Recognition as illegal and cancellation of the resolution on the initiation of enforcement proceedings and on the determination of debt
The judicial act has been upheld.
No.6001-22-00-6ap/2205 dated 04/04/2023
Plaintiff: L.V.
Defendant: CHSI S.K., CHSI K.E.
Interested person: L.Y.
The subject of the dispute: on the recognition as illegal and the cancellation of the decision on the initiation of enforcement proceedings and on the determination of debt
Review of the cassation appeal filed by the plaintiff's representative.
PLOT:
By a court order of the Baikonur district court of the city of Nur-Sultan dated 11/22/2019, alimony payments for the maintenance of minor children in the amount of 1/3 of earnings and (or) other income were collected from L.V. in favor of L.Y. monthly.
On 25.11.2019, CHSI K.E. was initiated by the Sole proprietor for the execution of the court order.
On 08/15/2020, the IP was terminated at the request of the recoverer due to the recoverer's refusal to collect.
By the resolution of the CHSI S.K. dated 11/09/2021, the IP was initiated, on 06/05/2022, the alimony debt was determined by the resolution, the amount of which since 11/22/2019 amounted to 3,909,891 tenge.
Judicial acts:
1st instance: the claim is satisfied with the decision.
Appeal: the decision was changed, it was decided to cancel in terms of recognition as illegal and cancellation of the decision to initiate enforcement proceedings and collect state fees. In this part, a new decision was made to dismiss the claim.
The rest of the court's decision remains unchanged.
Cassation: the decision is upheld.
Conclusions: The Court of First Instance: the decision to initiate enforcement proceedings was made in violation of the norms of substantive law, since the IP had previously been terminated, while the actions of the ICI were not recognized as illegal and the decision to terminate was not canceled. The Court of Appeal did not agree with the court's conclusions regarding the initiation of IP.
It was established that on 08/15/2020, the recoverer L.Yu. applied to the CSI with a statement on termination of the IP, in connection with the conclusion of an agreement on dispute settlement through mediation and repayment of debts, in full.
However, there was no mediation agreement between the parties, and the debtor's alimony debt has not been repaid. In court, representatives of the parties confirmed the absence of any agreements, documents (receipts, payment orders) confirming the repayment of the debt were not provided.
These circumstances indicate that the bailiff had no grounds for termination of the IP.
Evidence of proper and timely payment of alimony on the part of L.V. was not presented to the court, it follows from the IP examined that L.V. was paid from March 2021 to May 2022 only 143,000 tenge.
The Court of Appeal legitimately referred to paragraph 3-7 of Article 8 of the Civil Code of the Republic of Kazakhstan. The judicial Board agreed with the conclusions of the court of appeal that the plaintiff's actions show signs of dishonesty, which significantly violate and restrict the rights of minor children, since they are deprived of the right to receive maintenance from their parents, and the alimony due to them is not paid.
Based on the principles of reasonableness and fairness, the court of appeal legitimately found it necessary to refuse to protect the plaintiff's rights in challenging the decision to institute an IP.
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