Revocation of the state license
On July 20, 2022, the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan, consisting of: presiding judge N.K., judges Sh., R., with the participation of a representative of the plaintiff B.M., defendant A.K., having considered in open court using mobile videoconference a civil case on the claim of the state institution "Ministry" to a private to the bailiff A.K. about the deprivation of the state license, received at the request of A.K. on the revision of the decision of the District court of September 6, 2021, the decision of the Judicial Board for Civil cases of November 24, 2021,
The Ministry State Institution (hereinafter referred to as the Ministry) filed a lawsuit against the private bailiff (hereinafter referred to as the CSI) A.K. for revocation of the license.
By the decision of the district court of September 6, 2021, which was left unchanged by the decision of the judicial board for Civil Cases of November 24, 2021, the Ministry's claim was satisfied.
In the petition, A.K. asks the judicial acts that took place in the case to cancel, to make a new decision to dismiss the claim due to the inconsistency of the court's conclusions with the circumstances of the case, and the improper application of substantive law.
After hearing A.K.'s explanations in support of the petition, the objections of the plaintiff's representative, and examining the materials of the civil case, the judicial board of the Supreme Court (hereinafter referred to as the judicial board) comes to the following conclusion.
In accordance with part 5 of Article 438 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the grounds for cassation review of judicial acts that have entered into force are significant violations of substantive and procedural law that led to the issuance of an illegal judicial act.
Such violations were committed during the consideration of the case.
In the case, it was established that the Department (hereinafter referred to as the Department), based on the complaint of LLP "A", conducted an unscheduled monitoring of the activities of the CHSI A.K.
According to the results of the review, according to the conclusion of the Department dated February 10, 2021, violations were established in two enforcement proceedings, namely, the recovery from LLP "A" in favor of LLP "C" of the amount of debt and penalties and debt collection in favor of LLP "D".
According to the specified enforcement proceedings of the CHSI A.K., the enforcement documents were executed and payment for the activities of the CHSI in the total amount of 2,220,798 tenge was collected.
The Department submitted a submission to the Ministry regarding the revocation of the license of CHSI A.K.
The Ministry justified the requirements in this case by referring to subparagraph 1) of paragraph 2 of Article 144 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter - The Law), according to which, in addition to the general grounds provided for by the laws of the Republic of Kazakhstan, the revocation of the license of a private bailiff is carried out in court at the request of an authorized body in cases of repeated (two or more times within six consecutive calendar months) violations of the legislation of the Republic of Kazakhstan when performing executive actions, including those that harm the interests of the state, individuals and legal entities.
Satisfying the requirement of the Ministry, the local courts proceeded from the fact that LLP "A" is an affiliated company of the Ministry, therefore, the executive documents in relation to this Partnership had to be executed by state bailiffs, which indicates that CHSI A.K. had committed repeated violations of the legislation of the Republic of Kazakhstan.
The Judicial Board believes that it is impossible to agree with the conclusions of the judicial authorities, since they were made when incorrectly defining and clarifying the range of circumstances relevant to the case, and, as a result, incorrectly applying the norms of substantive law.
In accordance with subparagraph 2) paragraph 1 of Article 138 of the Law, all executive documents provided for in this Law are accepted for execution by a private bailiff, with the exception of executive documents on recovery from a legal entity, fifty percent or more of the voting shares (participation shares in the authorized capital) of which belong to the state and affiliated legal entities.
In accordance with Article 166 of the Entrepreneurial Code of the Republic of Kazakhstan, affiliated entities of legal entities with more than fifty percent of shares (shares in the authorized capital) owned by the state are understood to be legal entities in which more than fifty percent of shares (shares in the authorized capital) are owned directly or indirectly by legal entities, more than fifty percent of shares (shares participation in the authorized capital) which belong to the state.
The case established that the sole founder of LLP "A" is JSC "K", 100% founder of which is the State Institution "Committee". The Ministry is a government agency exercising the right to own and use a 100% state-owned stake in JSC "K".
In such circumstances, the courts came to the correct conclusion that JSC "K" is a state-affiliated legal entity and owns 100% of the share capital of LLP "A". Consequently, the private bailiff was not entitled to accept enforcement documents on debt collection from LLP "A".
By virtue of Part 2 of Article 76 of the CPC, the circumstances established by a court decision or decision that entered into force in a previously considered civil case are binding on the court. Such circumstances are not proven again in other civil cases involving the same persons.
However, the circumstances established by the court and the conclusions of the court regarding any circumstances are not identical concepts. Therefore, the local courts correctly assessed the defendant's arguments regarding the court's decision of June 15, 2021.
At the same time, it follows from the case materials that, in addition to referring to the court decision of June 15, 2021 and a different interpretation of subparagraph 2) of paragraph 1 of Article 138 of the Law, A.K. explained that private bailiffs, when initiating enforcement proceedings, check the debtor in the database "Automated Information System of Enforcement Authorities" (hereinafter AIS OIP). When he initiated enforcement proceedings to collect debts from LLP "A", when checking in the AIS IP database in the section "information about the legal entity", the form of ownership is indicated as "private property", the state's share in the authorized capital is not indicated.
However, this was not taken into account by the courts, this circumstance was not included in the subject of evidence and did not receive a legal assessment by the courts, and the plaintiff did not refute the defendant's arguments.
In the court of cassation, the plaintiff's representative could not provide a clear explanation of how the bailiff, having access only to a special database designed for the work of enforcement authorities – AIS IPR, can verify the existence of a share of the state or an affiliated legal entity in the authorized capital of the debtor.
The arguments of the plaintiff's representative that if A.K., in accordance with article 37 of the Law, had revealed the existence of other enforcement proceedings against the debtor through the state automated information system of enforcement proceedings, he would have been able to make sure that all of them were initiated by state bailiffs, are not convincing.
Thus, from the conclusion on the results of an unscheduled inspection dated February 10, 2021, conducted by the Department on the complaint of LLP "A", it follows that in 2018-2020, enforcement proceedings against LLP "A", in addition to A.K., were mistakenly initiated by at least five more private bailiffs. This circumstance once again confirms the defendant's arguments that the AIS IP database does not contain the necessary information regarding legal entities with a state-owned share in the authorized capital or persons affiliated with it.
In addition, it follows from the case file that CHSI A.K. enforcement proceedings to recover debts from LLP "A" in favor of LLP "C" and LLP "D" were initiated on December 2, 2020 and December 11, 2020, respectively, which the debtor was promptly notified of. Enforcement proceedings were terminated on December 15, 2020 in connection with the full execution of enforcement documents.
Consequently, as early as December 2020, LLP "A" was aware of the initiation of enforcement proceedings by a private bailiff, but the debtor did not promptly notify the bailiff of the existence of grounds for refusing to initiate enforcement proceedings in accordance with subparagraph 2) paragraph 1 of Article 138 of the Law. The debtor applied to the court with a complaint against the actions of the CSI only in April 2021.
Thus, the violations committed by CHSI A.K. when initiating enforcement proceedings against the debtor of LLP "A" were caused, among other things, by his lack of reliable information about the existence of restrictions on the initiation of enforcement proceedings, which, in turn, was due to the imperfection of the functioning of a special database designed for the work of enforcement authorities. production – AIS IPO.
Considering the degree of CHSI A.K.'s guilt in the committed violation, the judicial board concludes that there are no sufficient grounds for applying to him such a measure of responsibility as revocation of a license.
In view of the above, the judicial acts that took place in the case are subject to cancellation with the issuance of a new decision to dismiss the claim.
According to Part 3 of Article 109 of the CPC, if the courts of appeal or cassation instances change what has taken place or make a new decision without referring the case for a new hearing, they accordingly change the distribution of court costs when the party submits evidence of the costs incurred to the relevant courts.
In accordance with paragraph 4 of Article 108 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget (Tax Code)", the refund of the amount of the state duty to the taxpayer in whose favor the court decision to collect the state duty from the state institution that is a party to the case is made by the tax authority on the basis of the tax application submitted by the taxpayer and the the court's decision entered into force.
Since the plaintiff is a state institution, the refund to the defendant of the state fee paid in the court of cassation in the amount of 730 tenge is subject to the rules of the specified norm of the Tax Code.
Guided by subparagraph 8) of part 2 of Article 451 of the CPC, the judicial board DECIDED:
The decision of the district court of September 6, 2021 and the decision of the judicial board for civil cases of November 24, 2021 in this case to cancel, to make a new decision, which in the claim of the State Institution "Ministry" to the private bailiff A.K. to revoke the state license of a private bailiff to refuse.
To satisfy A.K.'s petition.
To refund the state duty in the amount of 730 (seven hundred and thirty) tenge according to the rules of Article 108 of the Code of the Republic of Kazakhstan "On Taxes and other mandatory payments to the budget (Tax Code)".
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.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
