Termination of enforcement proceedings for alimony collection due to the debtor's death

 For example, the SCAD of the Supreme Court in cassation considered the case of the claim of Nazipova P.R. to GSI Bukhpantayeva R.S. on the recognition of illegal actions to terminate the IP and its resumption; the obligation to verify the correctness of the calculation and payment of alimony payments for the period from September 1, 2012 to February 9, 2023; the obligation to make a decision on the definition of alimony arrears for the period from September 1, 2012 to February 9, 2023 (6001-24- 00-6ap/900) .ity or when a minor child acquires full legal capacity before reaching the age of majority or the age specified in the agreement on alimony payments; when a child is adopted, for whose maintenance alimony was ordered; when the person receiving alimony or the person obligated to pay alimony dies.

According to Article 340 of the Civil Code, the transfer of rights that are inextricably linked to the creditor's identity, such as claims for alimony and compensation for damages to life or health, is not allowed.

In practice, disputes related to the enforcement of court orders for the collection of alimony often arise, and the issue of determining the amount of debt after the termination of the enforcement proceedings due to the debtor's death arises.

For example, the SCAD of the Supreme Court in cassation considered the case of the claim of Nazipova P.R. to GSI Bukhpantayeva R.S. on the recognition of illegal actions to terminate the IP and its resumption; the obligation to verify the correctness of the calculation and payment of alimony payments for the period from September 1, 2012 to February 9, 2023; the obligation to make a decision on the definition of alimony arrears for the period from September 1, 2012 to February 9, 2023 (6001-24- 00-6ap/900) .The local courts' judgments denying the claim were upheld.

Based on the established circumstances, the enforcement proceedings for alimony were initiated in 2011 and remained active until the debtor's death in 2023, after which the GSI legally terminated the proceedings based on legal provisions explicitly addressing the termination of personal obligations.

In this case, the alimony obligation was strictly personal and inextricably linked to the debtor's identity.

It cannot be transferred or executed by another person, which makes it impossible to continue or recalculate the debt after the debtor's death.

The bailiff, in accordance with the established rules, was not entitled to recalculate the alimony debt or take any measures to determine it, as the enforcement proceedings had already been terminated at the time of the claimant's request.

Therefore, courts should take into account that the termination of an enforcement proceeding on this basis means the loss of legal force for all related obligations and the bailiff's authority.

Formulation of claims

When filing an administrative claim to appeal against the actions (inaction) of bailiffs, the claims are stated in various ways by the claimants.

In general, disputes in the generalized category are considered by filing claims for challenging, for coercion and for the performance of actions (Articles 132-134 of the APPC).

By virtue of Article 132 of the APPC, if the rights, freedoms, and legitimate interests of the plaintiff are violated by an administrative act, the plaintiff has the right to file a claim to challenge the administrative act and demand that it be repealed in its entirety or in part.

If the plaintiff disagrees with the decision made by the bailiff, they can file a claim to have the decision declared unlawful. It is not necessary to file a separate claim to have the actions declared unlawful.

According to Part 2 of Article 84 of the APPC, an unlawful administrative act can be repealed in its entirety or in part.

If the court finds the decree to be unlawful, it will annul the decree.

Return of the claim

Part 2 of Article 138 of the APPC provides for 17 grounds for returning an administrative claim.

Cases of this category are most often returned on the following grounds:

pp.6) of Part 2 of Article 138 of the APPC - the claimant has withdrawn the submitted claim;

subparagraph 9) of part 2 of Article 138 of the Administrative Procedure Code - the parties have entered into an agreement on conciliation, mediation, or dispute resolution through a participatory procedure, and it has been approved by the court;

subparagraph 11) of part 2 of Article 138 of the Administrative Procedure Code - the case is not subject to administrative proceedings;

subparagraph 17) of part 2 of Article 138 of the Administrative Procedure Code - the case is not within the jurisdiction of this court.

The grounds for returning a claim are also provided for in Part 8 of Article 136 of the APC, according to which the failure to file a claim in court within the specified timeframe without a valid reason, as well as the impossibility of restoring the missed deadline for filing a claim in court, are grounds for returning the claim.

Courts do not encounter any difficulties in resolving the issue of returning claims in this category.

However, the implementation of the principle of the active role of the court has significantly increased the number of cases resolved amicably (through the conclusion of an agreement or the withdrawal of a claim).

The period for appealing a court decisionPart four of Article 168 of the APPC provides that an appeal, a request by a prosecutor in administrative cases on challenging the actions (inaction) of bailiffs may be submitted within ten working days from the date of the final decision, which is made no later than ten working days from the date of announcement

 The SCAD of the Supreme Court confirmed the priority of the constitutional and legal interpretation of procedural norms and consolidated the practice ensuring a uniform calculation of the time limits for appeal — from the date of the final decision.

This practice is of systemic importance, as it eliminates contradictions in judicial practice and helps ensure that the parties have a real opportunity to exercise their right to judicial protection in administrative proceedings.

Evidence and proof

The procedure for legal regulation of evidence, factual data that are not admissible as evidence, the subject of proof, and sources of evidence, as well as the collection, research, evaluation, and use of evidence (proof), and other provisions on evidence and proof are determined by the rules of the Civil Procedure Code, with the exception of the specific provisions established by the Code of Civil Procedure (Article 128 of the Code of Civil Procedure).

When appealing the actions of a private security officer to a court, various documents and materials that confirm violations by the private security officer can serve as evidence. It is necessary to establish specific facts that indicate unlawful actions or inaction.

The evidence (executive production, stitched and numbered) includes:

Executive document:

Original or certified copy of the writ or court order on the basis of which the CSI acted.

Decisions of the CSI that are being appealed, with the date and content.

Documents confirming the violations:

Payment receipts, correspondence with the private security service, notifications (reports on the delivery of SMS notifications), witness statements, property valuation reports, inventory reports, inspection reports, non-residence reports, photographs, video recordings, and any other materials that confirm the violation of the applicant's rights and legitimate interests.

Complaints to the judicial authorities or the private security service (if a complaint is filed against the private security service, a copy and responses to the complaint can also be used as evidence)

Witness statements:

Witnesses who can confirm the circumstances of the case are summoned to the court to testify.

Collection of state duty

Plaintiffs in lawsuits on appeal of the action (inaction) of bailiffs from the payment of state duty when filing a lawsuit in court are exempted according to subparagraph 15) of Article 616 of the Code of the Republic of Kazakhstan "On taxes and other mandatory payments to the budget".

In accordance with part 1 of Article 122 of the APPC, issues on the distribution of court expenses are considered according to the rules of the CPC.

According to Part 1 of Article 117 of the Civil Procedure Code, the state fee, from which the plaintiff was exempted, as well as the costs associated with the proceedings, shall be recovered from the defendant, who is not exempted from paying court costs, in full or in proportion to the satisfied part of the claim, to the state treasury.

If the claim is satisfied, the state fee shall be recovered from the bailiff to the local budget in proportion to the satisfied part of the claim.

The state fee rate is calculated according to the rules of subparagraph 8) of paragraph 1 of Article 610 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (0.5 MCI).

Application of procedural coercion measures

In case of violation of procedural legislation during the consideration of the case, procedural coercion measures in the form of imposing a monetary penalty are applied.

In accordance with Article 127 of the Administrative Procedure Code, the court has the right to impose a monetary penalty on a person who abuses their procedural rights or fails to fulfill their procedural obligations, including in cases where evidence is presented or orders are executed in violation of the court's deadline without a valid reason, if this leads to the delay in the administrative case, for each action (or inaction) in the amount of ten monthly calculation indices.

For failure to comply with the court's request, failure to appear in court by a person involved in an administrative case, failure to notify the court in a timely manner, failure to submit a response in a timely manner, failure to comply with the court's orders, violation of the court's rules, and other actions (or inactions) that clearly demonstrate disrespect for the court and (or) the judge, the court may impose a monetary penalty of twenty monthly calculation indices.

For non-compliance with the court's decision, the court's ruling on approval of the parties' agreement on reconciliation, mediation, or dispute resolution through a participatory procedure, the court imposes a monetary penalty on the defendant in the amount of fifty monthly calculation indices, specifying in the same court act the period of no more than one month within which it must be executed.

During the analyzed period, the courts have established a practice of using a procedural coercion measure in the form of imposing a monetary penalty. In the category of disputes on the appeal of the actions (inaction) of bailiffs, the most frequent monetary penalty was imposed on the defendants for the following reasons:

late submission of a review;

late submission of the materials of the enforcement proceedings;

submission of the materials of the enforcement proceedings in full;

failure to appear (or not to connect in online format) at the court session without a valid reason.

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