Lawyer for debt and penalty recovery on receipt and criminal prosecution with imprisonment and confiscation of property
The court of first instance committed a gross violation of the law on the form and content of transactions, which led to the creation of conditions for the removal of property liability (confiscation by court verdict of property) of the convicted person. Individual entrepreneur E. filed a claim for debt collection in the amount of 40,067,370 tenge and penalties in the amount of 13,520,187 tenge against his son, individual entrepreneur V. The claim was motivated by the fact that in the period from 2002 to 2009, V. money was transferred in the total amount of 40,067,370 tenge, including: 26,189,612 tenge with a repayment period of December 31, 2006, 1,346,758 tenge with a repayment period of March 10, 2007, 7,725,000 tenge with a repayment period of April 10, 2008 and 4,806,000 tenge with a repayment period of March 10, 2009 of the year. According to the verdict of the specialized interdistrict criminal court of Kostanay region dated October 24, 2011, V. was sentenced to imprisonment with confiscation of property, there was a danger of not returning the money. At the request of E. – V., he confirmed the receipt of the money by issuing a receipt for each amount. Since the money was not returned within the time stipulated by the receipts, a penalty should be collected from V. according to the calculations indicated in the statement of claim. By the decision of the specialized interdistrict economic court of Kostanay region dated March 16, 2012 with V. in favor of E. a debt in the amount of 40,067,370 tenge and a penalty in the amount of 13,520,187 tenge were collected. In the order of distribution of court costs from the convicted person in favor of E. 535,876 tenge of state duty and 500,000 tenge were collected to reimburse the costs of paying for the representative's assistance.
Lawyer for debt and penalty recovery on receipt and criminal prosecution with imprisonment and confiscation of property
In the protest, the Prosecutor General pointed out that during the consideration of the case, the court unilaterally investigated the circumstances of the case, allowed violations of the norms of substantive and procedural law. The court did not take into account that the loan agreement was concluded without complying with the requirements of Articles 152, 717 of the Civil Code and Articles 49, 193, 68.69 of the CPC. The supervisory judicial board overturned the decision of the specialized interdistrict economic court of Kostanay region. She made a new decision. In the lawsuit of E. V. She refused to collect a debt in the amount of 40,067,370 (forty million sixty-seven thousand three hundred and seventy) tenge, penalties in the amount of 13,520,187 (thirteen million five hundred twenty thousand one hundred and eighty-seven) tenge and court costs in the amount of 1,035,876 (one million thirty-five thousand eight hundred and seventy-six) tenge on the following grounds. It can be seen from the case file that by the verdict of the specialized interdistrict criminal court of Kostanay region dated October 24, 2011, V. was sentenced under paragraph "b" of part 3 of Article 177 of the Criminal Code to imprisonment with confiscation of property. The court's verdict lists the property on which the arrest was upheld. Attached to the statement of claim are receipts from without a date, which indicates the amounts of money received from E. with the deadline for their return and the accrual of the penalty. An extract from the draft (operational records) is also attached. for monetary settlements with other persons, but which do not show the existence of loan transactions between the parties for the amounts indicated in the statement of claim. At the court hearing of the supervisory instance court, E. explained that the receipts were written by V. in 2010. When considering the case, the court proceeded from the provisions of Articles 716 and 717 of the Civil Code. However, the provisions of these norms of the law were not observed by the court. A loan agreement for money in excess of one hundred monthly calculation indices must be made in writing, indicating the date of its conclusion. Such an agreement is considered concluded from the moment the money is transferred. Failure to comply with the legally prescribed form of the contract and its content indicates the nullity of the transaction. When considering the case, the court did not take into account that the statement of claim was filed in order to preserve part of the property of convicted V., which is subject to confiscation by the court verdict that has entered into force. The court's reference to the recognition of V.'s claim It was not subject to acceptance, since such recognition of the claim is directed against the interests of the State in the execution of the court's verdict regarding the confiscation of the convicted person's property.
During the consideration of the case by the court of first instance, a gross violation of the norms of the law on the form and content of transactions was committed, which entailed the creation of conditions for the withdrawal from property liability (confiscation by court verdict of property) of convicted V. The arguments contained in the explanations of E. and G. that the Prosecutor General missed the deadline set by part 1 of Article 388 of the CPC for bringing a protest were not accepted into consideration. It can be seen from the case file that the court's decision of March 16, 2012 entered into force on May 14, 2012. According to Part 2 of Article 124 of the CPC, the duration of the procedural action begins on the day following the calendar date that determines its beginning. The beginning of the term for bringing a protest will be calculated from May 15, 2012. Parts 1, 2 and 3 of Article 125 of the CPC establish that the procedural term expires in the corresponding month and day of the last year of the term, and the procedural action may be performed up to twenty–four hours of the last day of the term, and if it is performed in court, then before the termination of the court according to its working regime.
The protest was submitted to the Supreme Court on May 15, 2013, on the last day of the one-year term for the procedural action. In such circumstances, the prosecutor does not need to restore the time limit for making a protest. Since the examination of the case does not require an investigation of new circumstances, and the court of first instance misinterpreted and applied the applicable law, the decision of the court of first instance is subject to cancellation with the issuance of a new decision to dismiss the claim.
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