The costs of performing executive actions and their reimbursement

 

A private bailiff independently finances his activities.

In accordance with subparagraph 7) of article 3 of the Law on Enforcement Proceedings, enforcement proceedings are carried out on the principle of reimbursement at the expense of the debtor of the costs of enforcement of the enforcement document.

According to article 114 of the Law on Enforcement Proceedings, the costs of performing enforcement actions are collected from the debtor in favor of the persons or organizations that incurred these costs.

The debtor has the right to apply to the court with a statement challenging the bailiff's decision to recover the costs of performing enforcement actions with a claim for postponement or installment of their recovery, for reduction of their amount or exemption from collection (paragraph 5 of Article 114 of the Law on Enforcement Proceedings).

The most common grounds for filing claims at this stage of execution are:

incorrect calculation of the activity payment amount;

incorrect calculation of the actual expenses incurred;

approval of the amount of payment for activities outside the framework of enforcement proceedings.

This interest in revoking the resolution is also dictated by the fact that the executive documents include:

- resolution on the recovery of an enforcement sanction;

- the decision of the bailiff on reimbursement of expenses incurred during the execution of enforcement actions;

- resolution of a private bailiff approving the amounts of payment for his activities.

In the event of a lack of payment, they entail the initiation of enforcement proceedings with the use of enforcement measures.

In accordance with article 118 of the Law on Enforcement Proceedings, payment for the activities of a private bailiff is made within the framework of enforcement proceedings at the expense of the debtor, except in cases provided for by this Law, and is set at an amount from three to twenty-five percent, depending on the category of cases and the amount of recovery, with limits of no more than ten thousand monthly settlement indicators.

The methodology for calculating the costs of enforcement proceedings is approved by the authorized body.

In practice, there are cases when payment is made bypassing the bailiff, but within the framework of the initiated enforcement proceedings.

If a dispute arises about the voluntary fulfillment of a requirement of an enforcement document, the following circumstances should be checked:

proper notification of the debtor on the initiation of enforcement proceedings;

enforcement measures taken by the bailiff (seizure of funds, property, etc.);

the period when the enforcement document is being enforced.

Due to the literal interpretation of the provisions of the Law on Enforcement Proceedings, presentation for execution implies no intention of voluntary execution.

Payment of the bailiff's activities and the costs of performing enforcement actions is a consequence of the debtor's bad faith.

The fulfillment of the requirements of the enforcement document during the period of enforcement proceedings entails the obligation of the debtor to pay for the services of the bailiff and the costs of performing enforcement actions.

The debtor's execution of an enforcement document, bypassing a private bailiff, does not exempt him from paying the actual costs incurred for the execution and payment for the activities of a private bailiff.

For example, to confirm the voluntary fulfillment of non-property requirements (for removal from the social networknetworks of personal data of the claimant) the debtor provided video recordings. However, no such evidence was provided before the initiation of enforcement proceedings. The enforcement proceedings were initiated on the basis of the sent writ of execution. The actual execution was recorded by the CSI within the framework of the initiated enforcement proceedings (6001-22-00-6ap/612).

The voluntary execution of a judicial act before the initiation of enforcement proceedings must be confirmed by acceptable and reliable evidence.

Disputes also arise regarding the procedure for reimbursement of expenses incurred to pay for the activities of the bailiff in the event of cancellation of the decision of the relevant authority, on the basis of which the enforcement document was issued after the termination of enforcement proceedings.

When considering this category of disputes, the following circumstances are subject to verification::

proper notification of the debtor of the initiation of enforcement proceedings and familiarization with the materials of enforcement proceedings;

the date of initiation of enforcement proceedings, the date of its termination and the date of cancellation of the decision of the relevant body on the basis of which the enforcement document was issued;

proper notification of the bailiff about the cancellation of the decision or the filing of a corresponding objection by the debtor.

In case of cancellation of the relevant decision after the actual execution and termination of enforcement proceedings, the debtor has the right to apply for a reversal of the execution of the court decision (if the writ of execution is issued on the basis of a judicial act) or with a civil claim for recovery of losses incurred. At the same time, the recoverer of the enforcement proceedings acts as the defendant.

In accordance with paragraph 6 of article 48 of the Law on Enforcement Proceedings, enforcement measures are subject to cancellation in cases where the recoverer has reimbursed the actual execution costs incurred and paid for the activities of a private bailiff.

Disputes also arise over the procedure for collecting these expenses. Often, the claimants do not agree with the above calculation of the actual costs incurred, pointing out the lack of documentary evidence.

For example, before full execution, the recoverer has withdrawn the enforcement document, and enforcement proceedings are over. However, the CSI approved the amount of payment for his activities based on the full amount of the penalty. This decision was declared illegal by the courts and annulled (6001-22-00-6ap/219).

A similar situation was allowed by the CSI in several enforcement proceedings. Thus, 32 enforcement documents on the recovery of amounts in favor of the bank were under execution in the CSI proceedings.  All enforcement documents have been revoked by the recoverer. The CSI refused to return the writ of execution, citing the need to pay for its activities. At the same time, he approved the amount of payment for his activities in the amount of 10%, 15%, 20% of the amount owed under the executive documents. All resolutions were declared illegal (6001-22-00-6ap/371).

By virtue of article 119 of the Law on Enforcement Proceedings, prior to the initiation of enforcement proceedings, the recoverer, on the instructions of a private bailiff, is obliged to deposit into the current account intended for storing the recovered amounts in favor of the recoverers, the amount necessary for the implementation of enforcement actions. Upon initiation of enforcement proceedings, a private bailiff may appoint a later deadline for the claimant to deposit this amount. If, during the enforcement proceedings, the funds deposited into the current account intended for storing the collected amounts in favor of the recoverers are insufficient to carry out further enforcement actions, the recoverer, on the instructions of a private bailiff, is obliged to deposit an additional amount into the specified current account.

In the context of the above-mentioned CSI RP, it is recommended to provide for the introduction of a minimum wage for the activities of the CSI.

ANALYSIS of the Supreme Court of the Republic of Kazakhstan on the judicial practice of considering administrative cases challenging decisions, actions (inaction) of bailiffs for the second half of 2021 and the first half of 2022.

 

 

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