Initiation of enforcement proceedings
Typical mistakes of bailiffs at the stage of initiation of enforcement proceedings are:
Incorrect calculation of the deadline for submitting an enforcement document for enforcement;
Initiation of enforcement proceedings in violation of the territorial rule;
Non-compliance of the enforcement document with the requirements of the Law on Enforcement Proceedings.
The bailiff initiates enforcement proceedings on the basis of the enforcement document.
Article 9 of the Law on Enforcement Proceedings provides for an exhaustive list of enforcement documents.
This list is not subject to extended interpretation.
The time limits for submitting enforcement documents for execution are regulated by article 11 of the Law on Enforcement Proceedings.
At the same time, the missed deadline can be restored only by the court that issued the judicial act, or by the court at the place of execution.
The deadline for submitting an enforcement document for execution is interrupted:
1) presentation of the enforcement document for execution;
2) partial execution of the enforcement document by the debtor, about which the bailiff makes a note in the enforcement document;
3) for the period of the debtor's search.
After the break, the term starts again, and the time elapsed before the break is counted in the new term.
Based on the literal interpretation of this rule, in order to calculate the deadline for submission for execution, it is necessary to establish all periods of the break period from the date of the initial submission for execution.
For example, by a court ruling dated December 9, 2016, the agreement between G. and A. was approved, according to which the latter accepted an obligation to repay the debt owed to the fund. On October 20, 2021, the CSI initiated enforcement proceedings at the request of the foundation.
Recognizing the actions to initiate enforcement proceedings as illegal, the courts concluded that the deadline for submitting a writ of execution under the Agreement expired in 2019. In addition, the fund does not have the right to submit a writ of execution. The cassation instance recognized the conclusions of the courts as justified, and the judicial acts as lawful (6001-22-00-6ap/537).
Earlier (before the amendment to the Law on Enforcement Proceedings was introduced on January 10, 2020), the break in the deadline actually "reset" the deadlines for submission for execution. In the current version, the provision of the Law on Enforcement Proceedings provides for the inclusion in the new term of the time that expired before the break.
Therefore, in order to calculate the deadline for submitting a writ of execution, the entire period (from the date of issue of the writ of execution) when the writ of execution was not enforced must be taken into account.
There are situations when the deadline for submitting an enforcement document for execution is incorrectly calculated. For example, a court decision of November 25, 2014 resolved a dispute over the division of property between spouses. On April 17, 2015, the court issued a writ of execution. Due to the presence of errors in the writ of execution, on June 29, 2018, the claimant received an amended writ of execution. On June 25, 2021, enforcement proceedings were initiated. In this case, the CSI had no grounds for initiating enforcement proceedings, as the time limits for enforcement had expired (6001-22-00-6ap/318).
To avoid errors in calculating the time limits for submitting an enforcement document for execution in the NP of the Supreme Court "On the application by Courts of Certain Norms of legislation on enforcement proceedings" It is necessary to clarify the procedure for calculating time limits under article 11 of the Law on Enforcement Proceedings.
The bailiff is also required to check whether the debtor had time for voluntary execution.
Debtors often argue that they were not given such a period.
By virtue of paragraph 1-1 of Article 11 of the Law on Enforcement Proceedings, enforcement documents may be submitted for enforcement no earlier than five working days after the entry into force of a judicial act, with the exception of documents provided for in subparagraph 4) paragraph 1 of this article.
These deadlines are mandatory, and their violation entails a refusal to initiate enforcement proceedings.
For example, on October 1, 2021, a notary issued an executive order to collect debts from LLP 1 in favor of LLP 2. The enforcement inscription was issued to the claimant by a notary on October 18, 2021, and presented for execution on the same day.
By the decree of the CHSI dated October 19, 2021, enforcement proceedings were initiated, and enforcement measures were taken.
In satisfying the demands for the cancellation of the decision to institute enforcement proceedings, the courts concluded that the debtor had not been given time to voluntarily comply with the requirements of the executive inscription. The term is calculated from the day following the issuance of the executive inscription to the claimant (6001-22-00-6ap/276).
Article 38 of the Law on Enforcement Proceedings provides for the right of a bailiff and the grounds for refusing to initiate enforcement proceedings.
The bailiff is obliged to verify the existence of these grounds before initiating enforcement proceedings.
When resolving disputes over the legality of the initiation or the legality of the refusal to initiate enforcement proceedings, the following circumstances are subject to verification:
compliance of the executive document with the requirements of the legislation;
compliance with the deadline for presentation (with the calculation of the break time);
debtor's registration, residence, and work addresses;
the debtor's registered property;
the legal status of the debtor (the composition of the founders, the participation of the state).
In practice, bailiffs apply enforcement measures simultaneously with the initiation of enforcement proceedings.
Chapter 5 of the Law on Enforcement Proceedings provides for enforcement measures.
The basis for the application of enforcement measures is an enforcement document accepted by the bailiff for his proceedings.
Enforcement measures are divided into:
measures to ensure the execution of enforcement documents (article 32 of the Law on Enforcement Proceedings);
temporary restriction on the departure of an individual, the head (acting) of a legal entity that is a debtor, from the Republic of Kazakhstan (Article 33 of the Law on Enforcement Proceedings);
temporary restrictions on the issuance and validity of licenses, permits, and special rights (article 34 of the Law on Enforcement Proceedings).
Typical mistakes of bailiffs can be identified:
The disproportionality of the measures taken;
violation of deadlines for taking action;
late or illegal cancellation of the measures taken.
As a result, problematic issues and disputes arise both in case of disagreement with the application of enforcement measures, and if it is necessary to cancel these measures in cases of termination of enforcement proceedings.
For example, the debtor obtained the cancellation of enforcement measures in court. On May 26, 2021, the CSI initiated enforcement proceedings to recover debts from the LLP in favor of the LLC. On August 19, 2021, the enforcement document was returned at the request of the recoverer. However, the CSI did not cancel the enforcement measures taken (seizure of property, restriction of departure). The courts indicated that there were no grounds for maintaining the enforcement measures (6001-22-00-6ap/541).
Article 32 of the Law on Enforcement Proceedings provides for enforcement measures aimed at preserving the debtor's property, which may subsequently be used to fulfill the requirements of the enforcement document.
The procedure for lifting security measures is regulated by article 47 of the Law and paragraph 6 of article 48 of the Law.
The law provides for two types of termination of enforcement proceedings ‑ termination and return.
By virtue of paragraph 1 of Article 48 of the Law on Enforcement Proceedings, an enforcement document for which recovery has not been carried out or has not been carried out in full is returned to the recoverer by order of the bailiff in the following cases:
1) at the request of the claimant;
2) if the debtor has no property, including money, securities or income, which may be subject to foreclosure, and all measures taken by the bailiff to identify his property or income have proved ineffective, with the exception of the enforcement document on the confiscation of property.;
3) if, according to a non-property enforcement document, all measures provided for by law for execution have proved ineffective;
4) if the recoverer refused to retain the debtor's property, unsold during the execution of the enforcement document;
5) if the recoverer refused to deposit into the current account of a private bailiff, intended for storing the recovered amounts in favor of the recoverers, the advance amounts necessary to cover the costs of execution;
6) in the event of the debtor's departure (death of a citizen, reorganization of a legal entity, transfer of debt) at the time of execution of the enforcement document, the bailiff returns the enforcement document without execution to the recoverer with an explanation of his right to apply to the court with a request to establish a legal successor and replace the debtor, except for the cases provided for by this Law;
7) if, during the execution of the enforcement document, it turns out that the debtor has moved to a permanent place of residence outside the Republic of Kazakhstan, except in cases where the debtor's property is located in the Republic of Kazakhstan;
8) the existence of grounds for the recusal of a private bailiff specified in paragraph 1 of Article 54 of this Law.
The return of the enforcement document entails the termination of enforcement proceedings, therefore, there is no actual enforcement proceedings against the debtor.
However, the return of the enforcement document does not entail the unconditional cancellation of enforcement measures. When resolving this issue, it is necessary to strictly follow the requirements of articles 32, 33, and 48 of the Law on Enforcement Proceedings.
Article 33 of the Law on Enforcement Proceedings provides for the grounds for lifting the temporary travel restriction.
The temporary restriction on the departure of an individual, the head (acting) of a legal entity that is a debtor, from the Republic of Kazakhstan is lifted within one working day in the following cases::
1) termination of enforcement proceedings;
2) the absence of arrears in enforcement proceedings on periodic penalties;
3) the return of the enforcement document without execution at the request of the court or other authority that issued the document;
4) applications of the recoverer, with the exception of penalties in favor of the state;
5) the change of the head of the legal entity that is the debtor, except in cases where the head is the sole founder (participant) of the legal entity;
6) cancellation of the bailiff's decision to initiate enforcement proceedings.
In accordance with part 1 of Article 10 of the CPC, when exercising administrative discretion, the administrative body and the official ensure a fair balance of interests between the participant in the administrative procedure and the company. At the same time, an administrative act or an administrative action (inaction) must be proportionate, that is, appropriate, necessary and proportionate.
Article 31 of the Law on Enforcement Proceedings regulates the adoption of enforcement measures. This provision indicates that the basis for the application of coercive measures is a writ of execution. In the event of his absence from the proceedings, the debtor has the right to demand the cancellation of enforcement measures.
However, not in all cases, when the writ of execution is returned, the measures are subject to cancellation.
In accordance with paragraph 1-1 of Article 99 of the Law on Enforcement Proceedings, due to the specifics of the execution of enforcement documents on the recovery of alimony, the security measures taken are subject to cancellation only in the absence of arrears on alimony and other periodic payments.
A similar requirement for lifting the exit restriction is provided for in article 33 of the Law on Enforcement Proceedings, by virtue of which the temporary restriction on the departure of a natural person who is a debtor from the Republic of Kazakhstan is lifted within one working day in the following cases: there is no debt on enforcement proceedings for periodic penalties.
For example, the SCAD of the Armed Forces has abolished judicial acts of local courts in this part. By a court order with N. in favor of A. alimony has been collected for the maintenance of a minor child. On November 12, 2013, the ICG initiated enforcement proceedings. By the decision of the Civil Registry Office dated February 21, 2020, the enforcement document was returned to the claimant upon his application. At the same time, the debt as of the date of return of the executive document amounted to 7230364 tenge. Since the debt has not been repaid, there is an unfulfilled resolution on determining the debt, the defendant had no legal grounds for canceling the security measures, and therefore the defendant's actions to refuse to cancel these measures were recognized by the board as lawful (6001-22-00-6ap/551).
Thus, enforcement measures are subject to cancellation by enforcement proceedings for the recovery of alimony only in the absence of debt.
Bailiffs should fully verify the existence of grounds for lifting enforcement measures in enforcement proceedings of social importance (recovery of alimony, wages and other periodic payments).
ANALYSIS of the Supreme Court of the Republic of Kazakhstan on the judicial practice of considering administrative cases challenging decisions, actions (inaction) of bailiffs for the second half of 2021 and the first half of 2022.
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 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!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
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