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Recovery by court order of unpaid wages and mandatory pension contributions to an employee
In the Republic of Kazakhstan, the legislator provides for the right to appeal to the court in the order of compulsory proceedings of employees whose rights have been violated, demanding the recovery of wages and other payments accrued but not paid to the employee, including the transfer of mandatory pension contributions to the UAPF (paragraph 6) of art.135 of the CPC).
In accordance with Part 1 of Article 134 of the CPC, a court order is a judicial act that is issued by a judge at the request of the recoverer for the recovery of money or the recovery of movable property from the debtor for indisputable claims without summoning the debtor and the recoverer to hear their explanations and without judicial proceedings.
Based on the above, writ proceedings are carried out without the participation of the parties, according to the indisputable requirements of the claimant. Writ proceedings are accelerated, truncated proceedings based on indisputable requirements, where the principles of dispositivity, competitiveness, directness, verbality, publicity and procedural equality of the parties do not apply. The recoverer and the debtor are not notified of the consideration of the claim, therefore, the explanations of the recoverer and the debtor are not heard in the writ proceedings, and judicial proceedings are not conducted. The result of consideration of a claim in writ proceedings is an act of the judge, not the court.
The main provision characterizing the writ proceedings is the consideration by the judge of the indisputable property claim of the recoverer against the debtor. The indisputability of a claim in accordance with a legislative requirement means that the claimed claim is substantiated by proper documents, that is, it is confirmed by indisputable evidence. It should be borne in mind that the indisputability of the requirement is a regulatory presumption. A claim that has been considered by a judge in the order of writ proceedings and for which a court order has been issued is recognized as indisputable in the event and until the debtor's objections to the stated claim are received within the time limits established by law. The debtor's objections indicate that there is a dispute on this claim between the recoverer and the debtor.
Thus, writ proceedings are a simplified judicial procedure for the consideration by a judge of the indisputable claims made by the recoverer against the debtor. At the same time, a prerequisite for resolving the issue of issuing a court order is the attachment of all necessary evidence to the application. And although no court session is held in cases of writ proceedings, the recoverer and the debtor are not called to court, the judge is required to establish a number of circumstances that are part of the subject of evidence, on the basis of which it is possible to resolve the issue of issuing a court order.
Such circumstances are:
1) The fact that the employee and the employer are in an employment relationship
2) The fact of accrual of wages and other payments to the employee
3) The fact of delayed payment (non-payment) of already accrued wages and other payments
4) The amount of payment due to the employee and unpaid by the employer
5) The fact that there is no transfer of employees' pension contributions to the UAPF.
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