Removal of the arrest from the current account of an individual imposed as part of interim measures
On November 26, 2024, case No.7514-24-00-2/29881, the judge of the Bostandyk District Court of Almaty, Tursymbaeva R.A., having considered the claim of the GOAa to the EU, With a claim for recognition of the car purchase agreement, bringing the parties to their original position, and collecting the amount,
The court has initiated a civil case on the above-mentioned claim.
155 of the Civil Procedure Code of the Republic of Kazakhstan, enforcement of a claim is applied at the request of the LMC participating in the case if failure to take measures may make it difficult or impossible to execute the court decision.
According to paragraph 12 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated January 12, 2009 No. 2 "On the adoption of interim measures in civil cases" (hereinafter referred to as the Resolution), in relation to paragraph 1) of the first part of Article 159 of the CPC, the adoption of such an interim measure as the seizure of property belonging to the defendant is allowed in cases where the plaintiff has filed claims arising from of contractual, tort, or other property-related legal relations that are subject to satisfaction at the expense of the debtor's property.
According to paragraph 13 of the Resolution, when considering the plaintiff's application for such an interim measure as the seizure of property, the court does not specify specific items or types of property and does not determine its value, which can be seized, even if the plaintiff in the application requests the seizure of specific items.
In accordance with paragraph 14 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the adoption of interim measures in civil cases" No. 2 dated January 12, 2009 in cases of recovery of compensation for moral damage in monetary terms, such a measure to secure a claim as the seizure of property by the court cannot be taken, since the amount of such damage in accordance with Article 952 of the Civil Code is determined by the court when making a decision.
If there is an application by the plaintiff for securing such a claim, the court, simultaneously with or after issuing a decision that determines the amount of compensation for moral damage, issues a ruling on enforcement of the court decision. In this case, the amount of the debtor's property to be seized may not exceed the amount of compensation for moral damage collected by the court from the defendant.
The plaintiff filed a motion to seize the property of the defendants within the limits of the claim.
Based on the above, guided by Articles 156-160, Articles 164 of the Civil Procedure Code of the Republic of Kazakhstan, DETERMINED: The petition of the GOAa, born on 05/13/1974 (not a resident of the Republic of Kazakhstan) - to satisfy.
To seize the movable and immovable property of the defendants SES (IIN.), CK (IIN.) in whatever form it is expressed, wherever it is located, within the amount of the claim 24,900,000 (twenty-four million nine hundred thousand) tenge, with the exception of property provided for in paragraph 1 of Article 156 of the Civil Procedural Code. the Code of the Republic of Kazakhstan.
The ruling is subject to immediate execution.
Disagreeing with the court's Ruling, a private complaint was filed, and they disagree with the ruling, as it does not correspond to any morality or meaning of the law. In this case, the agreement between the parties was in accordance with the purchase and sale agreement dated July 15, 2022 (hereinafter referred to as the agreement) SES was sold with the consent of his wife Gu Oleg A Toyota Land Cruiser 200 car, 2016 model year, identification number JTMCV02J504180477, state registration number 752MCZ02 (hereinafter referred to as the car). On July 15, 2022, this agreement was certified by a private notary of Almaty, Gulnara Zhusupkhanovna Seitzhanova, registered in the register for No. 2334.
In civil law relations, each party must fulfill its obligations under the contract, and the defendant's contractual obligations were fulfilled properly, where, through authorized authorities, the above-mentioned car was removed from the state database for registration of vehicles and then a transit number was assigned and safely crossed the state border of the Republic of Kazakhstan.
According to the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated January 12, 2009 No. 2, on the adoption of interim measures in civil cases, and in accordance with Article 155 of the CPC, the plaintiff must indicate in the application specific arguments that failure to take interim measures may make it difficult or impossible to enforce the judicial act. However, we believe that the Plaintiff did not provide exhaustive arguments for taking Interim Measures, but limited himself to well-known arguments, in addition, the Plaintiff's arguments in this case are not justified and legitimate, while the Defendant fulfilled his obligations.
Normative resolution of the Supreme Court of the Republic of Kazakhstan dated March 20, 2003 No. 2. On the application by the courts of certain norms of civil procedure legislation, the above-mentioned statement of claim is submitted to the court of first instance in writing or in the form of an electronic document and the application must specify: the name of the court to which the statement of claim is filed, the data and addresses of the parties to the proceedings, as well as the circumstances on which the plaintiff bases his claims, as well as the content of the evidence confirming these circumstances and other circumstances according to the above article.
Article 6. The Civil Code of the Republic of Kazakhstan "Interpretation of the norms of civil legislation" stipulates: The norms of civil legislation must be interpreted in accordance with the literal meaning of their verbal expression.
Article 47. CPC RK "Parties", Parties in civil proceedings
the plaintiff and the defendant are present. Plaintiffs are citizens and legal entities who have filed a claim in defense of their violated or disputed rights and freedoms, legitimate interests, or in whose defense a claim has been filed by other persons in accordance with the procedure provided for by this Code.
The defendants are citizens and legal entities against whom a claim has been filed. In cases stipulated by law, organizations that are not legal entities may also be parties.
However, the above requirements of the Civil Procedure Code of the Republic of Kazakhstan have not been met, as the Statement of Claim indicates an Improper Defendant. Thus, an erroneous interpretation on the part of the Plaintiff of the rules of procedural law led to a violation of civil rights with the CC.
The plaintiff's actions violate Articles 4 and 5 of the CPC RK Tasks and Principles of civil proceedings. Violation of the principles of civil proceedings, depending on its nature and materiality, entails the cancellation of judicial acts. The objectives of civil proceedings are also to protect and restore violated or disputed rights, freedoms, and legitimate interests of citizens, the State, and legal entities, to respect the rule of law in civil matters, to ensure full, timely, and fair consideration and resolution of cases, to promote the peaceful settlement of disputes, to prevent offenses, and to foster public respect for the law and the court.
That is, in the lawsuit, the Plaintiff indicated that the SES was sold with the consent of his wife. A Toyota Land Cruiser 200 car was delivered to Oleg Anatolyevich, in this case, an erroneous interpretation of the rules of procedural law by the Plaintiff led to a violation of civil rights.
Article 50 of the CPC RK. The "Replacement of an improper defendant" provides for
Replacement of the defendant is allowed before the start of consideration of the case on the merits in the court of first instance. The court, having established that the claim was brought against the wrong person who should be responsible for the claim, may, at the request of the plaintiff, without terminating the case, allow the replacement of the improper defendant with the proper one.
After the replacement of an improper defendant, the preparation of the case and its consideration at the court session are carried out from the very beginning. The term of consideration of the case is calculated from the date of completion of the preparation of the case for trial. If the plaintiff does not agree to replace the improper defendant with a proper defendant, the court considers and resolves the case according to the claim.
By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests.
In accordance with Article 8 of the CPC, everyone has the right to apply to the court for protection of violated or disputed constitutional rights, freedoms or protected interests.
123 of the CPC RK In cases where the last day of the term falls on a non-working day, the day of the end of the term, calculated in years, months and days, is considered to be the next working day. Thus, the final version of the court's ruling on satisfaction of the petition for acceptance of the claim security dated December 25, 2023 was released the next day, that is, December 26, 2023, and is subject to appeal within ten working days from the date of the final ruling.
The Universal Declaration of Human Rights (articles 7, 8 and 10), the International Covenant on Civil and Political Rights (article 14) and the Convention for the Protection of Human Rights and Fundamental Freedoms (article 6) establish that everyone is equal before the law and the courts and that everyone has the right to a fair trial in determining their civil rights and duties. and the public hearing of the case within a reasonable time by a competent, independent and impartial court established by law.
According to Article 161 of the Civil Procedure Code of the Republic of Kazakhstan, where a private complaint can be filed against rulings on the issues of securing a claim, a petition has been brought by the prosecutor to the court of appeal, whose decision is final.
On the grounds of the above and guided by art. 161 of the CPC RK, the court was asked to cancel the ruling of the judge of the district court No. 2 of Almaly district of Almaty Bakiyeva S.A., dated December 25, 2023.
The court dismissed the complaint.
Subsequently, an Administrative claim for actions (inaction) was filed in accordance with the procedure of the APPC The State bailiff and JSC "People's Bank of Kazakhstan" on encumbrance of the settlement account for receiving wages
So on November 26, 2024, the Judge of the Bostandyk District Court of Almaty, Tursymbaeva R.A., having considered gr. case No. 7514-24-00-2/29881 on the claim of Mr. KES, S.P.K. on recognition of the car purchase agreement, bringing the parties to their original position, recovering the amount, the Court Determined - The plaintiff's petition for securing the claim – satisfy. To seize the movable and immovable property of the defendants SES (IIN ...), S.P.K... (IIN ...) (hereinafter referred to as the Defendants) in whatever form it is expressed, wherever it is located, within the amount of the claim 24,900,000 tenge, with the exception of property provided for in paragraph 1 of Article 156 of the Civil Procedure Code of the Republic of Kazakhstan.
On 12/06/2024, the State Bailiff Ihteleu Ainur Ihteleukyzy (hereinafter referred to as the GSI), having considered art. 9, paragraph 1, paragraphs 4-1 of the court Ruling on securing a claim or canceling a claim for seizure of movable and immovable property of the defendants, in whatever form it is expressed, wherever it is, within the amount of the claim 24,900,000 tenge, with the exception of the property provided for in paragraph 1 of Article 156 of the CPC RK Decided: Initiate enforcement proceedings; Assign Enforcement proceedings no.1486/24-75-19 .
On 11.12.2024, the State Tax Service of the Kyrgyz Republic adopted a resolution on requesting information on bank account numbers and the availability of money in them, information on the nature and value of property held in banks, organizations engaged in certain types of banking operations, as well as in insurance organizations, and seizing them.
In the decision, the ICG specifically notes to seize the movable and immovable property of the defendants, with the exception of the property provided for in paragraph 1 of Article 156 of the Civil Procedure Code of the Republic of Kazakhstan.
Subparagraph 1, paragraph 1 of Article 156 of the CPC RK stipulates that "Measures to secure a claim may be: seizure of property belonging to the defendant and held by him or other persons, with the exception of seizure of money held in bank accounts that receive salary amounts.
Thus, on December 22, 2024, Halyk Bank of Kazakhstan JSC, on the basis of the GSI Resolution dated 12/11/2024 on requesting information on bank account numbers and the availability of money in them, information on the nature and value of property held in banks, organizations engaged in certain types of banking operations, as well as in insurance organizations, and seizure on them. She seized all of the Plaintiff's accounts held by Halyk Bank of Kazakhstan JSC.
JSC Halyk Bank of Kazakhstan, having been notified by a Resolution from the State Tax Service of Kazakhstan not to seize the money in bank accounts that receive salary amounts in accordance with paragraphs 1, paragraph 1 of Article 156 of the CPC of the Republic of Kazakhstan and contrary to the specified provision of the article, imposed encumbrances on a specially opened account for receiving wages that are available in JSCPeople's Bank of Kazakhstan".
According to the Help / Anyktama No. 140801718551 dated 12/18/2024 issued by JSC Halyk Bank of Kazakhstan, the defendant has an account no.KZ..... opened on 06/24/2022, which receives salaries from T...yl LLP.
In accordance with the Certificate No.0008051 dated 12/18/2024 issued by T.L. LLP, S.E. is indeed an employee of T.L. LLP since 08/06/2019 and holds the position of a Leading Contract Specialist.
The only source of income for the maintenance of the Defendants' family is the salary received from the above-mentioned settlement account, which was blocked by 100%.
In accordance with the requirements of Article 26 of the Constitution of the Republic of Kazakhstan, no one can be deprived of their property, except by a court decision.
Today, as noted above, Judge R.A. Tursymbaeva of the Bostandyk District Court of Almaty is reviewing civil case No. 7514-24-00-2/29881, which has not yet been decided.
According to the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated January 12, 2009 No. 2, on the adoption of interim measures in civil cases, it is stipulated that interim measures taken by the court should not lead the defendant, an individual or a legal entity or an individual entrepreneur, to bankruptcy, disruption of normal production activities, to violation of the legitimate rights and interests of others, facilitate raiding (illegal seizure of the defendant's property).
In accordance with paragraphs 1, paragraph 2, Article 32 of the ZRK On Enforcement Proceedings and the Status of Bailiffs, it is stipulated that when measures are taken to ensure the execution of enforcement documents, seizure of the debtor's property, including money and securities held by him or other individuals or legal entities (with the exception of seizure of money held in bank accounts that receive salary amounts).
In accordance with Article 131 of the CPC of the Republic of Kazakhstan, an administrative case is initiated in an administrative court on the basis of a claim.
Article 133 provides that, in a claim for coercion, the plaintiff may require the adoption of a favorable administrative act, the adoption of which was refused or not accepted due to the inaction of an administrative body or official. In such cases, there is no separate requirement to challenge the refusal. A claim for coercion may contain a requirement on the defendant's obligation not to accept an onerous administrative act.
According to article 107, a claim against several defendants may be filed at the location of one of the defendants. The choice between several courts, which, according to this article, have jurisdiction over the case, belongs to the plaintiff.
On the grounds of the above and guided by Articles 156 of the CPC RK, Articles 3, 32, 33 of the SAM On enforcement proceedings and the status of bailiffs and Article 131 of the CPC RK,
They asked the court to force the defendants to remove the imposed encumbrance (Arrest) from the settlement account of KZ.... (KZT) in JSC "People's Bank of Kazakhstan" through which salaries are paid from the employer.
During the trial in accordance with the procedure of the APPC, the bailiff removed the encumbrances from the settlement account of an individual, accordingly, the claim was withdrawn from the court.
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