Response to an administrative claim challenging the actions of the bailiff on the cancellation of the resolution
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To the Specialized Interdistrict Administrative Court of Shymkent city
To Judge Derbisova A.M.
+7 775 600 3124 42 Tynybayeva St., Shymkent, Dauren
from an interested party: ........... Karlygash Nurgalievna
IIN ............ Almaty, ul. ..........., 154, 102 sq. m. +7 701 752
Proxy representative: Law and Law Law Company LLP
BIN 190240029071 Almaty, 79 Abylai Khan ave., office 304
info@zakonpravo.kz / www.zakonpravo.kz
+7 708 971 78 58; + 7 727 971 78 58.
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on an administrative claim challenging the actions of the bailiff on the cancellation of the resolution
Administrative case No. 5294-21-00-4/782 dated 12/03/2021 on the administrative claim of ....... B.K., (hereinafter referred to as the plaintiff) is under your jurisdiction to the bailiff ........ Bekzhan Serikovich (hereinafter referred to as the defendant). Dear Court, ......... Karlygash Nurgalievna (hereinafter referred to as the interested party) is a party to the recoverer in this enforcement proceeding No. 11183-14-51-/13 dated 08/11/2014. We disagree with the plaintiff's administrative claim on the following grounds: on October 24, 2000, the Yenbekshinsky District Court of Shymkent issued an order No. 2-2025 on the recovery of alimony from ....... B.K., for the maintenance of a minor child in the amount of 1.4 percent of all types of earnings in favor of .......... K.N.
Response to an administrative claim challenging the actions of the bailiff on the cancellation of the resolution
In the period from 2007 to 2014, the plaintiff evaded paying alimony and thus did not properly execute the court order. Accordingly, the person concerned submitted an application for the determination of alimony arrears in the period from 08/11/2011 to 08/11/2014. The application was submitted to the acting bailiff at that time. ........... P.A. According to paragraph 3, art. 169 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", which stipulates that the amount of alimony arrears paid for minor children in accordance with Article 139 of this Code is determined by the bailiff based on the salary and other income of the person obligated to pay alimony for the period during which alimony was not collected. The procedure for performing executive actions by bailiff Kabylbekov P.A. corresponded to the legislation of the Republic of Kazakhstan. At that time, the plaintiff concealed that he was working for MKO KazMicroFinance LLP and thus explained that he was unable to pay alimony. Subsequently, after revealing the fact that the plaintiff worked for MKO KazMicroFinance LLP, the bailiff ........ PA immediately sent a request dated 10.12.2014 to this company, where he demanded to provide data on all income and salary deductions for the last 12 months. Thus, the bailiff received the requested certificate from MKO KazMicroFinance LLP and found out that, on average, the plaintiff received a salary of 405,667 tenge, of which 101,416 tenge had to be repaid for the maintenance of the child.
Thus, bailiff Kabylbekov P.A., by his Resolution dated 12/15/2014, established the amount of debt on enforcement proceedings dated 11/24/2000 for recovery from Khamitbekov B.K., alimony in the amount of 1.4 parts from all types of earnings in favor of ...... K.N., is 3 983,054 tenge. Dear Court, I ask you to pay attention to the fact that the plaintiff in his administrative claim indicates that the Decision of the Yenbekshinsky District Court of Shymkent dated 11/21/2014 overturned the Decision of the bailiff Kabylbekov P.A., on the determination of debt dated 10/28/2014. However, if we study the Decision of the Yenbekshinsky district Court of Shymkent dated 11/21/2014, then in the operative part the decision of the bailiff Kabylbekov P.A. on foreclosure on wages, and not on the decision on debt determination, is declared invalid and canceled.
Moreover, it is important to note that the bailiff Khamitov B.S., issued a resolution on foreclosure on wages based on the resolution of Kabylbekov P.A., dated 12/15/2021, where the amount of debt is indicated in the amount of 3 983,054. In paragraph 2, art. 93 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the status of Bailiffs" stipulates that when foreclosing on wages and other types of income of the debtor, the bailiff, taking into account the requirements of this Law, issues a resolution indicating the amount to be withheld monthly until the awarded amounts are fully recovered, and sends along with a copy of the enforcement document, certified by the seal of the territorial department or a private bailiff, for execution to the employer with whom the debtor is in an employment relationship, or to a person, from which the debtor receives income. According to paragraph 2, Article 99 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the status of Bailiffs", which stipulates that the amount of alimony arrears is determined by the bailiff at the place of execution of the decision based on the actual salary (income) received by the debtor during the time during which recovery was not carried out. According to paragraph 1, art. 101 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the status of bailiffs", which stipulates that debt collection for all alimony payments is made from wages and other income of the alimony payer.
Response to an administrative claim challenging the actions of the bailiff on the cancellation of the resolution
Also, paragraph 1, Article 171 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" stipulates that when debts are incurred due to the fault of a person who is obliged to pay alimony by court order, the guilty person pays the alimony recipient a penalty in the amount of one tenth of one percent of the amount of unpaid alimony for each day of delay. According to art . 2 The Administrative Procedural Procedure Code of the Republic of Kazakhstan provides that the provisions of the Civil Procedure Code of the Republic of Kazakhstan shall apply in administrative proceedings, unless otherwise provided for by this Code. According to paragraph 1 of Article 113 of the Civil Procedure Code of the Republic of Kazakhstan, at the request of the party in whose favor the decision was made, the court awards, on the other hand, the costs incurred by her to pay for the assistance of a representative (several representatives) who participated in the process and is not in an employment relationship with this party, in the amount of the costs actually incurred by the party. For property claims, the total amount of these expenses should not exceed ten percent of the satisfied portion of the claim.
According to non-property requirements, the amount of expenses is collected within reasonable limits, but should not exceed three hundred monthly calculation indices. According to Article 30 of the Administrative Procedural Procedure Code of the Republic of Kazakhstan, which states that interested persons have the right, prior to the adoption of a judicial act that ends the consideration and resolution of an administrative case in a court of first instance, on their own initiative, to enter into an administrative case on the side of the plaintiff or the defendant, if this judicial act may affect their rights, duties and legitimate interests. In art . 8 of the Administrative Procedural Procedure Code of the Republic of Kazakhstan stipulates that when considering an administrative case, an administrative body, an official and a court are obliged, while maintaining objectivity and impartiality, to provide each of the participants in an administrative case with an equal opportunity and conditions for exercising their rights to a comprehensive and complete investigation of the circumstances of the administrative case. If the law or the agreement of the parties to the dispute provides for the resolution of relevant issues by the court, the court is obliged to resolve these issues based on the criteria of fairness and reasonableness. Based on the above and guided by Article 30 of the Administrative Procedural Code of the Republic of Kazakhstan, I REQUEST THE COURT:
Plaintiff's claims ........... To refuse Baurzhan Kideralievich's satisfaction;
The bailiff's decision .......... B.S., on the foreclosure of wages dated 10/21/2021, - leave unchanged;
Collect from .......... B.K., in favor of ....... K.N., representative expenses in the amount of 100,000 tenge.
Sincerely, Proxy Representative: _________/ Nurlanov N.N.. "____"__________2021 G.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
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