Indexing of awarded monetary amounts
In accordance with Article 239 of the CPC, the court, at the request of the recoverer, may make an appropriate indexation of the sums of money collected by the court based on the official refinancing rate of the National Bank of the Republic of Kazakhstan on the day of execution of the court decision.
Indexation is one of the ways to compensate the creditor for losses incurred as a result of the depreciation of money (inflation). This provision is intended to protect the plaintiff's interests from inflation as a result of late execution of the court's decision by the defendant. The provision of this provision of the law applies only if the debtor has executed the judicial act in full. Paragraph 31 of the normative resolution of the Supreme Court No. 5 of July 11, 2003 "On Judicial Decision" clarifies that the indexation of monetary amounts recovered by court decision is carried out from the moment the court decision enters into force until its execution.
This is due to the fact that a long period may elapse between the entry into force of the decision and its execution, during which the amounts already collected by the court decision have been inflated. The court has the right to index the amounts recovered by the court if, from the moment the court decision entered into force until its execution, the amounts recovered have become devalued. This is confirmed by the official refinancing rate of the National Bank, which the plaintiff must submit in support of the stated claims.
By the resolution of the Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan dated October 13, 2015, the ruling of the court No. 2 of the Kazybekbi district of Karaganda dated February 02, 2015 was amended, which was left unchanged by the resolution of the Appellate Judicial Board for Civil and Administrative Cases of the Karaganda Regional Court dated March 05, 2015 and the decision of the cassation Judicial Board The Karaganda Regional Court of April 30, 2015 in connection with the, that the court of first instance unreasonably reduced the amount of indexation from KZT 3,998,768 to KZT 500,000 by applying the provision of Article 297 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code).
By changing the judicial act, the supervisory judicial board concluded that Article 297 of the Civil Code regulates the procedure for collecting penalties, which is one of the types of liability for improper performance of obligations, and can be reduced taking into account the degree of fulfillment of obligations by the debtor and the interests of the debtor and creditor that deserve attention. While the indexation of the awarded amount is not one of the types of civil liability and is carried out in order to protect the person in whose favor the amount was collected from the effects of inflation that occurred during the non-execution of the judicial act, that is, it allows you to fully compensate for the losses incurred by the recoverer.
In this regard, the amount of indexation cannot be reduced by the court on the basis of Article 297 of the Civil Code, therefore it is subject to recovery in full for the period from the date of entry into force of the court decision until its execution.
The court unreasonably applied Article 297 of the Civil Code.
MKO "T" LLP applied to the court for indexation of the awarded amounts, recovery from defendant X. of the amount of 583,977 tenge, arguing that the decision of the Aktobe city Court of June 14, 2010 was executed on June 17, 2015.
By the ruling of the Aktobe City Court dated January 12, 2016, the application of MKO "T" LLP for the recovery of the indexation amount was partially satisfied, the amount of indexation in the amount of 70,000 tenge was recovered from X. in favor of MKO "T" LLP, the rest of the application was denied.
In deciding to partially satisfy the application, the court unreasonably applied Article 297 of the Civil Code.
The debtor's fault in this case is not significant. Therefore, the courts, which, citing the absence of the debtor's guilt in delaying the execution of the decision, refuse to index, allow a wrong interpretation of the law.
Thus, JSC "Bank" applied to the court for recovery of the indexation of the awarded monetary amounts in the amount of 4,045,353 tenge, due to the fact that by the decision of the Taraz City Court of December 09, 2009, 12,199,981 tenge and 365,999 tenge court costs were recovered from K. in favor of JSC "Bank". The decision of the Taraz City Court of October 06, 2016 denied the application.
By refusing to satisfy the application, the court motivates it with the following circumstances: The debtors are not guilty of the fact that they could not timely pay the amount collected by the court decision, since they did not have the opportunity to repay the debt in a timely manner, since there were no incomes.
When issuing a loan, the bank must provide for the solvency of the defendants.
The indexing of the awarded amounts was refused due to the fact that no evidence of the execution of the decision was provided.
Thus, Z. applied to the court to the debtor T.(L) for the indexation of the amounts awarded, arguing that by the decision of the Abai District Court of Shymkent on May 30, 1996 in a civil case on her claim to L. for debt collection, the amount of 77,000 tenge was recovered from the defendant.
As a result of the defendant's prolonged execution of the court's decision, the funds designated for collection were devalued. According to her calculations, the amount of 77,000 tenge determined by the court decision of May 30, 1996 for the period from May 30, 1996 to February 24, 2016 is subject to indexation in the amount of 169,934 tenge.
The decision of the Abai District Court of Shymkent dated March 31, 2016 denied the application. In rejecting the application, the court argued that the applicant's party had not submitted any evidence to the court about the execution of the decision.
According to the letter from the bailiff, the writ of execution was returned in connection with the announcement of the search for the debtor L.
However, due to similar circumstances, namely due to the fact that the court's decision was not executed, on August 26, 2016, the Kyzylorda City Court returned A.'s application for indexation of the awarded amounts as submitted prematurely.
The calculation of the indexing amount submitted by the recoverer is erroneous.
Sh. applied for indexation of the awarded amount, arguing that by the decision of the Akkayyn District Court of North Kazakhstan region dated November 02, 2011, 150,000 tenge was recovered in his favor from K. in compensation for the damage caused.
By the ruling of the Akkayyn District Court of North Kazakhstan region, the application was partially satisfied, the amount of KZT 37,125 was recovered from the defendant, since the applicant applied the refinancing rate applicable during the execution periods, which contradicts the provisions of Article 239 of the CPC, which provides for the application of the official refinancing rate effective on the day of execution of the court decision.
The collection of indexation was refused, due to the fact that the applicant did not provide evidence confirming that the collected funds were devalued.
Thus, the applicant JSC "Investment" applied to the court for indexation of the awarded amounts, arguing that by the decision of the Abai District Court of Shymkent dated November 26, 2012, the amount of debt under the bank loan agreement dated August 01, 2006 in the amount of 3547,832 tenge was recovered from T. in favor of JSC "B".
The court's decision entered into force on January 30, 2013, and was executed in June 2014. By the ruling of the Abaysky District Court of July 26, 2016, the application was denied, due to the fact that the applicant did not attach evidence confirming that the funds collected in the specified period from January 30, 2013 to June 16, 2014 had depreciated.
We believe that indexation should have been levied in this case, since indexation is carried out in order to protect the person in whose favor the amount was recovered from the effects of inflation that occurred during the non-execution of the judicial act, that is, it allows to fully compensate the recoverer's losses.
The request for indexing was refused, due to the fact that indexing is a court right, not an obligation.
The applicant Sh. applied to the court for the indexation of the monetary amount, recovery of KZT 141 334 from the defendant, arguing that by the decision of the Kostanay District Court of Kostanay region dated 07/09/2013, the loan amount of KZT 2,200,000, the penalty of KZT 82 048 and court costs were recovered from B. in favor of Sh. the rest of the claim was denied.
By the ruling of the Kostanay City Court of Kostanay region dated June 17, 2016, the application was denied.
By refusing to satisfy the application, the court justifies the ruling by saying that, in accordance with part 1 of Article 239 of the CPC, indexing the amount of money recovered by a court decision is a court right, not an obligation.
By the ruling of the Judicial Board for Civil Cases of the Kostanay Regional Court dated July 20, 2016, the court's ruling was overturned and the case was sent for a new hearing, due to the fact that the court did not provide the reasons for the decision to reject the application for indexation, paragraph 12 of Article 140 of the CPC (in the old version) provided that a court order is issued if There is a requirement to index the awarded amounts.
In the current CPC, the requirements for which a court order is issued are provided for in Article 135 of the CPC.
A generalization conducted in 2015 using the classifier on the topic "Indexing of awarded amounts" found that the courts of the republic basically refused to accept applications for a court order to index the awarded amounts, with a recommendation to applicants to apply in accordance with article 234/old edition/ The Civil Procedure Code, in connection with the existence of a dispute.
However, in the new CPC, this paragraph providing for the issuance of an order upon request for indexing is deleted, which is correct, since according to Article 234 of the CPC (old edition) and Article 239 of the CPC (new edition), indexing is considered in a court session with the participation of the parties to the case.
When resolving the issue of indexing the sums of money collected under the court act, the court must establish the following circumstances:
When resolving the issue of indexing the sums of money collected under the court act, the court must establish the following circumstances:
1) the court's decision has been executed in full;
2) the indexation calculation is based on the official refinancing rate of the National Bank of the Republic of Kazakhstan on the day of execution of the court act.
3) the indexation is calculated for the period from the date of entry into force of the decision until the date of the debtor's actual fulfillment of the monetary obligation, with the exception of the deferral or installment period. Indexing is an independent method of protecting the rights of the claimant, designed to implement the principle of full compensation for losses due to late execution of a judicial act.
The indexation of the awarded amount is not one of the types of civil liability and is carried out in order to protect the person in whose favor the amount was collected from the effects of inflation that occurred during the non-execution of the judicial act, that is, it allows to fully compensate the recoverer's losses.
In this regard, the amount of indexation cannot be reduced by the court on the basis of Article 297 of the Civil Code, therefore it is subject to recovery in full for the period from the date of entry into force of the court decision until its execution.
Consequently, the courts, which, with reference to Article 297 of the Civil Code, reduce the amount of indexation, make illegal decisions.
Regulatory legal framework.
- The Constitution of the Republic of Kazakhstan dated August 30, 1995;
- The Civil Procedure Code of the Republic of Kazakhstan dated October 31, 2015 No. 377-V SAM.;
- Civil Procedure Code of the Republic of Kazakhstan dated July 13, 1999 No. 411 (Expired);
- Civil Code of the Republic of Kazakhstan (Special Part) dated July 1, 1999 No. 409;
- Regulatory resolution of the Supreme Court of the Republic of Kazakhstan "On the judicial decision" dated July 11, 2003 No. 5;
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