On enforcement proceedings in Kazakhstan
For the functioning of the judicial system and the system of state power as a whole, it is necessary to properly enforce the decisions of the courts and relevant state authorities. Execution is the most important area of legal practice, reflecting the effectiveness of the entire mechanism of legal regulation and the ability of law to influence the motivation and behavior of a person. A right that is not expressed in the actions of its subjects, even though it is confirmed by a judicial or other act of civil jurisdiction bodies, is non-existent, which reflects the abnormality of such an actual situation.
It should be noted the special role of the institution of private bailiffs, which was introduced in Kazakhstan, thanks to the introduction of this institution, the number of actually executed civil cases has increased.
In accordance with the Code of Civil Procedure of the Republic of Kazakhstan, a civil case must be considered within a period of no more than two months, in cases of challenging the actions of officials no more than a month. According to the Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Enforcement Bailiffs”, enforcement of executive documents by bailiffs must be completed no more than two months from the date of initiation of enforcement proceedings, with the exception of executive documents on periodic penalties, and also except for cases when legislative acts establish other deadlines. According to executive documents related to the demolition of buildings, to the production of technological operations, as well as to executive documents on property recovery, requiring property valuation with the involvement of specialists, the production of an examination, sale, search for the debtor’s property, execution must be completed no more than four months. But in practice, as a rule, enforcement proceedings do not fit within the framework of a two-month period and, as a rule, can last for months and years.
So, the court of first instance made a decision, which entered into force and a writ of execution was issued. The recoverer must first of all apply to the territorial department of bailiffs, or to a private bailiff (at the discretion of the recoverer), write an application to initiate enforcement proceedings and attach the original writ of execution and a copy of the decision certified by the court, if the application is signed by the representative of the recoverer, then you must also attach a copy power of attorney. After that, the bailiff, no later than three working days, initiates enforcement proceedings and takes measures, for which he issues a decision. The bailiff, simultaneously with the initiation of enforcement proceedings, takes measures to ensure the execution of enforcement documents provided for by the Law, and also reveals the existence of other enforcement proceedings against the debtor, in case of detection, notifies the recoverer and explains the order of priority for satisfying his requirements. A writ of execution is presented at the place of registration of the debtor or at the place of his permanent residence, or at the place of his work with the implementation of enforcement actions at the place of presentation, as well as at the place of registration or location of his property. If the debtor is a legal entity, then the writ of execution is presented at the place of registration or the actual location of its body (founder) with the implementation of enforcement actions at the place of presentation, as well as at the place of registration or location of its property. If in the course of enforcement proceedings it turns out that the debtor is not located at the address indicated in the writ of execution, but is located in another administrative-territorial unit, then the state bailiff immediately issues a decision on this and within three working days sends the writ of execution and materials of enforcement proceedings to the address of location the debtor, in turn, the private enforcement agent, in agreement with the recoverer, has the right to travel outside his territorial district.
The bailiff, within three working days from the date of receipt of the writ of execution, issues a decision to refuse to initiate enforcement proceedings, if:
- the enforcement document is presented without a statement from the recoverer or the statement is not signed by the recoverer or his representative, except in cases where enforcement proceedings are subject to initiation without the statement of the recoverer;
- the executive document was not presented at the place where the enforcement actions were performed;
- the term for presenting the enforcement document for execution has expired and has not been restored by the court;
- the document is not executive or does not meet the requirements for executive documents;
- the executive document was previously presented for execution and the enforcement proceedings on it were terminated on the grounds provided for in paragraph 1 of Article 47 of the Law;
- a judicial act, an act of a body (official), which is an executive document or on the basis of which an executive document was issued, has not entered into force, with the exception of executive documents subject to immediate execution;
- the creditor has not deposited the amount necessary for the implementation of enforcement actions to the current account of a private enforcement agent;
- A copy of the judicial act with a mark of entry into force, certified by the signature of the judge and the seal of the court, was not attached to the executive document.
There are also grounds for suspension of enforcement proceedings, which are specified in Article 42 of the Law, the grounds for termination of enforcement proceedings specified in Article 47 of the Law and the return of enforcement documents, Article 48.
Foreclosure on the debtor’s property includes the seizure of property and (or) its forced sale or transfer to the recoverer. Recovery under executive documents is drawn, first of all, on the debtor’s money, including those located in banks and organizations engaged in certain types of banking operations, unless otherwise specified in the executive document. If the debtor does not have sufficient sums of money to pay off the debt, the execution is levied on other movable and immovable property belonging to the debtor. Execution may be levied on the pledged property if the other property of the debtor is insufficient to fully satisfy all the claims made against him that are not secured by a pledge, in compliance with the rights of the pledgee established by the civil legislation of the Republic of Kazakhstan.
When levying execution on the debtor’s share in the common property, the bailiff is obliged to notify the co-owners of the property and grant them the right of first refusal to purchase the debtor’s share in the common property. The cost of the share is indicated in the notice on the basis of a written opinion of a specialist.
In order to ensure the execution of the writ of execution, the bailiff is obliged to seize the property of the debtor, including in cases provided for by law, with the sanction of the court. In this case, the bailiff has the right not to apply the rules of priority for foreclosure on the debtor’s property. The arrest of the debtor’s property consists in a ban on the disposal of this property, as well as announcing a ban on the use and disposal of the debtor’s funds located in banks and other organizations engaged in certain types of banking operations, for which a decision is made to seize the debtor’s property. Seizure of money and other property located in banks and organizations engaged in certain types of banking operations is imposed by a bailiff only with the sanction of a court. Arrest on the money in the debtor’s bank account is imposed in the amount necessary for the execution of the enforcement document, taking into account the enforcement sanction, the costs of enforcement and payment for the activities of a private enforcement agent.
The bailiff shall make an inventory of the debtor’s property in the amount necessary to repay the amount awarded to the claimant, the costs of enforcement and the costs of paying for the activities of a private bailiff. An inventory of property is made in the presence of the debtor and attesting witnesses and with the preparation of a protocol. In the absence of an individual or a representative of a legal entity that is a debtor, who was notified in advance of the performance of enforcement actions, an inventory is drawn up in the presence of attesting witnesses.
When foreclosing the debtor’s property, the sale of this property is carried out in the following order:
- First of all, the debtor’s property that is not directly involved in production is sold, including securities, currency values, precious metals and precious stones, jewelry, vehicles;
- secondarily – finished products (goods), as well as other material assets that are not directly involved and not intended for direct participation in production;
- in the third place – real estate objects, as well as raw materials and materials, machine tools, equipment, other fixed assets intended for direct participation in production;
- in the fourth place – property transferred to other persons under a lease (property lease), loan, rental or other agreements.
The sale of seized property, except for property withdrawn from circulation by law, regardless of the grounds for seizure and types of property, is carried out by a bailiff through trading organizations on a commission basis, as well as at auction in the form of an auction. Bidding in the form of an auction is carried out by a private bailiff independently, and by a state bailiff through a specialized trade organization.
The choice of the form of sale of property is determined by the bailiff, taking into account the type of property.
- up to three hundred monthly calculation indices are sold on a commission basis, with the exception of real estate;
- From three hundred to a thousand monthly calculated indicators are sold at auction in the form of an auction.
An electronic auction sells property subject to state registration and (or) the value of which exceeds one thousand monthly calculation indices.
From the amount collected by the state bailiff from the debtor, the fines imposed on the debtor in the process of execution of the enforcement document are first repaid, after which the costs of enforcement are covered, the rest of the amount goes to satisfy the claims of the claimants, including for the enforcement documents held by other enforcement agents , within the administrative-territorial unit.
If the amount recovered from the debtor is not enough to satisfy all the requirements for enforcement documents, this amount is distributed among the recoverers in the order of priority established by this Law.
The claims of each successive turn are satisfied after the full repayment of the claims of the previous turn. If the collected amount is insufficient to fully satisfy all the claims of one queue, these claims are satisfied in proportion to the amount due to each claimant.
First of all, the requirements for the recovery of alimony are satisfied; claims for compensation for harm caused by injury or other damage to health, as well as in connection with the death of the breadwinner; requirements of employees arising from labor relations.
In the second place, claims for payment of remuneration due to authors for the use of a work, invention, utility model, industrial design for which patents have been issued are satisfied; claims of citizens for compensation for damage caused to their property by a crime or an administrative offense.
In the third place, the claims of creditors for obligations secured by a pledge are satisfied, including remuneration (interest), compensation for losses caused by delay in performance, forfeit (fine, penalty), necessary costs for maintaining the pledged property, as well as reimbursement of the pledgee’s expenses for collection. In the fourth place, the requirements for taxes and other obligatory payments to the budget are satisfied; claims of legal entities for compensation for damage caused by a crime or administrative offense.
In the fifth turn, all other requirements are satisfied.
In addition, the debtor is liable to recover the costs of enforcement actions, which include:
- Identification, inspection, evaluation of the debtor’s property;
- organizing and conducting an inventory and seizure of the debtor’s property, transportation and storage of such property;
- organization of the sale of seized property;
- payment for translators, specialists and other persons involved in the prescribed manner in the commission of enforcement actions;
- transfer (sending) by mail to the recoverer of the recovered amounts;
- bank charges associated with the issuance of recovered amounts from the cash control account and current account;
- debtor search;
- advance payment of the claimant;
- travel of a bailiff when performing enforcement actions on all types of public transport – urban, suburban and local communications (except taxis), including payment of travel expenses of bailiffs;
- other necessary actions in the process of execution of the executive document;
- other remuneration to persons involved by the bailiff in the process of enforcement.
The costs of enforcement actions are recovered from the debtor in favor of the persons or organizations that incurred these costs.
The state bailiff after the full execution of the executive document offers the debtor to voluntarily pay the enforcement sanction to the state revenue in the amount of ten percent of the amount collected or the value of the property or ten monthly calculation indices from individuals and twenty monthly calculation indices from legal entities under non-property enforcement documents.
In the event of the debtor’s refusal, the state bailiff shall recover the enforcement sanction on the basis of the issued decision on the recovery of the enforcement sanction from the debtor.
For non-execution of the executive document, the debtor may be held administratively or criminally liable. One of the main novelties in the Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Enforcement Bailiffs” was the introduction of an amendment stating that in the event of untimely execution by the debtor of the requirements of an enforcement document of a property nature, the enforcement agent has the right to apply to the court for the recovery of a fine from the debtor to the income of the recoverer in the amount of 0, 1 percent of the amount of the recovery or the value of the property to be transferred, for each day of delay from the moment of initiation of enforcement proceedings. The introduction of liability for late repayment of funds into the legislation will make it possible to discipline debtors and will increase the number of enforced court decisions.