Authorizing the bailiff's order

The introduction of the new Code of Civil Procedure of the Republic of Kazakhstan meets the objectives of the ongoing judicial and legal reform and will allow for positive legal and socio-economic consequences, increase the effectiveness of the consideration of civil cases by the courts, which can positively affect the quality of the administration of justice and further strengthen the independence of the judiciary, strengthen guarantees of the rights of participants in civil proceedings, ensure openness and transparency legal proceedings.

The modernization of civil procedure legislation makes it possible to ensure effective judicial protection of the constitutional rights and freedoms of individuals and legal entities by increasing its efficiency.

The main regulatory legal acts regulating issues in the consideration of cases in this category are the Constitution of the Republic of Kazakhstan, the Code of Civil Procedure of the Republic of Kazakhstan, the Civil Code of the Republic of Kazakhstan, the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law on Enforcement Proceedings), the Law of the Republic of Kazakhstan "On Banks and Banking Activities in Of the Republic of Kazakhstan".

According to the requirements of paragraph 3 of Article 76 of the Constitution of the Republic of Kazakhstan and in accordance with Article 21 of the CPC, judicial acts that have entered into force are binding on all State bodies and their officials, individuals or legal entities to whom these judicial acts relate.

The execution of judicial acts is the final stage of civil proceedings and determines the effectiveness of justice in the State.

The purpose of enforcement proceedings is to ensure the real restoration of violated or disputed rights.

In accordance with paragraph 3 of Article 76 of the Constitution of the Republic of Kazakhstan and Article 21 of the CPC, judicial acts that have entered into force are binding on all officials of state bodies, as well as individuals and legal entities to whom these judicial acts relate.

Judicial acts are subject to voluntary or compulsory execution. The voluntary execution of a judicial act means that the debtor, prior to the initiation of enforcement proceedings, independently provides the recoverer with the execution prescribed by the judicial act.

The enforcement of a judicial act means that the bailiff, in accordance with the Law "On Enforcement Proceedings and the Status of Bailiffs," commits actions against the debtor's will that are necessary for the execution of the judicial act. The execution of a court decision is carried out in accordance with the Law "On Enforcement Proceedings and the Status of Bailiffs."

The execution of a court decision is carried out by a bailiff (private, public) on the basis of an enforcement document. The execution of judicial acts is the final stage of civil proceedings and determines the effectiveness of justice in the State.

The purpose of enforcement proceedings is to ensure the effective restoration of violated or disputed rights or legally protected interests. The authorization of the bailiff's decision, reviewed in 2015, was regulated by Article 240-7 and the provision of Chapter 18 of the CPC (in the old version).

In connection with the adoption of the new CPC, the authorization of the bailiff's order is regulated by Article 252 CPC.

According to subparagraph 1 of paragraph 2 of article 32 of the Law on Enforcement Proceedings, measures to ensure the execution of enforcement documents are the seizure of the debtor's property, including money and securities held by him or other individuals and legal entities.

In accordance with the requirements of article 62 of the Law on Enforcement Proceedings, in order to ensure the execution of the enforcement document, the bailiff is obliged to seize the debtor's property, including in cases provided for by law, with court approval. The decision on the execution of executive actions subject to authorization is submitted by the bailiff to the court.

The resolution is accompanied by the materials of the enforcement proceedings confirming the validity of the adoption of the authorized actions. Having considered the decision of the bailiff and the materials of the enforcement proceedings attached to it, the court authorizes the commission of enforcement actions or refuses to give the sanction.

Thus, in its content, an interim measure must comply with the material and legal requirements, ensure the suppression of possible actions of the debtor that may be committed by him in order to make it difficult or impossible to execute a judicial act and should not lead to a violation of the legitimate rights and interests of third parties.

During the study and analysis of the materials, it was established that the authorization of bailiffs' orders by the courts is generally considered correctly, violations of the terms of consideration of decisions have not been established.

According to the rules of Article 252 of the CPC of the Republic of Kazakhstan, the procedure for authorizing bailiffs' orders is regulated. According to the requirements of part 2 of Article 252 of the CPC, a decision subject to court approval is submitted by the bailiff to the court, and the materials of the enforcement proceedings confirming the validity of the authorized actions are attached to the decision. Part 3 of Article 252 of the CPC RK stipulates that the decision of the bailiff must be considered by the court on the day the materials are received by the court.

Part 4 of this article stipulates 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. Otherwise, the judge issues a ruling on the refusal to authorize the execution of 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 decision on refusal to grant a sanction in the form of an electronic document.

Thus, based on the semantic content of the specified rule of procedural law, the bailiff, in cases established by law, is obliged to issue a resolution on the performance of executive actions subject to court approval.

The court, having checked the legality and validity of the bailiff's executive actions, decides whether to authorize the bailiff's actions or refuses to do so.

The court refuses to authorize if it finds that this is not necessary for objective reasons, as well as if the content of the resolution does not meet the requirements of parts 1-2 of Article 252 of the CPC RK. Part 5 of the Article of the CPC RK defines the procedure for appealing decisions provided for in Article 250 of this Code.

Consequently, the procedure for appealing decisions differs significantly from the previously existing procedure for appealing.

Based on the above circumstances, the CPC, as amended on October 31, 2015, provided that the parties to the enforcement proceedings (the recoverer, the debtor), in case of disagreement with the decision of the bailiff authorized by the court, may appeal not the decision, as previously, but the actions of the bailiff according to the rules provided for in Article 250 of the CPC.

Thus, one of the ways to protect the rights of the recoverer and the debtor in enforcement proceedings is to appeal against the illegal actions (inaction) of the bailiff or the refusal to perform actions related to the execution of judicial acts by filing a complaint with the court.

It is necessary to pay attention to the fact that a complaint against the actions of a bailiff can also be considered by the judge who authorized the decision, that is, in this case, the norms of procedural law provide for an analogy in the consideration of cases with the cancellation of judicial acts by writ, simplified, correspondence proceedings. Part 5 of the same article provides for the procedure for appealing a court ruling in the event of a refusal to authorize a decision to carry out enforcement actions, it may be appealed or protested to the court of appeal, whose decision is final.

The procedure for appealing a court ruling that has been refused a sanction remains the same. In accordance with the requirements of article 7 of the Law on Enforcement Proceedings, the application of enforcement measures for the execution of enforcement documents listed in article 9 of this Law is assigned to bailiffs.

Thus, the bailiff is the person carrying out the enforcement proceedings.

In such circumstances, the position of the court of first instance of the Aktobe region on the return of private complaints of bailiffs against judicial acts on refusal to authorize enforcement actions corresponds to the above-mentioned rule of procedural law, because the court's ruling on refusal to authorize does not affect the personal interests of bailiffs.

Authorizing the bailiff's order to seize the debtor's property

According to the requirements of paragraph 1 of Article 62 of the Law on Enforcement Proceedings, in order to ensure the execution of the enforcement document, the bailiff is obliged to seize the debtor's property with court approval in cases provided for by law.

According to the rules of paragraph 2 of Article 63 of the Law on Enforcement Proceedings, after making sure that the property belongs to the debtor, the bailiff includes it in the inventory, depending on the amount of the penalty, imposes an arrest on all or part of the property and sends the decision on the seizure to the relevant state registration authorities.

At the same time, an inventory of immovable property is not carried out. The specified requirements of the Law are not fulfilled by bailiffs.

Despite this, the courts authorize the decision of bailiffs to seize the debtor's property. On July 26, 2016, by a decree of a private bailiff of the executive district of the Kyzylorda region of the city of Kyzylorda, the property belonging to debtor E. was seized, which was sanctioned by the court on the same day.

From the content of the above-mentioned resolution, it can be seen that the private bailiff in the introductory part referred only to paragraph 1 of Article 10, paragraph 4 of Article 37, articles 62, 126 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the status of bailiffs".

According to paragraphs 6 and 7 of the regulatory decree of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of legislation on enforcement proceedings by courts", when determining the ownership of property to the debtor, the bailiff must include it in the inventory and seize all or part of the property, depending on the amount of the penalty. These actions are performed by the bailiff without applying to the court with a request to change the method and procedure for executing the court decision.

Thus, bailiffs, in order to ensure the execution of a court decision, issue an order to seize the debtor's property, and in this case, an application for a change in the way the court decision is executed is not required.

According to sub-paragraphs 1,4,5,6 of paragraph 2 of Article 32 of the Law "On Enforcement Proceedings and the Status of Bailiffs", the bailiff is obliged to take measures to ensure the execution of enforcement documents.

Measures to ensure the execution of enforcement documents are:

1) seizure of the debtor's property, including money and securities held by him or other individuals or legal entities (including banks and organizations engaged in certain types of banking operations, as well as insurance organizations).

The bailiff takes measures to ensure the execution of enforcement documents with the approval of the court, obtained in accordance with the procedure established by the civil procedure legislation. There are no controversial issues of jurisdiction during the study of the materials. The practice has developed as follows: the authorization of a bailiff's order is considered by the courts at the place where the enforcement actions were performed.

The conducted generalization showed that some courts accept private complaints against the courts' decision to refuse to grant a sanction, and the appellate instance considers these private complaints on their merits. Meanwhile, the subjects of the appeal against the court's ruling on the refusal to grant a sanction are the participants in the enforcement proceedings.

By virtue of article 14 of the Law on Enforcement Proceedings, the bailiff is not a participant in the enforcement proceedings, but is the person conducting the enforcement proceedings (Article 7 of the Law on Enforcement Proceedings), therefore, complaints from bailiffs in accordance with part four of Article 407 of the CPC RK are subject to return.

The Law regulates in sufficient detail the grounds and procedure for ensuring the execution of an enforcement document by giving a sanction.

As the results of the generalization have shown, the courts verify the compliance of the performed actions of the bailiff with the requirements of the Law. In most cases, the courts refuse to authorize due to the failure to submit enforcement proceedings, or due to the absence of supporting documents in the enforcement proceedings regarding the ownership of the debtor's property.

There are cases when bailiffs, when sending a resolution to the court for giving a sanction, do not indicate the date of their decision, which also serves as a reason for refusing authorization.

 

 

 

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