Release of property from seizure

Regulatory and legal framework. When summarizing civil cases on disputes related to the release of property from seizure, they were guided by the Constitution of the Republic of Kazakhstan (Articles 6, 25, 26) and the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code).,

The Civil Procedure Code (hereinafter referred to as the CPC),

The Land Code of the Republic of Kazakhstan, the Law of the Republic of Kazakhstan "On Housing Relations" No. 94 dated 04/16/1997,

The Law of the Republic of Kazakhstan "On State Registration of rights to immovable Property" No. 310 dated 26.07.2007,

Normative resolutions of the Supreme Court of the Republic of Kazakhstan: No. 2 dated March 24, 1975 "On judicial practice in cases of release of property from seizure", No. 5 dated July 16, 2007 "On certain issues of Dispute Resolution related to the protection of Property rights to housing", No. 10 dated July 09, 1999 "On some issues of the application of legislation on the right of ownership of housing", No. 3 dated April 20, 2006 "On the practice of Court Consideration of Disputes on the right to housing abandoned by the owner", No. 6 dated July 16, 2007 "On some issues of the application of Land legislation by courts", No. 8 dated December 25, 2006 "On some issues of application by courts of legislation on compulsory alienation of land plots for State needs".

The release of property from seizure is a way to protect the right of ownership, the property right of a person who has no obligations to a creditor or the state. Therefore, the results of the consideration by the courts of categories of civil cases on the release of property from seizure are legitimate and reasonably rendered decisions in ensuring the protection of property of individuals and legal entities.

In addition, when arrest is imposed by officials of the criminal prosecution authorities and the executive body, questions about the legal relations of persons to property are not clarified.

At the same time, there have been cases where individuals have been forced to go to court due to the fact that when purchasing property through an auction, they are unable to register it, since the seizure of the property is an obstacle.

In the course of such execution by bailiffs, confiscation of property as an additional punishment imposed by a court verdict, the seizure of property is not subject to confiscation of property, which leads to the appeal to the claims of interested persons.

Thus, when resolving claims for the release of property from seizure, regardless of who brought it, the courts should check the legality of the seizure of all property included in the inventory when making decisions. Upon finding out that the arrest has been imposed on items that cannot be levied by law, the court has the right to release these items from arrest, with the consent of the plaintiff, subject to the provisions of paragraph 2 of art.219 of the CPC.

In accordance with Part 2 of Articles 240-6 of the CPC of the Republic of Kazakhstan and the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 03/24/1975 No.Part 2 of Part 2 "On Judicial practice in cases of release of property from seizure" claims for release of property from seizure may be filed by owners or persons who own property on the basis of economic management, operational management, permanent land use, or on other grounds provided for by legislative acts or an agreement.

Such claims must be accepted by the courts and considered on their merits.

For example, according to the verdict of the specialized interdistrict criminal court of Akmola region dated 05/24/2010, the defendant was found guilty under Article 259, part 3, paragraphs "A, B" of the Criminal Code of the Republic of Kazakhstan and sentenced to imprisonment for 12 years, with confiscation of property and collection of court costs in the amount of 44,400 tenge to the state income. By the resolution of the investigator dated 10.01.2010, in order to ensure the execution of the court's verdict in terms of property penalties, the apartment was seized.

During the court session, the plaintiff provided a receipt for payment of court costs in the amount of 44,400 tenge. As a result, the court released immovable property from arrest in connection with the execution of the sentence in the above-mentioned part. The property necessary for the convicted person or persons dependent on him, according to the list provided by the penal enforcement legislation, is not subject to confiscation.

By the decision of the Aktau City Court No. 2 of the Mangystau region dated 08.01.2015, O.D.'s claim against the defendants of the State Institution "Department of State Revenue for the Mangystau region", the State Institution "Territorial Department of Bailiffs of the Aktau City" of the Department of Justice of the Mangystau region and to a third party who does not make independent claims on the subject of the dispute, LLP "...", "Management of Administrative the police Department of the Department of Internal Affairs of the Mangystau region" on the release of the car from arrest is satisfied.

The plaintiff stated in his statement of claim that, according to the conclusion of the electronic auction protocol dated December 09, 2013, he purchased a UAZ 31642-030 car with the registration number R.... BV, then contacting the administrative police Department of the Department of Internal Affairs of the Mangystau region in order to reissue the car, learned that by the decision of the tax authority dated 25.01.2013, 18.06.2013, 06.11.2013, by the decision of the bailiff dated 29.03.2013, 04.09.2013, by the ruling of the specialized interdistrict economic court of the Almaty city Court dated 13.05.2013, in order to secure the claim, the above-mentioned car was imposed He was arrested and asked to be released from the imposed arrest.

At the hearing, it was established that according to the vehicle registration certificate No. 01000634, the UAZ 31642-030 brand with the registration number R ...BV is registered with "...." LLP, which has a debt in the obligation to pay to the budget and pay taxes, and on 13.01.2013, the Aktau Tax Administration decided to limit its ownership of the specified property, which was then subject to an electronic auction.

The Aktau Tax Administration sent a letter No. 10-11/607 dated 01/27/2014 to the Administrative Police Department of the Department of Internal Affairs of the Mangystau region on the release of property from seizure of the UAZ 31642-030 brand with registration number R ... BV.

According to Article 235 of the Civil Code of the Republic of Kazakhstan, ownership of the property owned by the owner may be acquired by another person on the basis of a contract of sale, barter, donation or other transaction on the alienation of this property.

According to Article 83 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the status of Bailiffs", according to the auction results, after payment of the value of the acquired property, a purchase and sale agreement is concluded between the bailiff and the buyer of the property at the auction. The specified agreement is the basis for the registration by the buyer of ownership (transfer of ownership) of the property received by him in the state authorities.

According to paragraph 3 of the Resolution of the Supreme Court of 12.01.2009 No. 2 "On the adoption of interim measures in civil cases", securing a claim is allowed in any situation.

By the decision of the Aktobe City Court of 06/16/2015, the satisfaction of the claim of N.Zh. to the defendants E.M. and the private bailiff J.U. for the release of property from arrest was denied. During the consideration of the case, it became clear that by the decision of the private bailiff A.A. dated 10/21/2014, enforcement proceedings were initiated on the application of Lombard Finance LLP against the debtor E.L. for recovery in favor of the debt collector in the amount of 991,554 tenge. By the resolution of the private contractor dated 10.01.2015, the debtor E.L. He sold the plaintiff a 2003 Hyundai Gets car owned by him on the right of private ownership, with registration number D 505 NDM, according to expert estimates in the amount of 918,978 tenge.

However, according to the enforcement proceedings initiated by the ruling of the private bailiff Zh.U. dated 28.08.2014, the debtor E.L. owed 1,025,150 tenge to the recoverer E.M. In this connection, the decision of the bailiff dated 08.09.2014 on the seizure of all the property of the debtor E.L. in the amount of 1,178,922 tenge was authorized by the court. In connection with the non-execution of the court decision of 07/14/2014 on the recovery in favor of the recoverer E.M. of the amount of 1,025,150 tenge, the court, considering that the rights of E.M. they will be infringed upon, and also, according to Article 163 of the Civil Procedure Code of the Republic of Kazakhstan, the claim will remain secured until the decision enters into force. the claim of N.Zh. is left without satisfaction.

The court's conclusions contain an incorrect conclusion on the seizure of the debtor's property by a bailiff in order to enforce a court decision. Since the court decision was made on 07/14/2014, the bailiff's decision dated 09/08/2014 seized the debtor's property after the decision was made.

According to paragraph 3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 2 dated January 12, 2009 "On the adoption of interim measures in civil cases", interim measures are taken by the court in any case only after the judge accepts the application for proceedings and initiates the case, but before issuing an enforcement document on the enforcement of a judicial act that has entered into legal force..

The decision of the Aktobe City Court of 17.03.2015 on the claim of the plaintiff N.U. to the defendants of the RSU "State Revenue Administration for the city of Aktobe" and LLP "Lashyn Invest Holding" on the release of property from arrest was satisfied.

In the application, the plaintiff, as a participant in shared-equity construction, having bought apartment No. 89 in block 112 of building 11 of the Aktyubinsk microdistrict worth 11,155,872 tenge in accordance with the act on the contract concluded on December 25, 2013 with Lashyn Invest Holding LLP, could not register on private property rights, due to the fact that due to the existing debts of Lashyn Invest Holding LLP to third parties were seized by the decision of the State State Revenue Administration for the City of Aktobe on the above-mentioned apartment.

 The court concluded that the apartment was released from arrest due to the fact that the plaintiff, who received the apartment as a private property, should not be responsible for debts owed by the construction company to third parties.

 

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