Stages of Initiating Enforcement Proceedings
Typical mistakes made by enforcement officers at the stage of initiating enforcement proceedings include:
- Incorrect calculation of the time limit for submitting an enforcement document for compulsory execution;
- Initiation of enforcement proceedings in violation of territorial jurisdiction rules;
- Non-compliance of the enforcement document with the requirements of the Law on Enforcement Proceedings.
An enforcement officer initiates enforcement proceedings on the basis of an enforcement document.
Article 9 of the Law on Enforcement Proceedings provides an exhaustive list of enforcement documents.
This list is not subject to broad interpretation.
The time limits for submitting enforcement documents for execution are regulated by Article 11 of the Law on Enforcement Proceedings.
A missed deadline may only be restored by the court that issued the judicial act or by the court at the place of execution.
The time limit for submitting an enforcement document for execution is interrupted by:
- Submission of the enforcement document for execution;
- Partial execution of the enforcement document by the debtor, which must be noted by the enforcement officer on the enforcement document;
- The period during which the debtor is being searched for.
After the interruption, the time limit begins to run anew; however, the time that elapsed before the interruption is included in the new period.
Based on the literal interpretation of this provision, in order to calculate the time limit for submission for execution, it is necessary to determine all periods of interruption from the date of the initial submission for execution.
For example, by a court ruling dated December 9, 2016, an agreement between G. and A. was approved, under which A. undertook to repay a debt owed to a fund. On October 20, 2021, a private enforcement officer initiated enforcement proceedings upon the fund’s application.
In declaring the initiation of enforcement proceedings unlawful, the courts concluded that the time limit for submitting the writ of execution under the Agreement had expired in 2019. Furthermore, the fund was not entitled to submit the writ of execution for enforcement. The cassation court found the conclusions of the lower courts justified and the judicial acts lawful (case No. 6001-22-00-6ап/537).
Previously (before the amendments to the Law on Enforcement Proceedings dated January 10, 2020), an interruption effectively “reset” the limitation period for submission for execution. Under the current version of the Law, the time elapsed before the interruption is included in the new period.
Therefore, when calculating the time limit for submitting a writ of execution for enforcement, it is necessary to take into account the entire period during which the enforcement document was not under compulsory execution, starting from the date the writ of execution was issued.
There are cases where a private enforcement officer incorrectly calculates the time limit for submitting an enforcement document for execution. For example, by a court decision dated November 25, 2014, a dispute concerning the division of marital property was resolved. On April 17, 2015, the court issued a writ of execution. Due to errors in the writ, the claimant received a corrected writ of execution on June 29, 2018. Enforcement proceedings were initiated on June 25, 2021.
In this case, the private enforcement officer had no grounds to initiate enforcement proceedings because the time limit for submission for compulsory execution had expired (case No. 6001-22-00-6ап/318).
To avoid errors in calculating the time limits for submitting enforcement documents for execution, the Regulatory Resolution of the Supreme Court “On the Application by Courts of Certain Provisions of Legislation on Enforcement Proceedings” should clarify the procedure for calculating the periods under Article 11 of the Law on Enforcement Proceedings.
The enforcement officer is also obliged to verify whether the debtor was given sufficient time for voluntary compliance.
Debtors often argue that such a period was not provided.
According to paragraph 1-1 of Article 11 of the Law on Enforcement Proceedings, enforcement documents may be submitted for compulsory execution no earlier than five working days after the judicial act enters into legal force, except for documents specified in subparagraph 4) of paragraph 1 of this Article.
These time limits are mandatory, and their violation results in a refusal to initiate enforcement proceedings.
For example, on October 1, 2021, a notary issued a notarial writ for the recovery of debt from LLP 1 in favor of LLP 2. The writ was handed over to the creditor on October 18, 2021, and on the same day it was submitted to a private enforcement officer for execution.
By a resolution dated October 19, 2021, the private enforcement officer initiated enforcement proceedings and applied compulsory enforcement measures.
In granting the claim for cancellation of the resolution initiating enforcement proceedings, the courts concluded that the debtor had not been provided with a period for voluntary compliance with the requirements of the notarial writ. The period should be calculated starting from the day following the date on which the writ was delivered to the creditor (case No. 6001-22-00-6ап/276).
Article 38 of the Law on Enforcement Proceedings establishes the enforcement officer’s right and the grounds for refusing to initiate enforcement proceedings.
The enforcement officer must verify the existence of such grounds before initiating enforcement proceedings.
When considering disputes concerning the legality of initiating enforcement proceedings or refusing to initiate them, the following circumstances must be examined:
- Compliance of the enforcement document with legal requirements;
- Observance of the submission period (taking into account interruption periods);
- The debtor’s registered address, residence, and workplace;
- The existence of registered property owned by the debtor;
- The legal status of the debtor (composition of founders/shareholders, state participation).
In practice, enforcement officers often apply compulsory enforcement measures simultaneously with the initiation of enforcement proceedings.
Chapter 5 of the Law on Enforcement Proceedings provides for compulsory enforcement measures.
The basis for applying compulsory enforcement measures is an enforcement document accepted by the enforcement officer into his or her proceedings.
Below is the English translation of the text:
Enforcement Measures
Enforcement measures are divided into the following categories:
- Measures to secure the enforcement of enforcement documents (Article 32 of the Law on Enforcement Proceedings);
- Temporary restriction on leaving the Republic of Kazakhstan imposed on an individual debtor or the head (acting head) of a legal entity debtor (Article 33 of the Law on Enforcement Proceedings);
- Temporary restrictions related to the issuance and validity of licenses, permits, and special rights (Article 34 of the Law on Enforcement Proceedings).
Typical mistakes made by enforcement officers include:
- Disproportionate application of enforcement measures;
- Violation of deadlines for imposing enforcement measures;
- Untimely or unlawful cancellation of imposed measures.
As a result, disputes and problematic issues arise both when parties disagree with the application of enforcement measures and when there is a need to lift such measures upon the completion of enforcement proceedings.
For example, a debtor successfully challenged enforcement measures in court. On May 26, 2021, a private enforcement officer initiated enforcement proceedings to recover a debt from an LLP in favor of an LLC. On August 19, 2021, the enforcement document was returned at the request of the creditor. However, the private enforcement officer failed to cancel the imposed enforcement measures (asset seizure and travel restriction). The courts held that there were no legal grounds for maintaining the enforcement measures (Case No. 6001-22-00-6ап/541).
Article 32 of the Law on Enforcement Proceedings provides for measures securing enforcement aimed at preserving the debtor’s property from which the claims contained in the enforcement document may subsequently be satisfied.
The procedure for lifting securing measures is governed by Article 47 and paragraph 6 of Article 48 of the Law.
The Law provides for two forms of termination of enforcement proceedings: termination and return of the enforcement document.
Pursuant to paragraph 1 of Article 48 of the Law on Enforcement Proceedings, an enforcement document under which recovery has not been made or has been made only partially shall be returned to the creditor by resolution of the enforcement officer in the following cases:
- At the creditor’s request;
- If the debtor has no property, including money, securities, or income against which recovery may be levied, and all measures provided by law to identify such property or income have been unsuccessful, except in cases involving confiscation of property;
- If all enforcement measures provided by law with respect to a non-monetary enforcement document have proven ineffective;
- If the creditor refuses to retain the debtor’s property that remained unsold during enforcement;
- If the creditor refuses to deposit advance payments into the current account of the private enforcement officer intended for the storage of recovered funds necessary to cover enforcement expenses;
- If the debtor ceases to exist (death of an individual, reorganization of a legal entity, transfer of debt) at the time of enforcement, the enforcement officer shall return the enforcement document without execution and explain the creditor’s right to apply to the court for the establishment of a legal successor and replacement of the debtor, except as otherwise provided by law;
- If, during enforcement, it is established that the debtor has moved abroad for permanent residence, unless the debtor’s property is located within the Republic of Kazakhstan;
- If there are grounds for the recusal of a private enforcement officer specified in paragraph 1 of Article 54 of the Law.
The return of an enforcement document results in the completion of enforcement proceedings; therefore, there are effectively no active enforcement proceedings against the debtor.
However, the return of an enforcement document does not automatically entail the cancellation of measures securing enforcement. In resolving this issue, the requirements of Articles 32, 33, and 48 of the Law on Enforcement Proceedings must be strictly observed.
Article 33 of the Law establishes the grounds for lifting a temporary travel restriction.
A temporary restriction on leaving the Republic of Kazakhstan imposed on an individual debtor or the head (acting head) of a legal entity debtor shall be lifted within one working day in the following cases:
- Termination of enforcement proceedings;
- Absence of debt under enforcement proceedings involving periodic payments;
- Return of the enforcement document without execution at the request of the court or other authority that issued the document;
- Application of the creditor, except in cases involving recovery in favor of the state;
- Change of the head of the debtor legal entity, except where the head is the sole founder (participant) of the legal entity;
- Cancellation of the enforcement officer’s resolution initiating enforcement proceedings.
According to Part 1 of Article 10 of the Administrative Procedural and Process-Related Code (APPC), when exercising administrative discretion, an administrative body or official must ensure a fair balance between the interests of the participant in the administrative procedure and those of society. Administrative acts, actions, or omissions must be proportionate, that is, suitable, necessary, and proportionate to the objective pursued.
Article 31 of the Law on Enforcement Proceedings regulates the application of enforcement measures. This provision states that a writ of execution serves as the basis for applying coercive measures. If the writ is no longer in the enforcement file, the debtor is entitled to demand the cancellation of enforcement measures.
However, enforcement measures are not subject to cancellation in all cases where a writ of execution has been returned.
Pursuant to paragraph 1-1 of Article 99 of the Law on Enforcement Proceedings, due to the specific nature of enforcing child support orders, securing measures may be lifted only if there are no outstanding arrears in child support or other periodic payments.
A similar requirement applies to lifting travel restrictions under Article 33 of the Law on Enforcement Proceedings. Under this provision, a temporary restriction on leaving the Republic of Kazakhstan imposed on an individual debtor shall be lifted within one working day only where there is no outstanding debt under enforcement proceedings concerning periodic payments.
For example, the Judicial Panel for Administrative Cases of the Supreme Court overturned the decisions of lower courts in this regard. By court order, N. was required to pay child support to A. for the maintenance of a minor child. On November 12, 2013, a state enforcement officer initiated enforcement proceedings. By resolution dated February 21, 2020, the enforcement document was returned to the creditor at the latter’s request. At that time, the outstanding debt amounted to KZT 7,230,364. Since the debt had not been repaid and the resolution determining the debt remained unenforced, the defendant had no legal grounds to cancel the securing measures. Accordingly, the panel found the defendant’s refusal to lift such measures lawful (Case No. 6001-22-00-6ап/551).
Thus, enforcement measures in child support enforcement proceedings are subject to cancellation only if there is no outstanding debt.
Enforcement officers must thoroughly verify the existence of grounds for lifting enforcement measures in socially significant enforcement proceedings, such as those involving child support, wages, and other periodic payments.
According to paragraph 3 of Article 76 of the Constitution of the Republic of Kazakhstan, judicial acts that have entered into legal force are binding on all state bodies, local self-government bodies, legal entities, officials, and citizens, and are enforceable throughout the territory of the Republic of Kazakhstan.
The purpose of enforcement proceedings is to ensure the actual restoration of violated or disputed rights and legally protected interests.
Appealing against the actions (or omissions) of an enforcement officer constitutes a form of judicial control within enforcement proceedings, aimed at protecting the rights and interests of the parties involved.
Main Regulatory Legal Acts Governing Enforcement Proceedings
- Constitution of the Republic of Kazakhstan;
- Administrative Procedural and Process-Related Code (APPC);
- Civil Code (CC);
- Civil Procedure Code (CPC);
- Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Enforcement Officers”;
- Law of the Republic of Kazakhstan “On Valuation Activities in the Republic of Kazakhstan”;
- Regulatory Resolution of the Supreme Court No. 1 dated March 31, 2017, “On the Application by Courts of Certain Provisions of Legislation on Enforcement Proceedings”;
- Regulatory Resolution of the Supreme Court No. 12 dated December 19, 2003, “On Liability for Failure to Execute Judicial Acts”;
- Rules approved by Order No. 100 of the Minister of Justice of the Republic of Kazakhstan dated February 20, 2015;
- Resolution of the Government of the Republic of Kazakhstan No. 437 dated May 4, 2014, “On Approval of the Remuneration Rates for the Activities of Private Enforcement Officers.”
Abbreviations Used
- APPC – Administrative Procedural and Process-Related Code of the Republic of Kazakhstan;
- CPC – Civil Procedure Code of the Republic of Kazakhstan;
- CC – Civil Code of the Republic of Kazakhstan;
- Law on Enforcement Proceedings – Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Enforcement Officers”;
- RRSC – Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan;
- Rules – Rules for the Sale of Seized Property, Including Through Electronic Auctions;
- AIAS – “Törelik” Automated Information and Analytical System of the Judicial Authorities of the Republic of Kazakhstan;
- JPAC SC – Judicial Panel for Administrative Cases of the Supreme Court of the Republic of Kazakhstan;
- JPAC (Panel) – Judicial Panel for Administrative Cases;
- SIAC – Specialized Interdistrict Administrative Court;
- JD – Department(s) of Justice;
- SEO – State Enforcement Officer(s);
- PEO – Private Enforcement Officer(s).
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