Illegal withholding of funds from wages transferred to a bank account

           A bank loan agreement was concluded between M.D.A., (hereinafter referred to as the Plaintiff) and JSC "KaspiBank.", (hereinafter referred to as the Defendant). It should be noted that the Plaintiff did not fulfill his obligations properly due to financial difficulties and deterioration of his financial situation. At the moment, the Plaintiff is working in the offices of the RSE PCV in the Saryagash district., which charges through the card account of JSC Halyk Bank of Kazakhstan., account no.KZ65601000........ Since December 2015  wages are withdrawn from the account of Halyk Bank of Kazakhstan JSC without acceptance, because The defendants were issued a payment request- an order (PTP) to their card accounts. In this regard, the Plaintiff cannot receive his salary. In this case, the Defendant is withholding wages at 100% of the amount. We consider the actions of the defendants to withdraw funds without acceptance to be illegal and unconstitutional, since, according to the regulatory requirements of Article 26 of the Constitution of the Republic of Kazakhstan, no one can be deprived of their property, except by a court decision. Also, article 28 of the Constitution of the Republic of Kazakhstan states that a citizen of the Republic of Kazakhstan is guaranteed a minimum wage and pension, social security by age, in case of illness, disability, loss of breadwinner and for other legitimate reasons. Paragraph 2 of Article 4 of the Constitution of the Republic of Kazakhstan states: The Constitution has the highest legal force and direct effect on the entire territory of the Republic of Kazakhstan.

Illegal withholding of funds from wages transferred to a bank account

At the same time, in accordance with paragraphs 1, 3, art.137 of the Labor Code of the Republic of Kazakhstan, it is determined that deductions from an employee's salary are made by court decision, as well as in cases provided for by the laws of the Republic of Kazakhstan. The total amount of the monthly deduction may not exceed fifty percent of the salary due to the employee. According to Article 3 of the Labor Code, the purpose of labor legislation is the legal regulation of labor and other relations directly related to labor, as well as the protection of the rights and legitimate interests of the parties to labor relations, the establishment of minimum guarantees of rights and freedoms at work. At the same time, in accordance with paragraph 4 of Article 9 of the Labor Code, the laws of the Republic of Kazakhstan should not reduce the level of rights, freedoms and guarantees established by this Code. In such circumstances, the arguments that the norms of labor legislation establishing the limits of deduction from wages do not apply to the relations of creditor banks and borrowers are unfounded, since the minimum monthly wage and the limitation of the amount of deductions from an employee's salary by virtue of art. 120 of the Labor Code of the Republic of Kazakhstan are state guarantees in the field of remuneration.. Also in the Law of the Republic of Kazakhstan On Pension Provision Article 23. Deductions from the pension at the point:

Deductions from pensions may be made by way of enforcement proceedings, except in cases of overpaid pension amounts due to errors in assigning pensions, when deductions are made on the basis of a recipient's application, as well as cases of withholding income from convicted persons deprived of liberty.

Deductions from the pension are made from the amount due. 3. No more than 50 percent of the amount due may be deducted from the pension.

In addition, Article 95 of the Law of the Republic of Kazakhstan "On enforcement proceedings and the status of bailiffs" states that when foreclosing on wages or other types of income of the debtor according to one or more enforcement documents, the debtor must retain at least fifty percent of wages or other income. Based on Article 741 of the Civil Code of the Republic of Kazakhstan, it is stipulated that the withdrawal of money from banks and other organizations engaged in certain types of banking operations of legal entities and citizens without their consent may be carried out only on the basis of a judicial act that has entered into force, as well as in cases provided for by the Tax Code of the Republic of Kazakhstan, the customs legislation of the Customs Union and (or) the Republic of Kazakhstan and the legislative acts of the Republic of Kazakhstan on pension provision and compulsory social insurance. Thus, if there are conditions in the Loan Agreement regarding the Bank's right to withdraw money from the Borrower's bank accounts, including those opened with other banks and organizations, without acceptance and/or by direct debit of a bank account. This position is explained in the letter of the Prosecutor General's Office of the Republic of Kazakhstan dated January 30, 2012 No. 2-012801-12-04107. This letter explains that the actions of second–tier banks to withdraw funds from borrowers' personal accounts without acceptance, exceeding 50% of the salary credited to the borrower's wages, are unlawful and unjustified.

Illegal withholding of funds from wages transferred to a bank account

Based on the above, guided by Articles 4, 26, 28 of the Constitution of the Republic of Kazakhstan, 110, 148-150 of the CPC of the Republic of Kazakhstan, the Court was asked to: Assign obligations to JSC "KaspiBank"., in revocation of the PTP (Payment Request order) from JSC "People's Bank of Kazakhstan", account no.KZ6560100020....., through which the Plaintiff receives wages from; To impose obligations on JSC "KaspiBank". subsequently, not to issue the PTP to the account of JSC "People's Bank of Kazakhstan", No. KZ65601000200..... through which the Plaintiff receives wages. Subsequently, during the consideration of the civil case by the Defendant, our demands were fully satisfied and we wrote Applications to the court for the return and abandonment without consideration. On April 12, 2016, the judge of the Bostandyk District Court of Almaty, based on the above, guided by Articles 168,279, 268-269 of the CPC, the judge DETERMINED:   The statement of claim of M.D.A. to Kaspi Bank JSC on the illegal withholding of funds from wages transferred to the settlement account should be left without consideration in connection with the defendant's satisfaction of the plaintiff's claims.

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