Representations of bailiffs on the declaration of the debtor's wanted list

           According to subparagraph 5) of paragraph 1 of Article 126 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law), the bailiff, in accordance with the procedure established by law, has the right to submit submissions to the court on issues arising during the execution of enforcement actions, including changes in the method and procedure of execution, as well as the search for the debtor. according to the executive documents.

According to article 45 of the Law, if the debtor's place of residence is unknown, the bailiff is obliged to apply to the court at the place of execution of the enforcement document with a request to declare the debtor wanted through:

- internal affairs bodies; - anti-corruption service;

- the Economic Investigation Service. If a search is announced for the debtor and there is no property behind him that can be foreclosed on, the enforcement proceedings are suspended.

When the debtor's location is established or his property is identified, enforcement proceedings are resumed. The search for the debtor is carried out by court order by the internal affairs bodies, the anti-corruption service, and the economic investigation service in accordance with the procedure established by the legislation of the Republic of Kazakhstan.

Paragraph 5 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003 No. 12 "On liability for malicious non-enforcement of judicial acts" clarified that in support of the need to declare a search, bailiffs must provide the court with a copy of the enforcement document, a copy of the resolution on the initiation of enforcement proceedings, an act on non-residence of the debtor at the address indicated in the enforcement documents, information from the address bureau.

In accordance with the requirements of Article 249 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter - CPC), the submission of the bailiff must contain:

- details and location of the parties to the enforcement proceedings;

- the date of its initiation; - information on the progress of the execution of the enforcement document;

- the grounds for the appeal.

In case of non-compliance of the submission with the specified requirements, as well as the filing by the bailiff of an application for revocation of the submission, the court returns the submission with the documents attached to it.

The representation of the bailiff is allowed by the judge within ten working days from the date of its receipt by the court.

The court notifies the debtor and the recoverer of the received representation of the bailiff, informs the time and place of the court session.

The failure of the debtor or the recoverer, duly notified of the time and place of the court session, is not an obstacle to the consideration of the case.

Having considered the representation of the bailiff, the judge issues a ruling that can be appealed or protested. A copy of the court ruling is sent to the debtor and the recoverer within five working days.

Consideration of the submissions of bailiffs on the declaration of the debtor's wanted list. A study of the rulings of district courts on the consideration of bailiffs' submissions has shown that judges generally comply with the requirements of substantive and procedural law. At the same time, it should be noted that judges continue to violate the requirements of procedural legislation when executing judicial acts.

Thus, in accordance with Article 269 of the CPC, the definition issued in the conference room must specify:

1) date and place of the ruling;

2) the name of the court that issued the ruling, the surnames and initials of the judge and the secretary of the court session;

3) the persons involved in the case, the subject of the dispute or the stated claim;

4) the issue on which the ruling is being made;

5) the reasons for which the court came to its conclusions, and a reference to the laws that guided the court;

6) the procedural decision of the court;

7) the procedure and time limit for appealing a ruling, if it is subject to appeal.

Article 249 of the CPC provides for mandatory notification of the debtor and the recoverer of a court hearing to consider the submission.

At the same time, the study showed that judges continue to consider the submissions of bailiffs without the secretary of the court session and without notifying the bailiff, the debtor and the recoverer. In addition, the operative part of the definition must contain all information about the debtor who is wanted.

However, the judges limit themselves to specifying only the surname, first name and patronymic of the wanted debtor.

It is also necessary to indicate the debtor's date of birth, IIN, and last known place of residence, which will allow for prompt measures to find him. Thus, by the decision of the Maysky District Court of the Pavlodar region dated November 15, 2016, a search was announced for the debtor K.. The execution of the definition was entrusted to the State Institution "State Revenue Administration for the Maysky district" of the Ministry of State Revenue of the Maysky district of the Pavlodar region.

However, according to the Law, the search for the debtor is carried out by court order by the internal affairs bodies, the anti-corruption service, and the economic investigation service in accordance with the procedure established by the legislation of the Republic of Kazakhstan. The Law does not provide for any exceptions.

This court ruling cannot be enforced in such circumstances, since the State Revenue Directorate for the May District does not search for debtors.

In many cases, the courts do not take into account that the debtor is a legal entity in enforcement proceedings, whereas the search for a legal entity is not provided for by the requirements of the law. The execution of the decision must be carried out by selling the property belonging to the debtor.

So, by the definition of the specialized interdistrict economic court of Pavlodar region dated December 13, 2016, the search for the debtor of LLP "G" (head of S.) was announced through the internal affairs bodies. By a ruling of the specialized interdistrict economic court of the Pavlodar region dated December 5, 2016, a search was launched for the debtor of K LLP (head K.) through the internal affairs bodies.

By a ruling of the same court dated March 3, 2016, the bailiff's submission to declare a wanted list for the director of the Limited Public Partnership A.Sh. LLP was dismissed on the grounds that the debtor is a legal entity A. LLP, and not its director Sh.

Due to the established circumstances, the question arises about the possibility of declaring a search for debtors - legal entities or its founders and managers are wanted.

The head of a legal entity that is a debtor in enforcement proceedings is not subject to search.

The bailiff applied to the court with a request to declare the debtor of LLP "P" wanted in the person of the director and founder A. through the financial police authorities, due to the fact that it was not possible to establish the location of the debtor by the measures taken.

By a ruling of the Zhezkazgan City Court of the Karaganda region dated June 23, 2010, a search was launched for the debtor of LLP "P" represented by director and founder A. The search was entrusted to the financial police of the city of Zhezkazgan, Karaganda region.

By the ruling of the Zhezkazgan City Court of the Karaganda region dated July 13, 2016, A.'s application for the restoration of the procedural period for appealing the ruling of the Zhezkazgan City Court of the Karaganda region dated June 23, 2010 was satisfied.

By the ruling of the Judicial Board for Civil Cases of the Karaganda Regional Court dated September 09, 2016, the ruling of the Zhezkazgan City Court of the Karaganda region dated June 23, 2010 remained unchanged.

The court of first instance, satisfying the bailiff's submission on the wanted list of A, concluded that there was no debtor, that is, no Partnership at the place of his registration and at his residential address, which hinders the execution of judicial acts.

The appellate instance agreed with such conclusions of the court and noted the long-term non-execution of judicial acts by the debtor. On April 19, 2017, by a decision of the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan, the judicial acts that took place were annulled, with the issuance of a new decision to reject the bailiff's submission on the wanted list of LLP "P" in the person of the director and founder A.

The board's conclusions are motivated by the fact that the local courts did not take into account that the debtor of the enforcement proceedings is a legal entity, which violated the norms of substantive law.

Meanwhile, the location of the proper debtor for the enforcement proceedings has been established – the city of Zhezkazgan, Satpayev Street, 4-12, as indicated by the relevant data in the enforcement proceedings.

In addition, even in the absence of the first head of the legal entity A. at the location of the legal entity, due to a long business trip, the bailiff, in accordance with the requirements of Chapter 3 of the Law, is obliged to take measures to ensure the execution of enforcement documents.

At the same time, the local courts, when satisfying the bailiff's submission, did not take into account that the debtor, LLP "P", has a second founder (participant) A. and other officials of the legal entity with whose participation it was possible to perform executive actions to execute court decisions.

             Regulatory legal framework.

- The Constitution of the Republic of Kazakhstan dated August 30, 1995;

- The Civil Procedure Code of the Republic of Kazakhstan dated October 31, 2015 No. 377-V SAM.;

- The Law of the Republic of Kazakhstan "On Enforcement proceedings and the status of bailiffs" dated April 2, 2010 No. 261-IV;

- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the execution of judicial acts in civil cases" dated June 29, 2009 No. 6 (effective during the generalization period, subsequently expired on March 31, 2017);

- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On liability for malicious non-enforcement of judicial acts" dated December 19, 2003 No. 12.

 

  

President    

Republic of Kazakhstan     

© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan  

 

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