Fulfillment of the obligation of a written transaction
Writ proceedings are a simplified judicial procedure for the consideration by a judge of indisputable claims filed by the recoverer against the debtor, the list of which is provided for by law. The list of requirements for which a court order is issued is provided for in Article 135 of the CPC RK.
These are mainly applications for debt collection for the payment of expenses for the maintenance of the house, justified by Articles 18, 35, 60 of the Law "On Housing Relations". In addition, the courts, when issuing a court order in this category, are guided by Articles 272 and 273 of the Civil Code.
The jurisdiction of cases considered by writ is determined by chapter 3 of the Code of Civil Procedure.
Writ proceedings are initiated on the basis of the recoverer's appeal to the court with an application for the recovery of monetary amounts from the debtor for indisputable claims. The means of initiating a case in accordance with Part 1 of Article 136 of the CPC RK is an application for a court order. The requirements for the form and content of an application for a court order are provided for in art. 136 of the CPC RK.
According to paragraphs 4, art. 136 of the CPC RK, the requirement must be based on authentic documents. In writing, the claimant indicates his claim and the circumstances on which it is based. Documents confirming the stated requirement are attached to the application.
For example: Due to the failure to provide the original document confirming the stated claim, the judge of the Saryarkinsky District Court of Astana returned the application of A.E.A. to S.S.V. for a court order to collect the debt.
Documents confirming the applicant's claim must be submitted in the original or notarized copies.
Article 138 of the CPC RK regulates the issues of refusal to accept and return an application for a court order. This means that not every claim submitted to the court is the subject of judicial protection.
The judge refuses to accept or returns the application for a court order on the grounds provided for in Articles 151, 152 of the CPC RK. In addition, in accordance with Part 1 of Article 138 of the Civil Procedure Code of the Republic of Kazakhstan, the judge returns the application in cases where the claimed claim is not provided for in Articles 151, 152 of the Civil Procedure Code of the Republic of Kazakhstan; the debtor is outside the jurisdiction of the courts of the Republic of Kazakhstan; documents confirming the claimed claim have not been submitted; there is a dispute about the law that cannot be resolved on the basis of the submitted documents; the form and the contents of the application do not comply with the requirements of art. 138 of the CPC RK.
If deficiencies that can be eliminated are identified in the application, the judge has the right to set a time limit for their elimination for the recoverer. However, this period may not exceed three days. If the claimant resolves the identified deficiencies within the prescribed period, the application is considered submitted. If the claimant fails to comply with the judge's requirements to eliminate the identified deficiencies, a ruling is issued on the refusal to accept the application.
An application for a court order is considered by a judge within three days from the date of receipt of the application to the court. The court order, which is the result of consideration of the applicant's indisputable claim, has a double legal meaning, namely, it is an act of the judge to consider the relevant application and an executive document.
The content of the court order is determined by art. 140 of the CPC RK. It must include the following:
production number and date of the order;
name of the court, surname and initials of the judge who issued the order;
the name, place of residence, or location of the claimant;
name, place of residence or location of the defendant;
the law on the basis of which the claim is satisfied;
the amount of money to be recovered;
the amount of the penalty, if its recovery is provided for by law or contract;
the amount of the state fee to be collected from the defendant in favor of the recoverer or to the local budget;
terms and procedure for appealing a court order. The court order is signed by the judge.
In accordance with Article 141 of the CPC RK, a copy of the court order is sent to the debtor immediately with a notice of delivery.
The terms and procedure for appealing a court order are regulated by art. 142 of the CPC RK. According to this provision of the law, the debtor has the right, within ten days from the date of receipt of a copy of the court order, to send an objection to the stated claim to the court that issued the order using any means of communication.
The grounds and procedure for revoking a court order are determined by the provisions of Article 142 of the CPC RK. The reason for the cancellation of the court order is the objection received from the debtor within the prescribed period against the stated claim.
When resolving the debtor's objection to the stated claim, the judges are guided by paragraph 16 of the Normative Resolution No. 2 of the Supreme Court of the Republic of Kazakhstan "On the application by courts of certain norms of civil procedure legislation", which clarifies that if the debtor, within ten days from the date of receipt of a copy of the court order, objections to the stated claim are sent to the court, then regardless of their content, the judge must to make a ruling on the cancellation of the court order. If the deadline for filing such objections is missed by the defendant for valid reasons, then in accordance with art. 126 of the Civil Procedure Code of the Republic of Kazakhstan, it can be restored. If the cancelled court order has been sent for execution or issued to the recoverer, then such court order is withdrawn by the court.
In the rulings on the cancellation of a court order, the judges explain to the recoverer the procedure for protecting the violated right in the course of the claim proceedings.
Attention!
The Law and Law Law Company draws your attention to the fact that this document is basic and does not always meet the requirements of a specific situation. Our lawyers are ready to assist you in drafting any legal document that suits your situation.
For more information, please contact a Lawyer/Lawyer by phone; +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attention!
The Law and Law Law Firm draws your attention to the fact that this document is basic and does not always meet the requirements of a specific situation. Our lawyers are ready to assist you with legal advice and drafting any legal document that suits your situation.
For more information, please contact a Lawyer/Lawyer by phone; +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
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