Sanctioning of bailiffs' orders.

The authorization of bailiffs' orders by the courts is generally considered correctly, violations of the terms of consideration of decisions have not been established. Article 252 of the CPC regulates the procedure for authorizing decisions of bailiffs. In accordance with part 2 of this article, the materials of the enforcement proceedings confirming the validity of the sanctioned actions are attached to the resolution. Part 4 of this article provides that, having considered the bailiff's decision and the materials of the enforcement proceedings attached to it, the court authorizes the commission of enforcement actions or refuses to give the sanction. The sanction is given by affixing the stamp of the court "I authorize" on the decision of the bailiff, certified by the signature of the judge. In case of refusal to give a sanction, the judge issues a ruling on refusal to give a sanction for carrying out executive actions. The court shall authorize the decision of the bailiff, submitted in the form of an electronic document, by certifying the electronic digital signature of the judge. In case of refusal to grant a sanction, the judge issues a reasoned ruling on refusal to grant a sanction in the form of an electronic document. These requirements of the law mean that the bailiff, in cases prescribed by law, is obliged to issue a resolution on the execution of actions subject to court approval.

Sanctioning of bailiffs' orders.

Whether or not to authorize the bailiff's decision is up to the court. Therefore, the court has the right to refuse authorization if it considers that this is not necessary for objective reasons, as well as if the content of the decision does not meet the requirements of parts one and two of Article 252 of the CPC. Part 5 of Article 252 of the CPC provides for the procedure for appealing decisions. The specified appeal procedure differs significantly from the previously existing appeal procedure. Thus, the decision of the bailiff to carry out enforcement actions, authorized by the court, may be appealed according to the rules provided for in Article 250 of the CPC. Thus, the CPC, as amended on October 31, 2015, established that the parties to the enforcement proceedings (the recoverer, the debtor) who disagree with the bailiff's decision authorized by the court do not appeal the decision, as it was before, but the bailiff's action according to the rules provided for in Article 250 of the CPC. It should be noted that a complaint against the actions of a bailiff can also be considered by the judge who authorized the decision, by analogy with the consideration of objections and complaints by the same judge with the cancellation of judicial acts by writ, simplified (written), correspondence proceedings. The procedure for appealing against a court ruling that was refused to grant a sanction remained the same. A ruling that is refused to grant a sanction is appealed to the court of appeal by filing a private complaint. By virtue of the principle of dispositivity, the parties themselves choose a way to protect the violated rights. The subject of appeal against such a determination is the recoverer, which follows from the meaning of the fifth part of Article 252 of the CPC. Such conclusions are consistent with the provisions of the CPC that judicial acts can be appealed by persons involved in the case whose rights, in their opinion, have been violated. These legal requirements are not always respected. For example, by the ruling of the Specialized Interdistrict Economic Court of Astana dated May 25, 2016, the private complaint of the private bailiff A. against the court's ruling of May 16, 2016 on the refusal to sanction was returned.

When returning the private complaint, the court of first instance correctly assumed that the bailiff was not entitled to appeal the court's ruling on the refusal to authorize the bailiff's decision. On August 19, 2016, the Judicial Board for Civil Cases of the Astana City Court overturned the above ruling and referred it for new consideration to the court of first instance, stating that by virtue of article 14 of the Law on Enforcement Proceedings, the bailiff is a participant in the enforcement proceedings. This position of the court contradicts the provision of article 7 of the Law on Enforcement Proceedings, since the bailiff is the person conducting the enforcement proceedings. The limits of procedural powers are provided for in the said Law. Consequently, this ruling cannot be appealed by the bailiff, since it does not affect his personal interests, but is related to his procedural status. According to paragraph 1 of Article 33 of the Law on Enforcement Proceedings, in case of non-fulfillment by an individual, the head (acting) of a legal entity that is a debtor of claims in the amount of more than twenty monthly calculation indices contained in the enforcement document, as well as in case of non-fulfillment for more than three months of enforcement documents on the collection of periodic payments, the bailiff has the right, and at the request of the recoverer is obliged to issue a resolution on the temporary restriction on the departure of these persons from the Republic of Kazakhstan. The resolution is subject to court approval. A temporary restriction on the debtor's departure is a measure of compulsory enforcement related to the restriction of a citizen's constitutional right to leave the Republic of Kazakhstan. Therefore, before authorizing the decision, the court must require the bailiff to prove that the reasons for non-enforcement of the court's decision are disrespectful. That is, the very fact of non-fulfillment of the court's decision cannot be an unconditional basis for a temporary restriction on the debtor's departure from the Republic of Kazakhstan.

The court must be provided with evidence of the disrespect for the reason why the court's decisions are not being enforced. It has been established that the disadvantage of basically all rulings lies in the fact that bailiffs are not motivated by the need for authorization. The resolutions, as a rule, only state that enforcement proceedings have been initiated, and the debtor has not fulfilled the bailiff's demands within the prescribed period. It is not indicated who is the initiator of this measure (the bailiff or the recoverer), in favor of whom the amount is being recovered, and in what amount. Therefore, those courts that refuse to grant a sanction in this case act lawfully and reasonably. Thus, the state bailiff of the Zhezkazgan territorial department, I., applied for the authorization of a decree banning the debtor M. from leaving the Republic of Kazakhstan, from whom a fine of 9,910 tenge was levied to the state revenue on May 15, 2015. By the decision of the Zhezkazgan City Court, the sanction was refused. This was motivated by the fact that, contrary to the requirements of the law (Articles 240-7 of the CPC in the previous version), the bailiff's decision to authorize travel restrictions did not include the materials of the enforcement proceedings, the motives and grounds for taking the authorized actions were not stated, and there was no statement from the recoverer on the restriction of the debtor's departure. There was also no evidence that the bailiff had taken any measures to execute the judicial act, and the debtor, in the presence of property (movable, immovable), did not execute it for disrespectful reasons. Immediately after the initiation of proceedings, without taking any action, the bailiff appealed to the court. In this case, the authorization of temporary restriction orders was correctly refused due to the lack of real executive actions and the absence of motives and grounds in the decision, which made it necessary to take these authorized actions. The courts correctly refuse to authorize orders to seize the debtor's property, which lack information about the property to be seized, documents confirming the debtor's ownership of this property. On August 12, 2015, the Zhezkazgan City Court, having considered the decision of the private bailiff of the executive district of the Karaganda region, B., to authorize the decision to seize the property of debtor Ch., refused to give the sanction.

Sanctioning of bailiffs' orders.

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