250 and Chapter 29 of the CPC. The generalization was carried out on the basis of a study of judicial acts of the EAIAS database and the automated information and analytical system of judicial authorities "TORELIK" on cases and materials of the generalized category considered by courts in 2015 and the first half of 2016, certificates on the results of generalizations conducted by regional and equivalent courts (hereinafter referred to as regional courts), as well as supervisory and cassation practice of the Supreme Court. The main regulatory legal acts regulating the issues of enforcement proceedings are Kazakhstan, the Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC), the Law of the Republic of Kazakhstan
"On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law on Enforcement Proceedings), the Law of the Republic of Kazakhstan "On Evaluation Activities in the Republic of Kazakhstan" (hereinafter referred to as the Law on Evaluation Activities), as well as regulatory rulings of the Supreme Court of the Republic of Kazakhstan "On certain issues of application by Courts of the law on Enforcement proceedings" Kazakhstan No. 2 dated June 20, 2005 (hereinafter – NP) (with amendments and additions as of December 24, 2014), "On certain issues of the execution of judicial acts in civil cases" No. 6 dated June 29, 2009 (with amendments and additions as of December 24, 2014), "On Liability for Non-execution of Judicial Acts" No. 12 dated December 19, 2003 (with amendments and additions as of December 24, 2014), "On some issues of application by courts of the norms of Chapter 27 of the Civil Procedure Code of the Republic of Kazakhstan" No. 20 dated December 24, 2010, "On the adoption of interim measures in civil cases" No. 2 dated January 12, 2009 (with amendments and additions as of December 29, 2012), "On certain issues of invalidity of transactions and the application by courts of the consequences of their invalidity" No. 6 dated July 7, 2016, Rules for the sale of seized property, including at auction in in the form of an electronic auction, approved by the Order of the Minister of Justice of the Republic of Kazakhstan dated February 20, 2015 No. 100 (hereinafter referred to as the Rules). According to the data, in 2015, a total of 545,545 cases and materials related to enforcement proceedings were completed, which amounted to 50.4% of the total number of completed cases and materials in the republic (1,082,783). Of these, the largest part consists of materials on the authorization of bailiff's orders (52% of the number of completed cases and materials of the generalized category). Of the 545,545 cases and materials, 492,838 or 90.3% of the completed cases were considered with satisfaction, while 50,305 or 9.2% were rejected. For comparison, in 2014, a total of 349,038 cases and materials related to enforcement proceedings were completed, which accounted for 38% of the total number of completed cases and materials in the republic (916,363), of which 59% were materials for authorizing bailiff decisions. Of the 349,038 cases and materials, 310,571 or 89% of the completed cases were considered with satisfaction, and 25,815 or 7.4% were rejected. In 9 months of this year, 568,290 cases and materials of the generalized category were completed, which accounted for 54% of the total completed cases and materials in the republic (1,051,459). Of these, as before, the largest part consists of materials on the authorization of bailiff's orders (86%). Since 2016, separate records have been kept by category of materials in the statistical reports of the EAIAS of the Republic of Kazakhstan.
Name of the remaining unfinished business at the beginning of the reporting period, cases were received during the reporting period, applications were received during the reporting period, a ruling was issued, a claim was dismissed, a claim was dismissed, and a number of applications were filed, All cases left without consideration have been completed on the recommendation of the bailiff 53 2 14425 12490 10367 2059 10 197 12698 on authorizing the bailiff's decision to seize the debtor's property 4 0 140326 133977 127557 6394 0 2 133979 on authorizing the bailiff's decision to seize funds, held on the debtor's current account 8 3 133414 127822 125266 2547 1 1 127824 on authorizing the bailiff's decision to restrict a citizen's travel outside the Republic of Kazakhstan 7 1 119398 115553 109500 6034 0 3 115556 on authorizing other bailiff's decisions 1 6 122162 97687 93710 3972 0 10 97697 Out of 568 290 completed cases and materials with satisfaction 499,446 applications (submissions) were considered, or 88% of the completed ones, and 31,366 or 6% were rejected. The quality of the administration of justice in cases of the generalized category In 2014, the appellate and cassation instances canceled 1,638 judicial acts, or 0.5% of the total number of completed cases and materials of this category. Changed 189 or 0.05%. In 2015, the appellate and cassation instances cancelled 1,381 judicial acts, or 0.3% of the total number of completed cases and materials in this category. Changed 175 or 0.03%. In the first 9 months of this year, 928 judicial acts were canceled in the appellate instance, or 0.2% of the total number of completed cases and materials in this category. Changed to 136 or 0.02%. In the first 9 months of 2014, the supervisory authority cancelled 9 judicial acts, or 75% of the total number of 12 cases and materials of this category considered by the board. Changed by 1 or 8.3%. In the first 9 months of 2015, the supervisory authority cancelled 16 judicial acts, or 70% of the total number of 23 cases and materials of this category considered by the board. Changed 2 or 9%. In the first 9 months of 2016, 14 judicial acts were canceled in the cassation instance, or 67% of the total number of 21 cases and materials from this category considered by the board. Changed 5 or 24%. Jurisdiction According to Article 250 of the CPC, a complaint against the actions (inaction) of a state bailiff is filed with the court at the place of the territorial area served by the bailiff (when he performs executive actions). When appealing against the actions (inaction) of a private bailiff, the complaint is filed at the place of his registration. If the territorial area served by the bailiff or the place of registration of a private bailiff are located in the same locality as the place where the enforcement actions were performed, the complaint is filed at the place where the enforcement actions were performed. The generalization showed that with the introduction of the new CPC, the courts do not have jurisdiction issues, and the courts of first instance comply with jurisdiction requirements. For example, by the ruling of the Pavlodar City Court of April 11, 2016, the civil case on the complaint of S. Zh. was transferred to the jurisdiction of the Ekibastuz City Court of the Pavlodar region for the actions of a private bailiff of the Pavlodar regional executive district, due to the fact that the place of registration of the private bailiff, that is, the location of his office is the city of Ekibastuz of the Pavlodar region. The court did not properly accept the proceedings and referred the complaint to the jurisdiction, because when applying to the court, the party violated the provisions of part 1 of Article 250 of the CPC.
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