On the application of legislation by courts when considering cases of challenging executive orders

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated May 26, 2022 No. 6.

     In order to ensure the unity of judicial practice in the application by courts of legislation regulating the issues of making executive inscriptions by notaries, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to provide the following clarifications.

The legislation on these legal relations is based on the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution) and 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 July 14, 1997 No. 155–I "On Notaries" (hereinafter referred to as the Law on Notaries), the Law of the Republic of Kazakhstan dated April 2, 2010 No. 261-IV "On Enforcement proceedings and the status of Bailiffs" (hereinafter – The Law on Enforcement Proceedings), the Rules for performing notarial acts by Notaries, approved by the Order of the Minister of Justice of the Republic of Kazakhstan dated January 31, 2012 No. 31 (hereinafter referred to as the Rules) and other regulatory legal acts.

An executive inscription is a notary's order to recover from the debtor a certain amount of money owed to the recoverer or to claim other movable property. An executive inscription, by virtue of subparagraph 15-1) of paragraph 1 of Article 34 of the Law on Notaries, is one of the types of notarial acts performed by notaries.

The subject of judicial review of complaints in a special procedure provided for in Chapter 45 of the CPC is to verify the correctness of the execution of the executive inscription or the legality of the refusal to commit it.

      The incorrectness of a notarial act should be understood as its non-compliance with the requirements of the Law on Notaries and other regulations governing the notary's activities.

     Examples of such violations include the commission of an executive order:

      upon request not provided for by paragraph 2 of Article 92-1 of the Law on Notaries;

     under an obligation based on a written transaction, the deadline for which has not arrived;

     without the claimant providing the documents stipulated by the Rules confirming the indisputability of the claim.;

     upon expiration of the limitation period as of the date of the enforcement inscription.

     An unlawful refusal to make an executive inscription should be understood as a refusal on grounds not provided for by the Law on Notaries.

      The court's decision in cases of this category must meet the general requirements stipulated in Chapter 19 of the CPC.

     If the complaint is satisfied, the reasoning part of the decision sets out the grounds for revoking the executive inscription, the regulations violated by the notary when making the executive inscription or when refusing to make it.

     In the operative part of the decision, when satisfying a complaint against a notarial act, the court indicates information about the notary, the name, number and date of issue of the executive inscription to be cancelled. When satisfying a complaint about a refusal to make an executive inscription, the court's conclusion that the refusal to make an executive inscription is illegal, as well as information about the notary and the executive inscription that he must make.

According to the second part of Article 366 of the CPC, if, when filing a complaint or when considering a case, a dispute about a right based on a notarial act is established between the interested parties, the court issues a ruling on leaving the application without consideration, in which it clarifies to the applicant and other interested parties their right to resolve the dispute through a lawsuit.

     If, at the time of the execution of the executive inscription, there was a legal dispute between the recoverer and the debtor, the transaction was declared invalid by the court, the debt was partially or completely repaid by the debtor, or there are other circumstances indicating the existence of a dispute about the law, such a dispute is subject to consideration in the claim proceedings. The subject of consideration will be the debtor's claim to the recoverer for recognition of the executive inscription, which is not subject to execution in full or in part.

     In this case, the notary may be involved in the case as a third party who does not make independent claims on the subject of the dispute.

     The claims of other persons who believe that the executive inscription violates their rights, interests, or unlawfully imposes any obligation are subject to consideration in the claim proceedings. The case is subject to consideration with the participation of the defendants: the recoverer and the debtor, the notary is involved in the case as a third party who does not make independent claims on the subject of the dispute.

      The prosecutor has the right to apply to the court in the order of special or claim proceedings in defense of the interests of the state and the persons listed in the third part of Article 54 of the CPC.

     In case of satisfaction of the claim, in the operative part of the decision, the court indicates information about the notary, the name, number and date of issue of the executive inscription, which is not subject to execution in full or in part.

     If, at the time of filing a complaint against a notarial act or a claim for recognition of an executive inscription that is not subject to execution, enforcement proceedings have been initiated, the applicant (plaintiff) has the right to apply to the court with a request for measures to secure the claim - to suspend the recovery of the executive inscription.

A complaint against a notarial act or a refusal to perform it is filed with the court at the notary's location.

     The notary's location is the notary's registration address.

      A notary is not an official of a state body whose actions can be appealed according to the rules of the Administrative Procedural Code of the Republic of Kazakhstan. Consequently, cases of appeal of notarial acts are considered in the order of civil proceedings.

     A notary does not carry out individual business activities without forming a legal entity, therefore, cases of complaints from legal entities and individuals engaged in individual business activities without forming a legal entity are not subject to the jurisdiction of specialized interdistrict economic courts.

     A dispute about a right that has arisen as a result of the commission of an executive inscription between the debtor and the recoverer, as well as a claim by a third party whose rights and legitimate interests are violated as a result of the commission of an executive inscription, are considered according to the general rules of jurisdiction.

     If the notary who executed the executive inscription has ceased his activity, the complaint is filed with the court at the last location of this notary, involving a representative of the notary chamber as an interested person in the case.

Cases of complaints against notarial acts or refusal to perform them in accordance with subparagraph 14) of the first part of Article 302 of the CPC relate to cases considered by the court in a special procedure.

      In accordance with subparagraph 8) of paragraph 1 of Article 610 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget (Tax Code)", a state fee is charged in the amount of 0.5 monthly calculation index (hereinafter - MCI) from applications (complaints) submitted to the court in cases of special proceedings.

      The claim of a debtor or a third party for recognition of an executive inscription that is not enforceable is a non-property claim, upon filing a claim for which a state fee is charged in accordance with subparagraph 7) of paragraph 1 of Article 610 of the Tax Code in the amount of 0.5 MCI.

In accordance with the fourth part of Article 364 of the CPC, the complaint is filed with the court within ten days, calculated from the day when the applicant became aware of the notarial act performed or the refusal to perform the notarial act.

      Courts should keep in mind that different time categories are used in the CPC: working day, non-working day, ten-day period. The absence of clarification in the fourth part of Article 364 of the CPC on the calculation in working days, the indication of a ten-day period indicates that it is calculated in calendar days.

     Missing a ten-day period is not a reason for the court to refuse to accept the complaint or to return it.

     When verifying the applicant's compliance with the specified deadline, the courts need to find out the date of the notarial act or refusal to commit it, the date when the applicant became aware of the notarial act and the reasons why the applicant missed the deadline for appealing to the court.

     The issue of the applicant's compliance with the deadline for applying to the court should be discussed regardless of whether interested parties refer to this circumstance, while the court explains to the applicant his right to file a petition for the restoration of the missed deadline.

     If the court finds that the applicant missed the deadline for valid reasons, it is obliged to restore it at the request of the applicant, as indicated in the reasoning part of the decision.

     If, without valid reasons, the deadline for the debtor to bring an objection to the writ of execution or the deadline for applying to the court is missed, the court decides to dismiss the complaint without examining other factual circumstances of the case. Such a decision may be made by a judge, including when preparing a case for trial.

     An appeal to the court against the execution of an executive inscription is possible only after the notary's refusal to cancel it. The ten-day period for applying to the court in this case is calculated from the date of receipt by the debtor of the notary's refusal to cancel the executive inscription.

     Unless otherwise provided by law, the general statute of limitations applies to claims filed in the course of claim proceedings.

An appeal to the court against the execution of an executive inscription is possible only after the notary's refusal to cancel it. The ten-day period for applying to the court in this case is calculated from the date of receipt by the debtor of the notary's refusal to cancel the executive inscription.

     Unless otherwise provided by law, the general statute of limitations applies to claims filed in the course of claim proceedings.

According to paragraph 2 of Article 92-8 of the Law on Notaries, if the decree of the notary has not cancelled the executed inscription on the debtor's objection, its challenge is carried out in court.

      It follows from the above provision that before filing a complaint with the court against the commission of an executive inscription, the debtor must appeal to the notary with an objection. In case of failure to provide evidence of such an appeal, the judge returns the complaint on the basis of subparagraph 1) of the first part of Article 152 of the CPC, or leaves it without consideration on the basis of subparagraph 1) of Article 279 of the CPC.

     If, at the time of the debtor's filing of an objection to the claim filed by the recoverer or a judicial appeal against the executive inscription, the private notary has ceased notarial activity, then the possibility of observing the procedure for pre-trial settlement of the dispute has been lost. In this case, the debtor's appeal to the notary with an objection is not required. The debtor has the right to appeal the executive inscription to the court, indicating in the complaint the reason for the impossibility of filing an objection to the notary.

An executive inscription can be executed if two conditions are met in aggregate: the submitted documents confirm the indisputability of the debtor's debt or other liability to the recoverer and no more than three years have passed since the date of the right to claim (application). For a claim for which a different statute of limitations has been established, an executive inscription is issued within this period.

The list of indisputable claims for which collection is carried out on the basis of an executive inscription is contained in paragraph 2 of Article 92-1 of the Law on Notaries.

      The list of documents to be submitted for the execution of the executive inscription is given in paragraph 223 of the Rules.

If more than three years have passed since the date on which the recoverer's right to file a claim arose (or another statutory limitation period), the execution of the executive inscription must be refused, since the notary is not authorized to establish the fact of suspension and interruption of the limitation period or its restoration.

In order to execute an executive inscription on a request for the fulfillment of an obligation based on a written transaction, the due date of which has come (subparagraph 2) of paragraph 2 of Article 92-1 of the Law on Notaries), the recoverer must submit to the notary a written confession of the debtor's failure to fulfill the obligation.

      A written confession may be expressed in one or more of the documents listed in subparagraph 2) of paragraph 223 of the Rules. The documents must indicate whether the debtor has a debt at the time of the execution of the executive inscription, its amount and the debtor's recognition of the amount to be recovered.

     The Law on Notaries, regarding the provision of a written recognition of the debtor's failure to fulfill an obligation, does not contain exceptions for claims based on bank loan agreements and microcredit agreements. In this regard, according to such requirements, the recoverer is obliged to submit to the notary the debtor's confession of non-fulfillment of the obligation, expressed in writing.

At the time of the execution of the executive inscription, upon request for the fulfillment of an obligation based on a written transaction, the deadline for the fulfillment of the obligation must come.

      The courts should take into account that the recoverer's claim based on paragraph 3 of Article 722 of the Civil Code on the lender's right to early repayment of the entire remaining part of the loan item in the event of a violation by the borrower of the deadline set for repayment of the next part of the loan item does not apply to the requirements for which an executive order may be executed, since at the time of its commission there was no the deadline for fulfilling the obligation in full has arrived. Such a requirement cannot be considered indisputable.

By virtue of Article 298 of the Civil Code, a penalty is levied for non-fulfillment or improper fulfillment of an obligation if there are conditions for holding the debtor accountable for violating the obligation. In turn, according to Article 359 of the Civil Code, the debtor is responsible for non-fulfillment and (or) improper fulfillment of obligations in the presence of guilt, unless otherwise provided by law or contract.

      It follows from the content of paragraph 3 of Article 92-1 of the Law on Notaries that a prerequisite for the recovery of a penalty on an executive inscription is the debtor's admission of guilt in non-fulfillment of an obligation and the notary's confirmation of the fact of admission of guilt in an unfulfilled obligation.

     The fact of admission of guilt in an unfulfilled obligation is confirmed by a notary on the basis of the debtor's written response to the claimant's claim. The debtor's response to the recoverer's claim must contain information about the contract, the date of its conclusion, the amount of debt or other movable property to be claimed, the amount of the accrued penalty (penalty, fine) for the period specified in the claim, and the absence of circumstances precluding the debtor's liability for non-fulfillment of the obligation.

     The amount of the penalty to be collected under the executive inscription must not exceed the maximum amount established by legislative acts.

In order to make an executive inscription on all other requirements, except for those specified in subparagraph 2) of paragraph 2 of Article 92-1 of the Law on Notaries, it is not required to submit to the notary a written recognition by the debtor of non-fulfillment of the obligation. In order to collect rent payments due to their non-payment within the time limits set by the lease agreement, the recoverer must submit to the notary a document confirming the fact of sending a claim to the debtor.

The notary, no later than the next business day after the execution of the executive inscription, hands over or sends a copy of it to the debtor at the e-mail address or at the known place of residence (location) or registration of the debtor using means of communication that ensure the recording of delivery.

     A copy of the executive inscription is considered to have been sent properly if the notification is returned with a note stating that it cannot be delivered to the recipient of the postal correspondence or in connection with the debtor's refusal to accept it.

The debtor has the right, within ten working days from the date of receipt of a copy of the executive inscription, to send objections to the stated claim in writing with notification to the notary who executed the executive inscription. The courts should distinguish the time limit for the debtor to file objections to the executive inscription from the time limit for filing a complaint with the court against the commission of the executive inscription, including the different order of their calculation.

     The objection must contain the reasons for disagreement with the stated requirement.

     Upon receipt, within the time limit prescribed by law, of the debtor's objection containing the reasons for disagreement with the claimant's claim, the notary issues a resolution to cancel the executive inscription no later than three working days from the date of receipt of the objection.

      If the debtor's objection does not specify the reasons for disagreement with the claim filed by the recoverer or it is filed in violation of the deadline, the notary refuses to cancel the executive inscription due to non-compliance with the requirements of the Law on Notaries provided for in paragraph 3 of Article 92-6 and the lack of authority of the notary to restore the deadline for the debtor to file an objection.

     In this case, a decision to refuse to revoke the executive inscription is not made, the notary informs the debtor of the decision by letter, in which he indicates the reasons for the decision and explains to the debtor his right to challenge the executive inscription in court, indicating the time limit for filing a complaint or claim.

     The notary has the right to issue an executive inscription for presentation for execution upon receipt of a notification of the delivery of a copy of the executive inscription to the debtor and the absence of the debtor's objection, or after returning the notification to the notary with a note stating that it is impossible to deliver mail to the addressee, including in connection with the debtor's refusal to accept it.

In accordance with Chapter 45 of the CPC, complaints about notarial acts, the list of which is exhaustive and provided for in Article 34 of the Law on Notaries, as well as the refusal to commit them, are subject to special proceedings.

     A notary's act includes making an executive inscription by a notary. Subsequent actions of the notary, such as consideration of the debtor's objection to the claims made by the recoverer and the notary's refusal to cancel the executive inscription, are not independent notarial actions and are not subject to judicial appeal.

      According to paragraph 2 of Article 92-8 of the Law on Notaries, the decision to revoke the executive inscription is not subject to challenge.

      Consequently, the appeal against the notary's refusal to cancel the executive inscription, as well as against the notary's decision to cancel the executive inscription, should be refused with reference to subparagraph 1) of the first part of Article 151 of the CPC. The proceedings initiated on such a complaint are subject to termination with reference to subparagraph 1) of Article 277 of the CPC, including at the stage of preparing the case for trial.

In the case of debt collection under the executive inscription, which was subsequently cancelled, the debtor has the right to apply to the court with a claim against the recoverer for the return of the debt collected under the executive inscription (unjustified enrichment). Such a claim may be filed simultaneously with a claim for recognition of an executive inscription that is not enforceable, or by filing a separate claim.

In accordance with the third part of Article 174 of the CPC, a petition for dispute settlement using conciliation procedures may be filed in any case of claim proceedings, unless otherwise provided by the CPC or the law.

Consideration of a complaint against a notarial act or refusal to perform it is subject to consideration in a special procedure, and therefore dispute settlement using conciliation procedures is not allowed.

     If the case is being considered as a claim (legal dispute), reconciliation of the parties is possible by concluding a settlement agreement, an agreement on dispute settlement through mediation or a participatory procedure.

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 date of the first official publication.

     Chairman of the Supreme Court

Republic of Kazakhstan

J. Asanov

     Judge of the Supreme Court  

Republic of Kazakhstan,  

Secretary of the plenary session

G. Almagambetova

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