Reversal of the execution of a court decision on judicial acts that have entered into legal force

              In accordance with paragraph 1 of Article 76 of the Constitution of the Republic of Kazakhstan and article 21 of the Code of Civil Procedure of the Republic of Kazakhstan (hereinafter referred to as the CPC), judicial acts that have entered into force are binding on all State bodies and their officials, individuals or legal entities to whom these judicial acts relate.

The execution of judicial acts is the final stage of civil proceedings and determines the effectiveness of justice in the State.

The purpose of enforcement proceedings is to ensure the effective restoration of violated or disputed rights or legally protected interests.

According to Article 247 of the CPC, in the event of the annulment of the judgment of the court of first instance that has entered into force, the decisions of the court of appeal and cassation instances, which are fully or partially executed, and the court makes a new decision to dismiss the claim in whole or in part, or to issue a ruling on the termination of proceedings or the dismissal of the claim without consideration from the plaintiff. everything received by him under the cancelled decision is recovered (reversal of execution of the decision).

By virtue of the above-mentioned rule, the reversal of the execution of the decision means the restoration of the rights and legitimate interests of the defendant, violated by the execution of the decision, which was subsequently canceled.

In the legal literature, three conditions have been identified under which a reversal of the execution of a decision is possible.:

A court decision that has entered into legal force has been fully or partially executed.;

cancellation of a court decision that has been fully or partially executed in accordance with the established procedure;

at the new hearing of the case, a new decision was made to dismiss the claim in whole or in part, or a court ruling was issued to terminate the proceedings in the case, or to dismiss the claim.

If these signs occur, the plaintiff is obliged to return to the defendant all the money recovered from the defendant, all items previously owned by the defendant and transferred to the plaintiff during the execution of the requirements of the enforcement document, the cost of these items (if they have already been consumed by the plaintiff or have lost their useful properties).

For example, M. appealed to the court with a request to reverse the execution of the court's decision.

The court found that by a court decision dated December 21, 2015, M.'s claims against M. for the recovery of alimony for the maintenance of an incapacitated parent were partially satisfied, alimony for her maintenance was collected in the amount of 3 monthly calculation indices, monthly, starting from November 05, 2015, until circumstances change. On March 17, 2016, the bailiff issued a decision to foreclose on M.'s salary.

According to the certificate of JSC "A", on the basis of the above documents, an amount of 30,188 tenge was withheld from M. in favor of M. in March 2016.

By the ruling of the judicial Board for Civil Cases of the Karaganda Regional Court dated March 28, 2016, the court decision of December 21, 2015 was canceled, the proceedings were terminated due to the plaintiff's refusal of the claim.

In this regard, by the ruling of the Temirtau City Court of the Karaganda region dated May 12, 2016, M.'s application for a reversal of the execution of the court decision dated December 21, 2015 in the civil case on M.'s claim against M. for the recovery of alimony for the maintenance of an incapacitated parent was satisfied. With M. in favor of M. the amount of 30,188 tenge was recovered.

The cancellation of judicial acts by the Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan necessitated the reversal of the execution of the court's decision.

The Ministry of Defense appealed to the court with a request to reverse the execution of the decision of the Semeysky City Court of December 24, 2015, the decision of the Appellate Judicial Board for Civil and Administrative cases of the East Kazakhstan Regional Court of April 28, 2015, the decision of the Cassation Judicial Board of the East Kazakhstan Regional Court of August 10, 2015 and asks to recover from D. in favor of The Ministry of Defense paid compensation in the amount of 5,998,237 tenge, refunded state duty in the amount of 59,982 tenge.

The court found that the decision of the Semeysky City Court of February 24, 2015, left unchanged by the court of appeal and cassation instances, with the Ministry of Defense in favor of D. compensation was collected for undelivered housing in the amount of 5,998,237 tenge and refund of state duty in the amount of 59,982 tenge, a total of 6,058,219 tenge.

The claim regarding its presentation to the Akim of the city of Semey and the recovery of the remaining amount of compensation was refused.

According to the invoice No. 2 dated December 29, 2015 and the certificate dated May 31, 2016, according to the writ of execution No. 2 dated May 22, 2015 of the City Court of Semey, the military unit paid monetary compensation in return for the right to free privatization of official housing in the amount of 6.058.219 tenge.

By the decision of the Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan dated March 16, 2016, the decision of the Semey City Court dated February 24, 2015, the decision of the Appellate Judicial Board for Civil and Administrative cases of the East Kazakhstan Regional Court dated April 28, 2015, the decision of the Cassation Judicial Board of the East Kazakhstan Regional Court dated August 10, 2015 were amended. The said judicial acts regarding the satisfaction of the claim of D. the recovery of compensation from the Ministry of Defense in the amount of 5,998,237 tenge, the refund of state duty in the amount of 59,982 tenge has been canceled.

A new decision was made in this part and D.'s claim was denied. In this regard, by the ruling of the Semey City Court of July 18, 2016, the application of the Ministry of Defense for the reversal of the execution of the court decision of February 24, 2015 was satisfied. The amount received in the amount of 6.058.219 tenge was recovered from D. in favor of the Ministry of Defense.

The norms of the civil procedure legislation do not regulate the issue of the reversal of the execution of a court order, however, the courts apply Article 247 of the CPC.

For example, K. appealed to the court to reverse the execution of the court order dated August 07, 2015.

The court found that on the basis of a court order of the Balkhash City Court dated August 07, 2015, debts were collected from K. in favor of LLP "G" for the period from January 01, 2015 to July 31, 2015 in the amount of 39,131 tenge and a refund of state duty in the amount of 587 tenge, and a total of 39,718 tenge.

By the ruling of the Balkhash City Court dated February 22, 2016, this court order was canceled and the plaintiff, LLP "G", filed a lawsuit against K. for debt collection in the amount of 45,512 tenge for the period from January 01, 2015 to March 03, 2016, which included the current debt, taking into account the debt for the period for which This court order has been cancelled.

By the ruling of the Balkhash City Court dated April 14, 2016, the claim of LLP "G" to K. for debt collection was left without consideration on the basis of part 8 of Article 279 of the CPC. It has been established from the documents attached to the case file that the court order of August 07, 2015 was executed by applicant K. in full.

By the ruling of the Balkhash City Court of April 25, 2016, the execution of the court order of the Balkhash City Court of August 07, 2015 and with LLP "G" was reversed in favor of K. the amount of 39,718 tenge was recovered.

We believe that when applying the procedure for executing a court order, the court should refer to part 4 of Article 6 of the CPC: in the absence of legal norms governing a disputed legal relationship, the court applies the legal norms governing a similar relationship.

The court, having satisfied the requirement to reverse the execution of the court's decision, correctly refused to collect court costs.

By the decision of the Al-Farabi District Court of Shymkent, South Kazakhstan region, dated September 09, 2014, the claim of LLP "B" to K. for debt collection was partially satisfied, the amount of debt 323,966 tenge and the state duty 9,719 tenge were recovered from the defendant in favor of the plaintiff.

By the decision of the Appellate Judicial Board for Civil and administrative cases of the South Kazakhstan Regional Court dated April 01, 2016, the decision of the Al-Farabi District Court of Shymkent was overturned and a new decision was made, the claim of LLP "B" to K. for the recovery of the amount of debt was left without satisfaction.

By the ruling of the Al-Farabi District Court of Shymkent, South Kazakhstan region, dated August 4, 2016, K.'s statement the reversal of the execution of the decision on the claim of LLP "B" to K. for the recovery of the amount of debt was partially satisfied.

The execution of the decision of the court of the Al-Farabi District Court of the city of Shymkent, South Kazakhstan region, dated September 09, 2013, was reversed in the civil case on the claim of LLP "B" to K. for the recovery of the amount owed. With LLP "B" in favor of K. The amount of 338,130 tenge was recovered.

The rest of the applicant's claim is denied. The application for recovery of court costs and expenses in the performance of enforcement actions, except for the amount paid for repayment of the loan in the amount of 4,445 tenge dated July 05, 2016, was refused, due to the failure to provide evidence of payment of court costs, that is, the original receipt.

When studying judicial practice in this category, it was found that courts often refuse to satisfy an application for a reversal of the execution of a court decision.

The court concluded that the author of the appeal is not the plaintiff in this civil case, the funds were transferred to him by the defendant in fulfillment of obligations under the compulsory insurance contract, then there are no grounds for satisfying the application.

For example, JSC "N" appealed to the court with a request to reverse the execution of the decision of the Zyryanovsky District Court of December 29, 2015. The court found that by the decision of the Zyryanovsky District Court of December 29, 2015, M.'s claim to JSC "N" for the elimination of violations of rights and recovery of the amounts of recalculation of lost earnings, taking into account the increase in the average monthly salary, satisfied.

By the decision of the Judicial Board for civil cases of the East Kazakhstan Regional Court dated March 02, 2016, the decision of the Zyryanovsky District Court dated December 29, 2015 was left unchanged. By the ruling of the Zyryanovsky District Court of October 07, 2016, the decision of the Zyryanovsky District Court of December 29, 2015 was overturned due to newly discovered circumstances.

By a court ruling dated October 27, 2016, M.'s claim against JSC "N" for the elimination of violations of rights and recovery of the amounts of recalculation of lost earnings, taking into account the increase in the average monthly salary, was left without consideration. Meanwhile, the decision of the court of JSC "N" has been fully executed, payment order No. 3 dated March 17, 2016 transferred the amount of the insurance premium in the amount of 329046 tenge to the account of JSC "K".

According to Article 960 of the Civil Code of the Republic of Kazakhstan, it is not subject to return as unjustified enrichment.:

property transferred in fulfillment of an obligation before the due date, unless the obligation provides otherwise;

property transferred in fulfillment of an obligation after the expiration of the limitation period; sums of money and other property provided to a citizen, in the absence of bad faith on his part, as a means of subsistence (wages, royalties, compensation for harm to life or health, pension, alimony, etc.) and used by the acquirer.

According to paragraph 1 of Article 98 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs", recovery cannot be levied on the amounts received by the debtor in compensation for damage caused by injury or other damage to health, as well as the death of the breadwinner.

According to the submitted payment orders of JSC "K" M. the amounts were paid by court decision. The court concluded that JSC "K" is not the plaintiff in this civil case, the funds were transferred to him by the defendant in fulfillment of obligations under the compulsory insurance contract, then there are no grounds for satisfying the application.

Regarding the reversal of the execution of the court's decision regarding the recovery from M. in favor of JSC "N" of the court costs received by him in the amount of 7,000 tenge, the court considered it unsatisfactory, since the specified amount of money was the payment of representation expenses for the participation in court of a representative who defended his rights at a court hearing, which does not show any dishonesty. on M.'s part, therefore, it is not subject to collection.

The court also considered the reversal of the execution of the court's decision in terms of obliging the republican budget to refund the specified state duty in the amount of 991 tenge to be unsatisfactory, since the specified state duty was collected to the republican budget, and not in favor of plaintiff M. In addition, the procedure for refunding the state duty is defined by Article 107 of the CPC.

By the ruling of the Zyryanovsky District Court of the East Kazakhstan region in satisfaction of the application of JSC "N" to reverse the execution of the decision of the Zyryanovsky District Court dated December 29, 2015 on the claim of M. against JSC "N" and obliging JSC "K" to make a payment in the amount of 329046 tenge to JSC "N", obliging M. to make a payment in the amount of 7 000 in JSC "N", as well as the refund of the state duty from the Republican budget in the amount of 991 tenge, was refused.

Judicial acts on the cancellation of a court decision and on the abandonment of an application without consideration are grounds for the cancellation of a previously registered decision.

For example, G. applied to the court for a reversal of the decision of the Temirtau City Court of August 29, 2013. The statement was motivated by the fact that by the decision of the Temirtau City Court of August 29, 2013, A.'s claim to the Temirtau City Department of Justice for recognition of the refusal to register the right to sell the right to lease a land plot concluded between Temirtau Akimat and A. was satisfied.

The Department of Justice of the city of Temirtau is charged with the duty to register for A. the right to sell the right to lease a land plot. The said court decision was executed by the defendant of Temirtau city Court - on December 21, 2013, A. the registration of the right to sell the right to lease a land plot concluded between the Akimat of Temirtau and A. On October 2, 2015, by the decision of the Temirtau City Court, G.'s lawsuit against the Akimat of Temirtau city, the State Institution "Department of Land Relations of Temirtau city", the State Institution "Department of Justice of the city Temirtau", A. satisfied. Resolved:

- to invalidate the decision of the Commission for the Legalization of Real Estate under the Akimat of Temirtau No. 4 dated August 20, 2007 on the legalization of residential premises abroad;

- to invalidate the resolution of the Akimat of Temirtau No. 1 dated August 29, 2007 on the approval of the act of the acceptance commission dated August 29, 2007 on the commissioning of a legalized facility – non-residential premises;

- to invalidate the agreement No. 12 dated August 24, 2007 on the lease of a land plot concluded between the Akimat of Temirtau and A.;

- to invalidate the contract No. 22 dated April 22, 2008 for the purchase and sale of the right to lease a land plot concluded between the Akimat of Temirtau and A.;

- to invalidate the state registration of the rights to non-residential premises for A., carried out by the State Institution "Department of Justice of Temirtau city" on September 28, 2007.

On January 25, 2016, by a decision of the judicial board for civil Cases of the Karaganda Regional Court, the decision of the Temirtau City Court of October 2, 2015 was left unchanged.

On February 22, 2016, by a ruling of the Temirtau City Court, the decision of the Temirtau City Court of August 29, 2013 in the civil case on A.'s claim to the Temirtau City Department of Justice regarding the recognition of the refusal of registration as illegal and the obligation to register property rights was overturned due to new circumstances.

On April 1, 2016, by a court ruling, A.'s statement of claim to the Department of Justice of the city of Temirtau regarding the recognition of the refusal of registration as illegal and the obligation to register the right of ownership for the dissolution of marriage was left without consideration.

Due to the requirements of Article 248 of the CPC, the court is not obliged on its own initiative to resolve the issue of reversing the execution of the decision, this provision of the law provides that this issue is resolved by the court on the basis of the defendant's application.

An important point is that an application to reverse the execution of a court decision is filed with the court only by the defendant and within the limitation period, since the application essentially contains a material claim for the return of unjustified enrichment.

The limitation period begins on the date of entry into force of the court's decision to dismiss the claim, or to terminate the case or to dismiss the claim. The applicant G. raises the question of the reversal of the execution of the decision of the Temirtau City Court, issued on August 29, 2013.

In this case, G. was not a defendant, the case was considered in accordance with Chapter 27 of the CPC (in the old version), i.e. in the order of special claim proceedings. According to this decision, the plaintiff did not receive any material benefits from the city or from the defendant, the Department of Justice of the city of Temirtau, and therefore a reversal of the execution of the above–mentioned court decision is not possible.

Judicial acts on the cancellation of this decision and on the dismissal of the case are grounds for the cancellation of the previously registered decision.

In this regard, the ruling of the Temirtau City Court of May 13, 2016, denied G.'s application to reverse the execution of the decision of the Temirtau City Court of August 29, 2013.

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.;

- Civil Code of the Republic of Kazakhstan dated December 27, 1994 No. 268-XIII;

- Civil Code of the Republic of Kazakhstan (Special Part) dated July 1, 1999 No. 409;

- 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 the judicial decision" dated July 11, 2003 No. 5;

- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the application by courts of certain norms of legislation on enforcement proceedings" dated March 31, 2017 No. 1.

 

 

 

 

 

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