On the application by the courts of certain norms of the law on enforcement proceedings

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated March 31, 2017 No. 1.

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   In order to ensure the correct application of legislation on enforcement proceedings and the formation of uniform judicial practice, the plenary session of the Supreme Court of the Republic of Kazakhstan

     Decides:

The legislation on enforcement proceedings is based on the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution), consists of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), and the Law of the Republic of Kazakhstan dated April 2, 2010 No. 261–IV "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law), the norms of international treaties ratified by the Republic of Kazakhstan, and other regulatory legal acts of the Republic of Kazakhstan.

According to the Law, the jurisdiction of the bailiff does not apply to persons who do not participate in enforcement proceedings. However, in accordance with paragraph 2 of Article 13 of the Constitution, Articles 250, 251 of the CPC and 127 of the Law, the actions (inaction) of the bailiff to execute enforcement documents or the refusal to commit such actions may be appealed in court, taking into account the specifics provided for in Articles 250, 251 of the CPC, both by the parties to the enforcement proceedings and persons who believe that their rights and legitimate interests have been violated, obstacles have been created to the exercise of their rights and legitimate interests, or they have been charged with any duty.

     A complaint against the actions (inaction) of the bailiff (hereinafter referred to as the complaint) of the recoverer and the debtor is considered in accordance with the procedure provided for in the first part of Article 250 of the CPC.

     If the execution of the decision affects the property interests of third parties, these persons have the right to apply to the court with a claim to the debtor and the recoverer for restoration of the violated right in accordance with Article 251 of the CPC. At the same time, if the plaintiff has not involved a bailiff in the case, then the court must do this on its own initiative. In this case, the bailiff acts as a third party who does not make independent claims on the subject of the dispute.

     Within the meaning of the first part of Article 250 of the CPC, it follows that a complaint against the actions (inaction) of the state bailiff is filed with the district (city) court of the territorial area served by the bailiff.

    A complaint against the actions (inaction) of a private bailiff is filed with the district (city) court at the place of registration of the private bailiff.

    If there are several courts of general jurisdiction on the territory of a locality, the complaint is filed at the place where the enforcement actions were performed.

When deciding whether to accept a complaint signed by a representative, the court must verify his authority. The powers of the representative to perform each of the procedural actions specified in paragraph 2 of Article 19 of the Law must be specifically provided for in the power of attorney issued by the representative.

When deciding whether to take a complaint into proceedings, the court must check whether the party has complied with the deadline provided for in the first part of Article 250 of the CPC.

    The party who applied to the court is obliged to provide evidence of when it became aware of the action (inaction) or refusal to perform the action committed by the bailiff.

     It follows from the meaning of the first and second parts of Article 124 of the CPC that the right to perform a procedural action is extinguished upon the expiration of the procedural period established by law.

     Therefore, if the recoverer or debtor has filed a complaint after the expiration of the period established by the first part of Article 250 of the CPC, and there is no request to restore the missed deadline, the complaint is not accepted into court proceedings and returned to the applicant by court ruling in accordance with Article 124 of the CPC.

     The return of the complaint does not prevent a second appeal to the court with an application for reinstatement of the missed deadline attached to the complaint.

     The restoration of the missed deadline is decided by the court at the stage of accepting the complaint in accordance with the second part of Article 126 of the CPC.

When considering a complaint, in order to comply with the time limit set by the second part of Article 250 of the CPC, the court should take measures to properly and promptly notify the participants in the enforcement proceedings of the place and time of the court session.

    In the absence of a state bailiff (dismissal, vacation, prolonged, over 10 days, disability or business trip, etc.), another bailiff of the same territorial department may be sent to the court session.

    Territorial divisions of the authorized body in the regions, cities of Astana and Almaty (hereinafter referred to as territorial bodies) may act as defendants in claims for damages and losses caused as a result of illegal actions (inaction) of state bailiffs, or when claims for recovery of court costs are filed.

    When appealing against his actions (inaction), a private bailiff is a party to civil proceedings, therefore, he is subject to the rights and obligations of persons involved in the case, including the right to conduct a case in court through a representative.

    When considering a complaint, the court has the right to demand the materials of the enforcement proceedings, which, after their examination, are returned to the bailiff, and their copies are attached to the case file.

When considering a complaint in accordance with Article 250 of the CPC or a claim for the protection of property interests of third parties in the process of executing enforcement documents in accordance with Article 251 of the CPC, it should be borne in mind that:

    foreclosure under enforcement documents applies primarily to the debtor's money, including those held by banks and organizations engaged in certain types of banking operations, from third parties, unless otherwise specified in the enforcement document, with the exception of monetary amounts that cannot be levied.;

    if the debtor does not have enough money to repay the debt, foreclosure is levied on other property of the debtor.

When appealing against the actions (inaction) of the bailiff on the illegality of foreclosure on property other than money belonging to the debtor, the court verifies which actions in the framework of enforcement proceedings were performed by the bailiff, whether they comply with the requirements of the Law.

     For the purposes of judicial control aimed at protecting the right of private property, foreclosure on immovable property is carried out in accordance with Article 246 of the CPC. In such cases, the requirements of paragraph 8 of Article 55 of the Law do not apply.

     When deciding whether to foreclose on property, the court must proceed from the rules of the order of sale of property provided for in Article 72 of the Law, find out the ownership of the property to the debtor, its actual value and the encumbrances on it, as well as assess the proportionality of the value of the property to the amount of the remaining debt, the duration of the enforcement document for execution and other circumstances worthy of attention.

    In the court's ruling, which changed the method and procedure for executing the decision by foreclosing on the debtor's property, it is necessary to indicate the identification characteristics of the property. At the same time, the court does not determine the initial selling value of the property, since such a right belongs to the bailiff at the stage of execution (article 68 of the Law).

In accordance with the requirements of article 60 of the Law, foreclosure on the debtor's share in the common property is provided for by dividing the common property, determining the share or allocating the share in court at the request of the bailiff or at the claim of the recoverer.

    When foreclosing on the debtor's debts on property that is common joint property, the bailiff or a party to the enforcement proceedings must apply to the court with a request to determine the debtor's share, if the shares are not determined in accordance with the procedure established by law. Based on the results of the review, the court issues a ruling on the establishment of the debtor's share in the specific property that is being foreclosed on.

     The issue of allocating a share or dividing shared property is resolved in accordance with Articles 216, 218 and 222 of the Civil Code.

If the debtor's other property is insufficient to fully satisfy all claims made against him, the bailiff has the right:

    to foreclose on the debtor's property held as collateral by third parties (when the pledgor and the debtor coincide in one person), while respecting the rights of the pledgee to pre-empt satisfaction of his claim from the value of the pledged property;

     to foreclose on the debtor's property, which is limited in its disposal, by decision of the authorized body in accordance with Article 120 of the Code of the Republic of Kazakhstan "On Taxes and other mandatory payments to the budget (Tax Code)" with a written notification to the authorized body.

    The footnote. Paragraph 9 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 7 (effective from the date of the first official publication).

The issue of foreclosure on property that is collateral for the obligation of a mortgage housing loan, as well as on the subject of collateral belonging to a third party (the real surety), is subject to consideration by the court in a separate lawsuit on the claim of the mortgagee for foreclosure on the mortgaged property in accordance with the requirements of Article 21 of the Law of the Republic of Kazakhstan dated December 23, 1995. No. 2723 "On mortgage of real estate".

The decision on the appointment of an appraiser and the transfer of the debtor's property to auction are the prerogative of the bailiff, which is provided for in articles 68, 74 of the Law.

In accordance with Article 257 of the Civil Code, upon termination of ownership, property is assessed based on its market value in accordance with the procedure established by law. Therefore, the bailiff is obliged to take the necessary measures to ensure that the debtor's property is assessed and tendered at market value. In the event of a dispute related to the valuation of the debtor's property, the measures taken by the bailiff are subject to verification in accordance with part six of Article 250 of the CPC.

If there is a court decision that has entered into force on foreclosure on mortgaged property, in which the court has determined its initial selling value, a re-assessment is not required as part of the execution of this court decision. In receiving such complaints (applications) in accordance with subparagraph 2) The first part of Article 151 of the CPC should be rejected.

The parties to the enforcement proceedings challenge the results of the bidding in court by appealing the action (inaction) of the bailiff in accordance with the procedure provided for in the first part of Article 250 of the CPC.

     In order to restore the rights, freedoms and legitimate interests of the parties to the enforcement proceedings in a timely manner, the bailiff, by virtue of the first part of Article 250 of the CPC, must bring the results of the auction to the attention of the recoverer and the debtor, and explain the procedure for appealing them.

    If a party to the enforcement proceedings has appealed to the court against the actions of the bailiff to challenge the auction, the bailiff must refrain from concluding the purchase agreement, the party simultaneously with filing the complaint has the right to raise before the court the issue of taking measures to secure the claim (for example, a ban on concluding the purchase agreement until the complaint is resolved on the merits and others).

     The protocol on the results of the electronic auction is the basis for concluding a contract for the purchase and sale of the debtor's seized property, therefore, by virtue of subparagraph 7) of Article 7 of the Civil Code, along with appealing the actions (inaction) of the bailiff, the protocol is also subject to appeal.

     In accordance with the second part of Article 15 of the CPC, the parties independently and independently of the court, other bodies and persons choose their position, ways and means of defending it during civil proceedings.

    In this regard, the purchase and sale agreement concluded between the bailiff and the buyer based on the results of the auction may be challenged by way of a claim.

When considering disputes about the actions of the bailiff to challenge the auction, the complaint is subject to satisfaction if the court finds that the results of the auction influenced or led to a violation of the rights and legitimate interests of the debtor or the recoverer.

In the event of the claimant's departure from enforcement proceedings initiated on the basis of an enforcement document issued by the court (reorganization of a legal entity, assignment of a claim, transfer of debt), as well as in other cases of a change of persons in legal relations, the issue of succession is subject to resolution by the court in accordance with Article 53 of the CPC.

Article 104 of the Law provides for the collection of penalties to the State's income for failure by the debtor to comply with the requirements of the bailiff within the prescribed period to commit actions that can only be committed by himself, or to refrain from committing them.

    A court may satisfy a claim for the recovery of a fine to the State's income only if the bailiff has previously notified the debtor of the commission of such actions, in which a time limit must be set, or notified of the need to refrain from committing them, and only if the debtor fails to comply with the bailiff's requirements.

     In this case, the penalty to the state's income can be collected both before and after the execution of the enforcement document by the debtor, while its amount is not subject to reduction by the court, since it is collected to the budget, therefore the courts do not have the right to apply Article 297 of the Civil Code in such cases.

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. 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 measures of full enforcement.

    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.

When considering a complaint against the actions of a private bailiff related to the payment of his activities, the courts must strictly comply with the provisions of the Decree 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".

On the grounds provided for in Article 238 of the CPC, the execution of a judicial act may be postponed, delayed in installments, or the method and procedure for its execution may be changed if the judicial act is not enforced in accordance with the procedure provided for in Articles 143 or 241 of the CPC.

According to the grounds provided for in Article 246 of the CPC, a postponement, an installment plan, or a change in the method and procedure for executing a judicial act may be granted if enforcement proceedings have been initiated by the bailiff and the grounds provided for in this provision of the law exist by the time the bailiff performs the enforcement actions.

Postponement of the execution of a judicial act means a procedural court decision to postpone to a later date the date on which the judicial act was applied for enforcement or the date on which the bailiff began performing enforcement actions in the initiated enforcement proceedings.

    An installment plan for the execution of a judicial act means a procedural court decision on the execution of a judicial act in parts within the time limit set by the court by the debtor voluntarily, or forcibly by the bailiff in enforcement proceedings, if the subject of execution is a divisible thing (for example, money, work performed, etc.).

    Changing the method and procedure for executing a decision means replacing the method and procedure specified in the court decision with another method and procedure that protects the legitimate rights and interests of the claimant, if there are circumstances that make it difficult or impossible to perform enforcement actions.

When granting deferred or installment execution, courts should proceed from a balance of the rights and legitimate interests of the recoverer and the debtor so that the established procedure for executing a court decision meets the requirements of reasonableness, fairness and does not affect the essence of the guaranteed rights of persons involved in enforcement proceedings, as well as the rights and legitimate interests of third parties.

     The postponement of the application of a judicial act for enforcement may not exceed the time limits established by article 11 of the Law.

     Postponement of execution of executive actions may not exceed the time limits established by paragraphs 1 and 2 of Article 39 of the Law.

    A delay in the execution of a judicial act that has recovered property damage from a minor between the ages of fourteen and eighteen may be granted until the defendant reaches the age of majority if the minor does not have property or income during this period.

The debtor's property status as a basis for granting him a deferral or installment payment means that the debtor cannot voluntarily or forcibly fulfill the obligation in full at one time by selling his property provided for in Articles 20 and 44 of the Civil Code.

    The grounds for granting a deferral or an installment plan for the execution of an enforcement document may be circumstances that cannot be eliminated at the time of applying to the court, preventing the debtor from executing the enforcement document. Whether there are such grounds is up to the court to decide on a case-by-case basis, taking into account all relevant factual circumstances. These may include the debtor's difficult financial situation, as well as reasons that significantly impede execution (for example, the debtor's serious illness, destruction or significant damage (through no fault of the debtor) to his real estate, etc.). The court must assess the possibility of executing the court's decision after the expiration of the deferral period or installment periods. Therefore, the court must be provided with evidence confirming that by the time of the end of the deferred execution or installment periods of execution, the debtor will have property and income sufficient to execute the judicial act.

A procedural decision on the payment of enforcement actions in installments may be made in accordance with Article 246 of the CPC if the parties to the enforcement proceedings provide evidence that the divisible obligation cannot be fulfilled at the expense of the debtor's property in a lump sum.

Installment payment of obligations in the form of periodic payments (alimony, compensation for injury to health, lost earnings due to the death of the breadwinner) is not allowed, since the impossibility of fulfilling such obligations is considered in a different manner established by legislative acts (calculation of alimony arrears, reduction of the amount of reimbursable damage, bankruptcy, and others).

The court's ruling on granting a deferral must specify the calendar date before which the deferral was granted.

    The court's ruling on the provision of installments should specify during which calendar period and in what specific parts the debtor must fulfill the obligation.

    The court's ruling on changing the method and procedure for the execution of a judicial act must specify in what other way and in what order the judicial act is to be executed.

If the circumstances by virtue of which the person was granted a deferral or an installment plan have changed or disappeared before the expiration of the period provided, or the debtor violates the established procedure for granting a deferral or an installment plan (deadlines, amounts of payments, volume of actions performed), the court, upon application by the parties in the enforcement proceedings, may decide whether to terminate the deferral or an installment plan for the execution of the judicial the act.

    The court's consideration of an application for termination of a deferral or an installment plan is carried out in the same manner as when it was submitted.

If the debtor does not have property that can be foreclosed on, a deferral or installment plan for the execution of enforcement actions in accordance with Article 246 of the CPC is not provided, and the enforcement document is returned to the recoverer on the basis of subparagraph 2) of paragraph 1 of Article 48 of the Law.

In the cases provided for in Articles 243 and 244 of the CPC, postponement of the application of a court decision for execution or the commission of enforcement actions is not allowed.

     In cases provided for in Chapters 29 and 30 of the CPC, the execution of a court decision may not be delayed or delayed in installments, and the method and procedure of execution established by the court decision may not be changed.

A change in the method and procedure of execution of a court decision is allowed if the court is provided with evidence that it cannot be executed in the manner and procedure specified in the court decision.

Invalidate them:

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

     2) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 29, 2009 No. 6 "On certain issues of enforcement of judicial acts in civil cases";

     3) paragraphs 11 and 19 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 30, 2011 No. 5 "On Amendments and Additions to Certain regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan";

     4) Paragraph 12 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 29, 2012 No. 6 "On Amendments and additions to certain regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan";

     5) paragraphs 3 and 7 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 3 "On Amendments and additions to certain regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan".

According to article 4 of the Constitution, this normative resolution is included in the current law, is generally binding and comes into force from the day of the first official publication.

    Chairman of the Supreme Court of the Republic of Kazakhstan

K. MAMIE

    Judge of the Supreme Court of the Republic of Kazakhstan, Secretary of the plenary session

K. SHAUKHAROV

© 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  

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