Initiation of enforcement proceedings by bailiffs
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) by presenting an 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 the specified norm, in order to calculate the time limit for submission for execution, it is necessary to establish all periods of time off 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 period of 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 executive document for execution is incorrectly calculated. For example, by a court decision of November 25, 2014, the dispute over the division of property between the spouses was resolved.
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 a corrected 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).
In order to avoid errors in calculating the time limits for submitting an enforcement document for execution, the NP SC "On the Application by Courts of Certain Norms of Legislation on Enforcement proceedings" should clarify the procedure for calculating the time limits under Article 11 of the Law on Enforcement Proceedings.
The bailiff is also obliged 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 on the standing 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 requirements 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 enforcement inscription.
The term is calculated from the day following the issuance of the enforcement 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);
the debtor's registration, residence, and work addresses; whether the debtor has registered property; and the debtor's legal status (founders, government involvement).
In practice, judicial officers 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.
The 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 issues 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 an enforcement document of a non-proprietary nature, all the enforcement measures provided for by law have proved ineffective;
4) if the recoverer refused to retain the debtor's property, which was not sold 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 a legal entity that is a 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 of 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 the lifting of exit restrictions is provided for in article 33 of the Law on Enforcement Proceedings, by virtue of which the lifting of temporary restrictions on the departure of a natural person who is a debtor from the Republic of Kazakhstan is carried out 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 under enforcement proceedings for the recovery of alimony only in the absence of arrears.
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).
Jurisdiction of lawsuits to administrative courts
In accordance with article 127 of the Law on Enforcement Proceedings, the decision and action (inaction) of the bailiff to execute the enforcement document or the refusal to commit such actions may be appealed by the recoverer or the debtor to the court.
The complaint is filed with the court in accordance with the procedure established by the legislation of the Republic of Kazakhstan on administrative proceedings.
Based on the content of this rule, only the parties to the enforcement proceedings have the right to appeal against the actions of the bailiff.
However, in practice, disputes often arise with bailiffs from persons who are not parties to enforcement proceedings.
Paragraph 2 of the NP of the Supreme Court "On the application by courts of certain norms of legislation on enforcement proceedings" provides for the right of interested parties to challenge the actions of the Civil Protection Service.
By virtue of part 1 of Article 9 of the CPC, everyone has the right, in accordance with the procedure established by this Code, to apply to an administrative body, to an official or to a court for protection of violated or disputed rights, freedoms or legitimate interests.
This provision provides for the right to judicial protection if there is an interest.
When receiving claims from persons who are not parties to the enforcement proceedings, the courts should check whether there is another way to protect and restore the disputed right and whether there are significant legal consequences for the plaintiff from the actions committed.
For example, JSC is a recoverer of enforcement proceedings for the recovery of debts from LLP in the amount of 220,989,149 tenge, court costs.
The LLP is also a debtor in enforcement proceedings for the recovery of wage arrears in favor of individuals for a total amount of KZT 17,569,000.
The actions of the CSI in the framework of the collection of wage arrears were appealed by JSC, which has the right to file a claim challenging the defendant's actions, which give rise to legal consequences for him, since the sold property was built under the terms of the Investment Agreement and was the subject of a pledge on the basis of the Pledge Agreement.
The claims were considered on the merits by the courts, and the claim was partially satisfied (6001-22-00 6ap/607).
In order to exclude different interpretations of the provisions of the Law on Enforcement Proceedings, the NP SC "On the application by Courts of Certain Provisions of the Law on Enforcement Proceedings" should specify the conditions under which an interested person has the right to appeal against the actions (inaction) of bailiffs in court.
The plaintiff must prove his material or legal interest in appealing the actions (inaction) of the bailiffs.
However, in the absence of a real legal interest and the existence of another way of protection, the claims of such persons are subject to refund.
For example, the claim of a person who is not the mortgagee of the sold property has been returned (6001-22-00-6ap/394).
Collection of state duty
Plaintiffs on claims to appeal the actions (inaction) of bailiffs from paying the state fee when filing a claim with the court are exempt in accordance with subparagraph 15) of Article 616 of the Code of the Republic of Kazakhstan "On Taxes and other mandatory payments to the budget."
In accordance with Part 1 of Article 122 of the CPC, issues related to the allocation of court costs are considered according to the rules of the CPC.
By virtue of part 1 of Article 117 of the CPC, the state fee from which the plaintiff was exempt, as well as the costs associated with the proceedings, are collected from the defendant, who is not exempt from paying court costs, to the state's income in full or in proportion to the satisfied part of the claim.
Upon satisfaction of the claim, the state fee to the local budget revenue is subject to collection from the bailiff in proportion to the satisfied part of the claim.
The state duty rate is calculated according to the rules of subparagraph 8) of paragraph 1 of Article 610 of the Code of the Republic of Kazakhstan "On Taxes and other mandatory payments to the budget" (0.5 MCI).
Suspension of enforcement proceedings
In accordance with subparagraph 13) of article 42 of the Law on Enforcement Proceedings, enforcement proceedings are subject to suspension within one working day in cases where enforcement proceedings are requested by the court.
In practice, courts in their rulings on actions in an incoming administrative case indicate the demand for enforcement proceedings.
After receiving the materials of the enforcement proceedings, the courts do not return the materials of the enforcement proceedings until the case is considered on its merits or until the court decision enters into force.
This practice entails a prolonged suspension of enforcement proceedings, violation of the rights of the claimant, and does not always meet the goals and objectives of administrative proceedings. In order to exclude violations and respect the rights of the parties to enforcement proceedings, the following sequence should be followed:
- the claim of the materials of the enforcement proceedings by a ruling on the actions of the court in the received administrative case;
- receipt from the bailiff of the originals of the enforcement proceedings on paper or electronic media;
- attaching the materials necessary for dispute resolution to the materials of the administrative case;
- the return of enforcement proceedings when necessary.
Based on the subject matter of the administrative claim, the defendant should refrain from executive actions within the contested stage.
Thus, if there is a court ruling by which the court has demanded from the bailiff the materials of the enforcement proceedings, it is necessary for the bailiff to issue a resolution suspending the enforcement proceedings until the official return of the materials by the court.
In order to form a uniform practice on this procedural issue, it is necessary to clarify in the NP of the Supreme Court "On the application by courts of certain norms of legislation on enforcement proceedings."
The time limit for appealing a court decision
Part 4 of Article 168 of the CPC stipulates that an appeal, a petition from the prosecutor for administrative cases challenging the actions (inaction) of bailiffs may be filed within ten working days from the date of the decision.
The date of the judgment is considered to be the date of the announcement of the judicial act.
When explaining a court decision, courts should indicate to the parties the specifics of the appeal period.
In order to ensure guarantees for the speedy resolution of disputes and the exclusion of abuse of law by debtors, provide for the entry into force of the court decision from the date of the announcement of the decision of the appellate instance.
The deadline for filing a claim (the practice of restoring deadlines)
Part 4 of Article 136 of the CPC provides that claims against the actions (inaction) of the bailiff for the execution of enforcement documents are filed with the court within ten working days from the date of the action (refusal to perform the action) or from the day when the recoverer or debtor, who was not notified of the time and place of the action by the bailiff, became aware of It is known about him.
The establishment of such a deadline is conditioned by the need to ensure the continuity of enforcement proceedings and cannot be considered as violating the right to judicial protection.
In practice, there are cases when the actions of bailiffs are appealed by debtors in order to delay the terms of enforcement proceedings, with reasons stating that the party was not informed of the materials of the enforcement proceedings in a timely manner, and therefore, claims are filed in violation of the established deadlines for applying to the court.
When considering this category of disputes, special attention should be paid to studying the materials of enforcement proceedings and to establish the methods and dates for notifying the parties to the enforcement proceedings of the actions taken.
By virtue of part 7 of Article 134 of the CPC, the time limit for filing a claim that has been missed for a valid reason may be restored by the court according to the rules of the CPC.
The reasons for missing the deadline for filing a claim in court and their significance for the proper resolution of an administrative case are clarified by the court in a preliminary hearing.
In accordance with paragraph 2 of Article 126 of the CPC, the time limits established by law may be restored by the court if they are missed for a reason recognized by the court as valid.
At the same time, the validity of missing the deadline must be confirmed by acceptable and relevant evidence.
The analysis showed that the courts return claims when the reasons for missing the deadline are not objective and do not indicate the existence of any facts that would prevent the timely appeal of the plaintiff to the court.
For example, enforcement proceedings on foreclosure on property were in the proceedings of the CSI.
Electronic auctions were held on January 4, 2019, the results of which were appealed by the debtor.
In returning the claim, the courts indicated that acceptable and reliable evidence of the validity of the reasons for missing the deadline for appealing the actions of the judicial officer had not been provided.
The plaintiff's arguments that the time limit for appealing electronic bidding is three years are untenable, since this dispute arises from the actions of the bailiff in executing enforcement documents (6001-22 00-6ap/726).
Another example is also related to the lack of evidence, the validity of the reasons for the start of the deadline. The plaintiff was acquainted with the materials of the enforcement proceedings on February 8, 2021, as indicated in the receipt.
However, he did not apply to the court within the prescribed 10-day period.
In the petition for the restoration of the deadline for applying to the court, as a valid reason for his omission, it is indicated that the plaintiff became aware of the actual recovery of the amount owed on September 29, 2021.
In October and November 2021, due to illness, he was unable to prepare a lawsuit in court.
The court assessed the documents provided (a certificate from a therapist), stating that they did not confirm the validity of the reasons for missing the deadline (No. 6001-22-00-6ap/398).
Claim refund
Part 2 of Article 138 of the CPC provides 17 grounds for the return of an administrative claim.
Cases in this category are most often returned for the following reasons:
subclause 6) of part 2 of Article 138 of the APPC - the plaintiff withdrew the filed claim;
9) of part 2 of Article 138 of the CPC - the parties have concluded an agreement on reconciliation, mediation or dispute settlement through a participatory procedure, and it has been approved by the court;
11) of part 2 of Article 138 of the CPC - the case is not subject to consideration in administrative proceedings;
17) of part 2 of Article 138 of the CPC - the case is beyond the jurisdiction of this court.
Also, the reason for the return of the claim is provided by part 8 of Article 136 of the CPC, according to which skipping the deadline for filing a lawsuit without a valid reason, as well as the inability to restore the missed deadline for filing a lawsuit, are grounds for returning the claim.
The courts do not have any difficulties in resolving the issue of the return of claims in the analyzed category.
At the same time, the implementation of the principle of the active role of the court has significantly increased the number of cases resolved peacefully (concluding an agreement or withdrawing a claim).
Regulatory legal acts
The main regulatory legal acts regulating the issues of enforcement proceedings are:
The Constitution of the Republic of Kazakhstan;
APPC;
GK; GPK;
The Law on Enforcement Proceedings;
The Law of the Republic of Kazakhstan "On Evaluation activities in the Republic of Kazakhstan";
NP of the Supreme Court of March 31, 2017 No. 1 "On the application by Courts of certain norms of legislation on enforcement proceedings";
NP of the Supreme Court of December 19, 2003 No. 12 "On liability for non-enforcement of judicial acts";
Rules approved by the Order of the Minister of Justice of the Republic of Kazakhstan dated February 20, 2015 No. 100;
Resolution of the Government of the Republic of Kazakhstan dated May 4, 2014 No. 437 "On approval of the amount of payment for the activities of a private bailiff".
In accordance with paragraph 3 of Article 76 of the Constitution of the Republic of Kazakhstan, judicial acts that have entered into legal 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 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, the purpose of which is to protect the rights and interests of the parties to the enforcement proceedings.
Abbreviations used
APPC – Administrative Procedural Code of the Republic of Kazakhstan;
CPC – Civil Procedure Code of the Republic of Kazakhstan;
Civil Code of the Republic of Kazakhstan;
The Law of the Republic of Kazakhstan "On Enforcement Proceedings and the status of Bailiffs" – The Law on Enforcement Proceedings;
NP VS – Normative Resolution of the Supreme Court of the Republic of Kazakhstan;
Rules for the sale of seized property, including at auction in the form of an electronic auction – Rules;
AIAS – Automated information and analytical system of judicial authorities of the Republic of Kazakhstan "Torelik";
SCAD VS – Judicial Board for Administrative cases of the Supreme Court of the Republic of Kazakhstan; SCAD or collegium – judicial board for administrative cases;
SMAS – specialized interdistrict Administrative Court;
DU – Department(s) of Justice;
GSI – State bailiff(s);
CSI – Private bailiff(s);
CGO – central government agency;
MIO – local executive bodies.
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