Issues related to securing a claim (Chapter 15).

Subparagraph 4) of Part 1 of Article 156 of the CPC has been amended. Now, challenging the results of the assessment of the debtor's property does not entail the application of such a measure to secure the claim as the suspension of the sale of property.

The court has been granted the right to consider an application for a replacement of a measure to secure a claim without summoning the persons involved in the case, or to schedule a court hearing. However, the persons involved in the case are immediately notified of the receipt of the application and have the right to submit a review to the court (part 2 of Article 159 of the CPC).

Article 160 of the CPC on the cancellation of a measure to secure a claim has been supplemented by Part 2-1, according to which, in cases of termination of proceedings, abandonment of the statement of claim without consideration, as well as the return of the statement of claim, the measures taken to secure the claim remain in effect until the court ruling enters into force.

The novelties are aimed at additional protection of the rights of claimants and additional simplification of the work of the courts. Now, upon termination of the case or abandonment of the claim without consideration, the judge does not have to issue a separate ruling on the cancellation of interim measures, and the participants in the process are relieved of the obligation to file a separate petition for the cancellation of interim measures.

The facts of non-compliance by the courts with the new rule on the immediate notification of the plaintiff of the defendant's application for the replacement of security measures have been established.

For example, in a civil case involving the claim of Aktobe International Airport JSC against IP Molbaev R.Ya. for recovery of the amount and termination of the contract, interim measures were taken at the request of the plaintiff in the form of seizure of the defendant's property and funds within the amount of the claim.

After the court decision was rendered, an application was received from the defendant, IP Molbaev R.Ya., to replace one measure of securing the claim with another.

By a court ruling dated December 15, 2020, the application was denied. At the same time, the court failed to comply with the requirements for immediate notification of the plaintiff of the defendant's application for replacement of security measures. At the same time, applying the amendments to the law, the application for the replacement of measures to secure the claim was considered by the court without notifying the parties.

The courts of the Karaganda region apply the simplified process of lifting interim measures in different ways.

Thus, by a ruling of the Temirtau City Court of the Karaganda region dated October 20, 2020, proceedings in a civil case were terminated on the claim of First Heartland Jordan Bank JSC against R.S. Isaeva for debt collection under a bank loan agreement and foreclosure on property, in view of the acceptance of the waiver of the claim.

In the operative part of the ruling, the court indicated that the interim measure – the seizure of property belonging to R.S. Isaeva, imposed on the basis of the court ruling of September 22, 2020, should be canceled upon the entry into force of the ruling.

Also, the Saransk City Court, while ignoring the claim of Maltseva T.I. to Gurzhos Yu.A. for recognition of ownership of property, indicated that upon the entry into force of the court ruling, measures to secure the claim in the form of a ban on the defendant to alienate Gazelle cars should be canceled (ruling dated 09/23/2020).

           At the same time, the Shakhty City Court of the Karaganda region, in a ruling dated October 12, 2020, leaving the claim of O.R. Pyatenko to I.I. Pyatenko on the division of property without consideration, canceled the enforcement of the claim in the form of seizure of the car with a ban on its alienation.

At the same time, the courts note a conflict between the provisions of part 2-1 of Article 160 with part 3 of Article 278, part 1 of Article 280 of the CPC, since the provisions of the law governing the consequences of termination of proceedings and leaving the statement of claim without consideration oblige the court to cancel the measures taken to secure the claim.

In this regard, the courts of the city of Nur-Sultan, for the purposes of uniform interpretation, consider it necessary to clarify in the NP of the Supreme Court of January 12, 2009 "On the adoption of interim measures in civil cases" the question of whether a ruling on this is required or whether it is necessary to indicate this in the rulings without consideration, since according to Article 280 of the CPC, the court in the ruling indicates the cancellation of the security measure only in cases where the claim is not considered on the grounds provided for in paragraphs 1), 2) and 5). Article 279 of the CPC.

Other proposals are to supplement Part 2-1 of Article 160 of the CPC with the sentence "making a separate ruling on the cancellation of security measures in these cases is not required."

The Almaty City Court proposes that Part 2-1 be worded as follows: "in cases of termination of proceedings, abandonment of the statement of claim without consideration, as well as the return of the statement of claim, the measures taken to secure the claim remain in effect until the court ruling enters into force. The cancellation of measures to secure the claim is indicated in the court ruling,"in connection with which there will be no need to issue separate rulings on the cancellation of measures to secure the claim.

The West Kazakhstan Regional Court raised the question of who is canceling the enforcement of the claim – the mediator judge who secured the claim, while mediation did not take place, or the judge who reviewed the dispute on its merits.

In practice, if a petition for the application of interim measures is attached to the statement of claim, the mediator judge issues rulings on the initiation of a civil case, the adoption of interim measures, and the preparation of the case for trial and the suspension of proceedings (in cases of claim proceedings). The parties are then notified of the date and time of the mediation.

If a mediation agreement is reached, it draws up an agreement and issues a ruling on its approval.

The court's ruling notes the fate of the interim measure - whether it is canceled after the court's ruling on the approval of the mediation agreement enters into force, or remains in force.

For example, according to the claim of Chernova N. V. to Fofonova L.L. for the allocation of a share in the inheritance property, the mediator judge of the court No. 2 of the city of Uralsk, upon receipt of the claim (with an application for securing the claim), accepted the claim on January 22, 2021, initiating a civil case. At the same time, a ruling was issued on securing the claim, and the case was suspended by the proceedings.

On February 4, 2021, the parties reached an agreement on the settlement of the dispute through mediation, and decided to jointly sell the inherited property with the distribution of the proceeds in proportion to the inherited shares. The parties also settled the issue of securing the claim.

In the court's ruling on the approval of this agreement  The court pointed to the cancellation of the interim measures prohibiting the defendant from making any transactions on the alienation and pledge of a share in the inherited property, since the presence of these measures would prevent the parties from fulfilling the mediation agreement.

At the same time, in case of failure to reach an agreement on the settlement of the dispute through mediation, the case is redistributed, goes to the judge, who resumes the proceedings and continues its consideration on the merits.

 

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