Recognition of the actions of the bailiff in enforcement proceedings as illegal
The plaintiff K. The defendant, the bailiff of the territorial Department of bailiffs of the city of Arys T. (hereinafter referred to as T.), The interested party – the company, applied to the court with a statement of claim on the recognition of the actions of the bailiff as illegal. K. he appealed to the court with the above complaint, which was justified by the fact that during the investigation of the criminal case initiated against him, he was forced to write an application under the pressure of the investigator to terminate 4 enforcement cases on the recovery of borrowed money from the company, and when he applied to the bailiff for acceptance of writ of execution after the entry into force of the court verdict in the criminal case, he illegally refused to accept them. The appeal was satisfied by the decision of the arys District Court of April 5, 2018. Decisions of June 15, 2016 on termination of enforcement proceedings and decisions of March 13, 2018 on refusal to initiate them are declared illegal. It is obliged to initiate enforcement proceedings on the basis of judicial acts. By the decision of the Judicial Board of the South Kazakhstan regional court for civil cases dated June 5, 2018, the decision of the court of first instance was left unchanged. The submission raises the question of revising the disputed judicial acts at the request of the company in connection with a significant violation of the norms of material law and a violation of the sequence in the interpretation and application of the norms of law. The court of Cassation, having heard the explanations of the parties to the case and checking the documents of the case, concluded that "disputed judicial acts are subject to cancellation" on the following grounds.
Recognition of the actions of the bailiff in enforcement proceedings as illegal
According to the case documents of the Specialized Interdistrict Economic Court of the South Kazakhstan region (South Kazakhstan region), which entered into legal force from the partnership: - by court order of July 9, 2015, 32,000,000 tenge of debt and 160,000 tenge of court costs (Enforcement Case No. 1) in favor of the individual entrepreneur K. The recoverer by the decision of September 29, 2015, 9,830,000 tenge of debt and 98,300 tenge of court costs (Enforcement Case No. 2);-2015 by the decision of December 15, 58,420,000 tenge of debt and 1,752,600 tenge of court costs in favor of "K" LLP (enforcement proceedings No. 3); -By the decision of December 15, 2015, 27,387,800 tenge of debt and 821,634 tenge of court costs (enforcement proceedings No. 4) were collected in favor of "R" LLP. On the basis of the resolution with T.: № 1-5132-2016-28 (26.02.2016), № 2-5132-2016-29 (26.02.2016), № 3-5132-2016-44 (7.04.2016), № 4-5132-2016-45 (7.04.2016) enforcement proceedings have been initiated (hereinafter referred to as 4 enforcement proceedings). During the enforcement proceedings, the company's movable, immovable property, accounts were seized, and 831,837 tenge was collected in favor of the recoverer. "On March 29, 2016, the head of the Department of the state institution" "Department for the Syrdarya region of the Department of the National Anti-Corruption Bureau (anti-corruption service) in South Kazakhstan region "" A. A. sent a letter to the Department of Justice of South Kazakhstan region to suspend the execution period for enforcement proceedings in relation to the partnership until the final procedural decision on the criminal case is made." During the investigation work in the criminal case, on June 14, 2016, the bailiff received a request from K. to refuse to recover under enforcement proceedings. On June 15, 2016, the bailiff terminated the enforcement action on the basis of a resolution on the termination of enforcement proceedings. On March 6, 2017, the verdict of the ARYS District Court of South Kazakhstan region was issued in a criminal case. On January 30, 2018, K. proposed to the bailiff to re-initiate enforcement proceedings on writ of execution. T. refused to resume enforcement proceedings with a referral letter dated January 31, 2018. No complaints were filed against this response letter. On March 12, 2018, K. sent a statement of claim to the RSU "territorial Department of bailiffs of the city of Arys" on the initiation of 4 enforcement proceedings.
The bailiff refused to initiate enforcement proceedings by the decree of March 13, 2018. In accordance with subparagraph 5 of Paragraph 1 of Article 38 of the law of the Republic of Kazakhstan" on enforcement proceedings and the status of bailiffs " (hereinafter referred to as the law), the grounds for refusal to initiate enforcement proceedings include: within three working days from the date of receipt of the enforcement document to him, if the enforcement document was previously submitted for execution and In accordance with subparagraph 1) of Paragraph 1 of Article 47 of the law, the grounds for termination of enforcement proceedings are if the recoverer refuses to recover. In this regard, the actions of the bailiff to refuse to initiate enforcement proceedings are legal and justified. K. as grounds for recognizing the actions of the bailiff as illegal, according to the verdict of the court that entered into legal force, he was found innocent and acquitted on episodes of the charge of causing material damage to the company in the amount of 32,000,000 tenge, 9,830,000 tenge, 58,420,000 tenge and 27,387,800 tenge; in the course of the investigation of the criminal case, he was forced to write an application for the termination of enforcement proceedings; on the basis of this, he filed a complaint with the court on the recognition of the actions of the bailiff to refuse to initiate the above 4 enforcement proceedings as illegal. In accordance with the verdict of the ARYS District Court of South Kazakhstan region dated March 3, 2017, K. was found guilty and acquitted due to the lack of criminal composition on charges brought by Paragraph "B"of part four of Article 177 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the PF). According to the verdict K. The basis for the acquittal with the episode of Article 177 of the criminal code is the assessment by the courts of the reduction of enforcement proceedings on the voluntary refusal of K. to collect the amount under 4 enforcement proceedings-"no material damage was caused to the partnership."
The motivation of K. to be forced to refuse enforcement proceedings during the investigation of a criminal case is unfounded. Because he did not complain about the actions of the employees of the criminal prosecution authorities about the pressure inflicted on him during the investigation. At the same time, local courts did not give an objectively correct assessment of the established circumstances, the entire set of collected evidence, and came to vague conclusions about the satisfaction of the claim. Based on the above, the Judicial Board of Cassation concluded that the adopted judicial acts of local courts are subject to cancellation due to violation of the sequence in the interpretation and application of the rules of law and a new decision to dismiss the statement of claim in the case. Therefore, the Judicial Board of Cassation for civil cases of the Supreme Court of the Republic of Kazakhstan made a new decision to cancel the judicial acts of local courts and leave the statement of claim of K. in the case without satisfaction. The proposal of the chairman of the Supreme Court of the Republic of Kazakhstan was satisfied.
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