On taking interim measures in civil cases
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated January 12, 2009 No. 2.
The footnote. Throughout the text, the numbers “159” are replaced by the numbers “156” in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
advertisement
In order to ensure a uniform understanding and application in judicial practice of legislative acts regulating the adoption of interim measures in civil cases, the plenary session of the Supreme Court of the Republic of Kazakhstan
Decides:
Interim measures in civil proceedings are understood to mean the measures provided for by the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) and other legislative acts of the Republic of Kazakhstan for the procedural suppression of possible actions of the defendant (debtor), which may make it difficult or impossible to enforce a judicial act.
The interim measures taken by the court should not lead the defendant, a legal entity or an individual entrepreneur, to bankruptcy, disruption of normal production activities, violation of the legitimate rights and interests of others, or contribute to raiding (illegal seizure of the defendant's property).
The footnote. Paragraph 1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
Measures to secure a claim in cases considered in arbitration proceedings are taken by the court at the location of the debtor or arbitration in compliance with all the provisions provided for in Chapter 15 of the CPC.
When considering an application for securing a claim, the court is obliged to check whether the arbitration has initiated a case on the claim of the person who filed the application for interim measures.
The footnote. Paragraph 2 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
Interim measures are being taken to ensure:
claims of a property or non-property nature (applications in cases of special claim proceedings provided for in Chapters 27, 28, 29, 30 of the CPC);
execution of court decisions;
execution of court rulings on the approval of settlement agreements;
compulsory execution of enforcement documents.
Interim measures are taken by the court in any case, only after the judge accepts the application for trial and initiates the case, but before issuing an enforcement document on the enforcement of a judicial act that has entered into legal force.
In cases stipulated by law, interim measures are also taken by the bailiff in enforcement proceedings to ensure the enforcement of enforcement documents, if interim measures have not been taken by the court.
The footnote. Paragraph 3 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of official publication); dated 03/31/2017 No. 2 (effective from the date of the first official publication).
The interim measures listed in the first part of Article 156 of the CPC are not exhaustive.
Taking into account the nature of the disputed legal relationship and in accordance with the legislative act regulating it, the court may take other interim measures if failure to do so may make it difficult or impossible to execute the decision.
International treaties ratified by the Republic of Kazakhstan may provide for interim measures other than legislative acts of the Republic of Kazakhstan. International treaties that did not provide for ratification as conditions for entry into force, concluded before the adoption of the Constitution of the Republic of Kazakhstan in 1995, are valid and retain priority over the legislation of the Republic, if such priority for these international treaties is directly provided for by the laws of the Republic regulating the relevant areas of legal relations (Resolution of the Constitutional Council of the Republic of Kazakhstan dated October 11, 2000 No. 18/2 "On the official interpretation of paragraph 3 of Article 4 of the Constitution of the Republic of Kazakhstan.
The court has the right to take several interim measures at the same time, if this will most effectively ensure the execution of the court's decision and the protection of the violated legitimate rights and interests of the plaintiff.
The footnote. Paragraph 4 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of its official publication).
In accordance with article 157 of the CPC, interim measures are taken by the court only on the basis of an application from the plaintiff (applicant) or his representative, or on the basis of an application from the plaintiff in a case pending arbitration.
An application for interim measures may be filed in any situation: during the preparation of a case for trial, at a court hearing, after the court has issued a judicial act, but before applying for compulsory execution in accordance with the procedure established by Article 241 of the CPC.
In accordance with Article 155 of the CPC, the plaintiff must indicate in the application specific arguments that failure to take interim measures may make it difficult or impossible to enforce the judicial act.
Upon applications for a court order, the measures provided for in Article 156 of the CPC to secure an application for a court order are not taken, since the court order is issued by the court in accordance with the indisputable requirements provided for in Article 135 of the CPC without initiating a civil case. However, at the request of the recoverer, the court, after the entry into force of the court order, but before it is issued to the recoverer in accordance with Article 143 of the CPC, has the right to take interim measures to enforce the court order.
Interim measures may not be taken on the initiative of the court.
The footnote. Paragraph 5 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
If there is an application by the plaintiff or his representative for interim measures, the court, in accordance with Article 157 of the CPC, issues a ruling on securing the claim or enforcing judicial acts, if the court had not previously taken interim measures in the case.
If the statement of claim is attached to the statement of claim or is indicated in the statement of claim, it is considered and resolved by the judge on the day of the ruling on the initiation of a civil case. In other cases, the application for securing the claim is resolved by the judge on the day it is received by the court.
An application for securing a claim filed during the preparation of a case for trial, an application for enforcement of a judicial act filed before the judicial act is applied for enforcement, is considered by a judge alone without notifying the persons involved in the case of the place and time of consideration of the application. In these cases, the protocol of a separate procedural action is not drawn up.
If an application for securing a claim is filed at a court hearing, it is immediately examined, after which the judge in the conference room issues a ruling on its satisfaction or rejection.
The footnote. Paragraph 6, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of official publication); dated 03/31/2017 No. 2 (effective from the date of the first official publication).
When considering an application for interim measures, the court should examine whether the content of the interim measure meets the substantive requirements stated by the plaintiff (applicant), whether it will ensure the suppression of possible actions of the defendant, which may be committed by him in order to make it difficult or impossible to execute a judicial act.
If the court concludes that the interim measure indicated by the plaintiff in the application does not comply with the stated substantive requirements, then such an application for securing the claim with the proposed interim measure is not subject to satisfaction.
The court's ruling on the refusal to take interim measures does not prevent the plaintiff or his representative from re-applying to the court for measures to secure the claim, indicating new arguments about the need to take such measures.
A court ruling issued based on the results of consideration of an application for interim measures must comply with the requirements specified in Article 269 of the CPC. In this case, the court must evaluate the applicant's arguments about the presence or absence of grounds for taking interim measures provided for in Article 155 of the CPC.
The difficulty or impossibility of executing a judicial act that has entered into legal force should be understood as such possible actions of the defendant that are aimed at concealing or alienating all or part of his property, preparing to leave the Republic of Kazakhstan, and so on.
The operative part of the ruling on the adoption of interim measures should indicate that it is subject to immediate enforcement.
The footnote. Paragraph 9 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
A motion may be filed by the prosecutor for a ruling on the issues of securing a claim in accordance with Article 429 of the CPC, or a private complaint may be filed by the persons whose interests it concerns, within ten working days from the day they became aware of this ruling.
The day when a person became aware of the interim measures taken should be understood as the day when he was given a copy of the ruling or became aware of the actions of the bailiff to execute the enforcement document (seizure of property, prohibition to perform certain actions, and so on).
With a private complaint (petition of the prosecutor) against the court ruling on the issues of securing the claim, the material extracted from the case concerning the adopted ruling is sent.
Filing a private complaint against a court ruling on the adoption of interim measures does not suspend its execution.
At the same time, an appeal or consideration of a prosecutor's motion against a court ruling on the cancellation of the claim security or a ruling on the replacement of one type of security by another suspends the execution of these rulings until a private complaint or petition by the prosecutor is considered.
The footnote. Paragraph 10, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of official publication); dated 03/31/2017 No. 2 (effective from the date of the first official publication); dated 04/15/2021 No. 1 (effective from the date of the first official publication).
The immediate enforcement of a court ruling on the adoption of interim measures should be understood as the commission by the court of the actions provided for in part three of Article 241 of the CPC on the day the ruling was issued or no later than the next business day after it was issued.
The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
With regard to subparagraph 1) of the first part of Article 156 of the CPC, the adoption of such an interim measure as the seizure of property belonging to the defendant is permitted in cases where the plaintiff has filed claims arising from contractual, tort or other property-related legal relations that must be satisfied at the expense of the debtor's property.
The property belonging to the defendant means the types of property listed in Article 115 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code) that the defendant owns and uses by right of ownership or right of economic management.
An interim measure such as the seizure of property, with the exception of money at the disposal of the named defendants, is not applied to a State body, a State-owned institution or a State-owned enterprise that owns and uses State property by right of operational management. In accordance with Articles 44 , 922 , 923 of the Civil Code, the named defendants are responsible for the damage caused with the money at their disposal. If the money at the disposal of these defendants is insufficient, the State treasury bears subsidiary responsibility for their obligations.
When considering a plaintiff's application for an interim measure such as the seizure of property, the court does not specify specific items or types of property and does not determine its value, which may be seized, even if the plaintiff in the application requests the seizure of specific items.
The court ruling should specify only the amount of the plaintiff's property claims or the amount of the plaintiff's property claims satisfied by the court decision, and the ownership of the property to the defendant (debtor) and its value shall be determined by the bailiff when executing the enforcement document in accordance with the procedure provided for by the legislative act on enforcement proceedings.
In cases of recovery of compensation for moral damage in monetary terms, such a measure to secure a claim as the seizure of property by the court cannot be taken, since the amount of such damage, in accordance with Article 952 of the Civil Code, is determined by the court when making a decision.
If there is an application by the plaintiff for securing such a claim, the court, simultaneously with or after issuing a decision that determines the amount of compensation for moral damage, issues a ruling on enforcement of the court decision. In this case, the amount of the debtor's property to be seized may not exceed the amount of compensation for moral damage recovered by the court from the defendant.
Provided for in subparagraph 2) In the first part of Article 156 of the CPC, an interim measure may be taken by a court in cases where a non-property claim filed by the plaintiff implies the need to ensure the safety of the subject matter of the dispute or the condition that existed before the case was considered. Among such actions, the commission of which may be prohibited to the defendant, should include a ban on the commission of actions to dispose of the subject of the dispute, to redevelop a dwelling, to change the boundaries of a land plot, to replicate an object of copyright and related rights, and others.
In accordance with subparagraph 3) of the first part of Article 156 of the CPC, the court has the right to prohibit other persons from transferring property to the defendant or fulfilling other property obligations with respect to him, through which the fulfillment of the debtor's obligations to the plaintiff can be ensured.
The said interim measure may be taken by the court only if there is reliable information about the obligations of third parties to the defendant in the case and a reasonable assumption that the defendant, having received execution from third parties, may make it difficult or impossible to execute the judicial act.
The court's ruling on the adoption of the said interim measure should specify which specific person is prohibited from transferring property or fulfilling other obligations to the defendant in the case. At the same time, the material and legal claims claimed by the plaintiff and the amount of the person's obligations to the defendant in the case must be taken into account so that the obligations of this person to the defendant in excess of the amount of the claims claimed by the plaintiff can be fulfilled in accordance with Article 272 of the Civil Code.
When filing, in accordance with Article 251 of the CPC, a claim for the release of property from seizure (exclusion from the inventory) at the request of the plaintiff, the court takes an interim measure provided for in subparagraph 4) part one of Article 156 of the CPC.
The specified interim measure is taken in relation to a specific property, on the release of which from arrest (exclusion from the inventory) a claim has been filed if the bailiff has not independently suspended the enforcement actions for the sale of this property.
If the debtor disputes the legality of the bailiff's actions to seize the property belonging to him during the execution of the enforcement document, without filing a claim for the release of the property from arrest, then such an application is considered in accordance with the procedure established by Chapter 29 of the CPC. In this case, the court has the right to adopt the following procedure provided for in subparagraph 2) In the first part of Article 156 of the CPC, an interim measure is intended to prohibit a bailiff from taking actions to sell seized property.
The footnote. Paragraph 17 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
The interim measure provided for in subparagraph 5) of the first part of Article 156 of the CPC is taken by the court only for the categories of cases listed in this norm, which are considered in accordance with the procedure established by Chapter 29 of the CPC.
In other categories of cases that are considered in accordance with the procedure provided for in Chapter 29 of the CPC, the court, if there is an application, has the right to take an interim measure provided for in subparagraph 2) part one of Article 156 of the CPC. The said interim measure may not be applied in cases considered in accordance with the procedure provided for in Chapter 30 of the CPC.
The footnote. Paragraph 18 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
The interim measure specified in subparagraph 6) of the first part of Article 156 of the CPC is taken by the court if the person challenges in court the enforcement document provided by the legislative act on enforcement proceedings.
In particular, executive documents include court orders, writ of execution, court decisions on administrative offences that have entered into force, court decisions on the enforcement of decisions of officials authorized to consider cases of administrative offences, and a prosecutor's decision on the enforcement of his requirements.
A court order as an enforcement document may be challenged in court if it is enforced in violation of the procedure and deadlines established by Articles 141, 142, 143 of the CPC.
A writ of execution as a writ of execution may be challenged in court if it does not comply with the requirements specified in part four of Article 241 of the CPC, but accepted by the bailiff for enforcement.
As an executive document, a judge's ruling on an administrative offense case, a judge's ruling on the enforcement of a ruling by an official authorized to consider cases of administrative offenses may be challenged in court if it is enforced in violation of the rules provided for in the legislative act on administrative offenses.
As an executive document, the prosecutor's decision on the compulsory execution of his demands may be appealed in accordance with the procedure and time limits established by Chapter 29 of the CPC.
The footnote. Paragraph 19 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
19-1. Regarding the interim measure provided for in subparagraph 7) of the first part of Article 156 of the CPC in the form of suspension of bidding for the extrajudicial sale of collateral, the courts should proceed from the fact that this measure of securing the claim may be applied by the court in the event of a dispute regarding the collateral that is the subject of extrajudicial sale.
At the same time, courts should keep in mind that such a measure of securing a claim is taken before the auction results are summed up.
The footnote. The regulatory resolution was supplemented by paragraph 19-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
19-2. The application of measures to secure a claim established by subparagraph 8) of the first part of Article 156 of the CPC is possible in the case of challenging the acts and actions of the bailiff related to foreclosure on property committed in enforcement proceedings.
The footnote. The regulatory resolution was supplemented by paragraph 19-2 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
In case of violation of the interim measures taken by the court provided for in subparagraphs 2) and 3) of the first part of Article 156 of the CPC, the persons responsible for this are administratively liable under Article 669 of the Code of the Republic of Kazakhstan on Administrative Offenses. According to the plaintiff's claim, these persons are obliged to compensate the damage caused to the plaintiff by the violation of interim measures.
The footnote. Paragraph 20 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 3 (effective from the date of its official publication).
In accordance with the first part of Article 159 of the CPC, the court has the right to replace the interim measure adopted in the case with another interim measure (for example, the seizure of property to prohibit the defendant from performing certain actions, and so on).
Such an application is considered by the court without holding a court session and without drawing up a protocol, however, the persons participating in the case are notified of the place and time of its consideration.
When considering the application, the plaintiff is obliged to provide the court with evidence that the interim measure previously adopted by the court does not meet the requirements of proportionality, and the interim measure proposed as a substitute meets the objectives specified in Article 155 of the CPC.
The footnote. Paragraph 21 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
In accordance with part four of Article 159 of the CPC, only upon the plaintiff's claims for debt collection in monetary terms, the defendant has the right, in return for the measures taken by the court to secure the claim provided for in subparagraphs 1), 2) and 3) of part one of Article 156 of the CPC, to deposit the amount of the territorial subdivision of the authorized body for organizational and logistical support of the courts., equal to the price of the claim.
The footnote. Paragraph 22 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
The court, satisfying the plaintiff's application for securing the claim, on the basis of Article 162 of the CPC, has the right to require the plaintiff to provide security for possible damages for the defendant from taking interim measures based on the interests of both parties, reasonableness and fairness.
If the plaintiff does not provide security for possible harm to the defendant from the adoption of interim measures, the court has the right to dismiss the plaintiff's application for interim measures.
Counter-collateral is not applied if there are no grounds for taking interim measures provided for in Article 155 of the CPC.
The footnote. Paragraph 23 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
According to the second part of Article 160 of the CPC, the interim measures taken by the court are valid until the full execution of the decision, which satisfied the claim (application).
In case of refusal of the claim, interim measures are retained until the decision enters into force, after which, at the request of the defendant or on the initiative of the court, a ruling on the cancellation of interim measures is issued.
The issue of lifting interim measures is considered by the court in a court session with the preparation of a protocol for its consideration and with the notification of the persons involved in the case.
The footnote. Paragraph 24 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication). 25. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication). 26. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 29, 2012 No. 6 (effective from the date of its official publication).
An appeal (appeal) in cassation against a judicial act, in accordance with which an enforcement document was issued, is not the basis for suspending the enforcement of an enforcement document, unless the judicial act is suspended by execution in accordance with the procedure provided for in Article 448 of the CPC.
The footnote. Paragraph 27 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
Invalidate it:
1) Paragraph 13 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 13, 2001 No. 21 "On the preparation of civil cases for trial";
2) paragraph 29 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 5 "On judicial decision".
According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, and is also generally binding and effective from the date of its official publication.
Chairman of the Supreme Court
Republic of Kazakhstan
K. Mamie
Judge of the Supreme Court
Republic of Kazakhstan,
Secretary of the plenary session
J. Baishev
© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases
