On recovery (postponement, installment plan) of the enforcement sanction

         The main task of the enforcement sanction as an additional responsibility is not only to replenish the state budget at the expense of unscrupulous debtors, but also to encourage the latter to execute the judicial act voluntarily, in order to avoid additional legal costs, which contributes to the effective protection of the rights of claimants, simplifying the activities of enforcement authorities, improving the efficiency of enforcement proceedings and the authority of the judiciary as a whole.

             According to article 124 of the Law "On Enforcement Proceedings and the Status of Bailiffs", the state bailiff, after the full execution of the enforcement document, offers the debtor to voluntarily pay the enforcement sanction to the state's income from the recovered amount or the value of the property.

In the event of the debtor's refusal, the State bailiff shall recover the enforcement sanction on the basis of the issued resolution on the recovery of the enforcement sanction from the debtor. An enforcement sanction is not levied if:

1) the debtor executed the enforcement document in full before submitting the enforcement document for enforcement;

2) the enforcement sanction, which is subject to collection in the amount of ten percent of the amount collected under the enforcement document, is less than one monthly calculation index; 3) the debtor is the state.

The executive sanction is transferred to the republican budget. The debtor has the right to apply to the court with a statement challenging the bailiff's decision on the recovery of the enforcement sanction, with a claim for postponement or installment of its recovery, for reduction of its size or exemption from the recovery of the enforcement sanction.

The regulatory resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of legislation on enforcement proceedings by courts" states that Article 124 of the Law provides for the possibility of collecting enforcement sanctions from the debtor.

Such a penalty is possible if the state bailiff, after the full execution of the enforcement document, offered the debtor to voluntarily pay the enforcement sanction to the state revenue.  from the recovered amount or the value of the property if the debtor refused to commit these actions. An enforcement sanction is an independent type of property liability of a debtor who has not voluntarily executed an enforcement document.

Full enforcement should be understood as the execution of a writ of execution in full during the period when it is in the custody of a bailiff, with the exception of the time limit provided by the bailiff to the debtor for voluntary execution, in accordance with article 37 of the Law.

Based on this, the actions of the bailiff to take measures to ensure the execution of the enforcement document specified in article 32 of the Law, as well as the measures taken to sell the described and seized property, to foreclose on the debtor's wages and other income, on property held by other persons, should be considered as enforcement measures.

The recovery of an enforcement sanction from the debtor is carried out on the basis of a decree of the bailiff, which is an enforcement document and can be appealed to the court.

Challenging the decision on the recovery of an enforcement sanction

The applicant, Ivrus LLP, filed a complaint with the court against the state bailiff of the Department of Justice of the Aktobe region, A., and the private bailiff, K., challenging and canceling the bailiffs' decisions to recover the enforcement sanction and to approve the amount of payment for the activities of the private bailiff. The partnership motivated its demands by the fact that on October 21, 2016, the bailiff of the city department for the recovery of amounts from individuals of the Department of Justice A. A resolution was issued to recover from Ivrus LLP an enforcement sanction in the amount of 1,268,620 tenge to the revenue of the republican budget.

On October 21, 2016, private bailiff K. issued a resolution approving the amount of payment for the activities of a private bailiff in the amount of 76,117 tenge. The partnership does not agree with these resolutions, since the court decision was executed voluntarily, without the participation of bailiffs. Asked to cancel the resolutions .

The Aktobe City Court's decision of November 24, 2016 dismissed the complaint. By the decision of the judicial Board for Civil Cases of the Aktobe Regional Court dated January 18, 2017, the court's decision remained unchanged. In refusing to satisfy the claims, the courts proceeded from the following.

By the decision of the Council of Ministers of the Aktobe region dated June 23, 2016, the claim of the Russian State Institution "Akmola Regional Territorial Inspectorate of Forestry and Wildlife" was partially satisfied, 12,686,200 tenge was recovered from IVRUS LLP to the state revenue, and a state duty of 380,586 tenge was collected from the local budget.

In compliance with the requirements of art.241 of the Civil Procedure Code of the Aktobe region, on September 7, 2016, an enforcement document was issued to recover KZT 12,686,200 from IVRUS LLP to the state revenue and sent to the Department of Justice for execution on the same day.

On the basis of the executive document, on September 14, 2016, State bailiff B. initiated enforcement proceedings to recover KZT 12,686,200 from IVRUS LLP to the state revenue.

A representative of Ivrus LLP applied to the economic court for the provision of details for transferring the amount to the state's income by court decision only on September 15, 2016, that is, after the court had issued and sent enforcement documents for execution, as well as after the state bailiff had initiated enforcement proceedings and taken measures to ensure the enforcement document.

The courts established that the court's decision of June 23, 2016 on the recovery of KZT 12,686,200 to the state revenue was executed by the debtor on October 11, 2016, that is, after the initiation of enforcement proceedings and enforcement actions in the form of measures to secure the claim.

Bailiff A. On October 21, 2016, issued a resolution to recover from IVRUS LLP an enforcement sanction in the amount of 1,268,620 tenge to the revenue of the republican budget.

Under such circumstances, the board agreed with the conclusions of the court of first instance on the lack of voluntary execution of the court's decision by the debtor and the legality of the actions of the state bailiff to issue a resolution dated October 21, 2016 on the recovery of enforcement sanctions from IVRUS LLP to the national budget in the amount of 1,268,620 tenge.

A case in which a court considered an application for an installment payment of an enforcement sanction in violation of the requirements of art.124 of the Law "On Enforcement Proceedings and the Status of Bailiffs."

According to Part 3 of Article 124 of the Law "On Enforcement Proceedings and the Status of Bailiffs", the debtor has the right to apply to the court to challenge the bailiff's decision to recover the enforcement sanction, with a claim for postponement or installment of its recovery, for reducing its size or exemption from the enforcement sanction.

It follows from the meaning of this provision that the issue of reducing the amount of the enforcement sanction or exemption from its collection, as well as issues of postponement or installment of its collection, should be considered in the claim proceedings, at the request of the debtor, with the involvement of a bailiff as a defendant.

Meanwhile, the application for postponement of the repayment of the enforcement sanction was considered by the court in accordance with the procedure of the APPC and the CPC, that is, as an application for postponement of the execution of the court decision, without initiating legal proceedings and summoning the defendant.

So, the applicant V. applied to the court for an installment payment of the enforcement sanction in the amount of 236,050 tenge. It follows from the content of the application that as part of the enforcement proceedings to recover from V. in favor of V. compensation for a share in the common property in the amount of 2360,500 tenge, enforcement proceedings were initiated to recover from V. the amount of the enforcement sanction in the amount of 236,050 tenge.

The applicant requests to delay the execution according to the enforcement sanction, indicating that in order to execute the court's decision to recover from her in favor of V. She had to take out two loans from banks and a debt from friends. The first spouse died at work, the second spouse, the father of the second child, divorced her. He does not provide financial assistance.

Requests to provide her with the opportunity to repay the enforcement sanction for 10,000 tenge. The court, taking into account V.'s difficult financial situation, by a ruling of the Temirtau City Court of the Karaganda region dated October 03, 2016, in accordance with Articles 40,124 of the Law "On Enforcement Proceedings and the Status of Bailiffs" and the terms of the CPC, delayed the execution of the enforcement sanction for 23 months with a monthly payment of 10,000 tenge.

Thus, the application for an installment payment of the enforcement sanction was considered in violation of Article 124 of the Law "On Enforcement Proceedings and the Status of Bailiffs."

An enforcement sanction is an independent type of property liability of a debtor who has not voluntarily executed an enforcement document.

Article 124 of the Law provides for the recovery of an enforcement sanction from the debtor, except in cases provided for by Law. The enforcement sanction is subject to recovery on the basis of the decision of the bailiff.

It is collected if the state bailiff, after the full enforcement of the enforcement document, offered the debtor to voluntarily pay the enforcement sanction to the state's income, and the debtor refused to commit these actions.

An enforcement sanction is an independent type of property liability of a debtor who has not voluntarily executed an enforcement document.

Article 124 of the Law provides for the recovery of an enforcement sanction from the debtor, except in cases provided for by Law. The enforcement sanction is subject to recovery on the basis of the decision of the bailiff.

It is collected if the state bailiff, after the full enforcement of the enforcement document, offered the debtor to voluntarily pay the enforcement sanction to the state's income, and the debtor refused to commit these actions.

In this case, it is not necessary to apply to the court with a claim for the recovery of an enforcement sanction, since by virtue of subparagraph 8) of paragraph 1 of Article 9 of the Law, the bailiff's decision on the recovery of an enforcement sanction is an enforcement document.

In accordance with paragraph 3 of Article 124 of the Law, the amount of the enforcement sanction may be reduced at the request of the debtor, and the debtor may also be released from its collection.

The grounds for granting a deferral or an installment plan for the execution of an enforcement sanction may be circumstances that cannot be eliminated at the time of applying to the court, preventing the debtor from executing the enforcement sanction within the prescribed period.

When resolving the issue of granting a deferral (installment plan) of an enforcement sanction, the courts should proceed from the debtor's property status and other circumstances that deserve the attention of the parties.

Since the application of public liability measures against individuals in the form of enforcement sanctions is of an individual, personalized nature, the decision to enforce enforcement sanctions is not subject to execution by the legal successor of the debtor-citizen.

Since the court is not bound by the grounds and arguments for challenging the bailiff's decision, it has the right to establish circumstances indicating the need to reduce the amount of the enforcement sanction and release the debtor from its collection on the basis of evidence examined at the court session, even if the parties did not refer to these circumstances.

The reduction by the court of the amount of the enforcement sanction does not entail the recognition of the bailiff's decision to recover the enforcement sanction as illegal.

The main regulatory legal acts regulating issues in the consideration of cases in this category are

The Civil Procedure Code of the Republic of Kazakhstan,

The Law of the Republic of Kazakhstan "On Enforcement proceedings and the Status of Bailiffs",

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of application by courts of the law on enforcement proceedings" No. 2 dated June 20, 2005.

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