Changing the method and procedure for executing a court decision (replacing the debtor or recoverer)

    In accordance with article 238 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the court that reviewed the case and issued a decision has the right, at the request of the persons participating in the case, based on the property status of the parties or other valid reasons, to postpone or delay the execution of the decision, as well as to change the method and procedure for its execution.

The court shall consider and resolve an application, petition for postponement, installment plan, or change in the method and procedure for executing a court decision within ten working days from the date of receipt of the application to the court.

These applications are considered at a court hearing. The persons participating in the case are notified of the time and place of the meeting. The failure of these persons to appear is not an obstacle to resolving the issue brought before the court.

The court's ruling on the issue of postponement or installment of execution of the decision, on changing the method and procedure for its execution may be appealed or protested.

It should be noted that the provisions of article 238 of the CPC apply to decisions that are not enforceable.

In accordance with Article 246 of the CPC RK, the court that issued the decision or court order in the case, as well as the court at the place of execution of the decision, may, at the request of the state bailiff for enforcement proceedings in which the state is the recoverer, and (or) at the request of the parties in the enforcement proceedings, change the method or procedure for its execution, at the request of the parties in enforcement proceedings, delay or delay the execution of a court decision if circumstances arise that make the execution of enforcement actions difficult or impossible.

The petition of the state bailiff or the statement of the parties in the enforcement proceedings are considered in court session. The persons participating in the case are notified of the time and place of the meeting, but their non-appearance is not an obstacle to the resolution of the petition or application.

The court shall consider the application, the petition for changing the method and procedure of its execution within ten working days from the date of receipt of the application to the court. A court ruling on changing the method and procedure for its execution may be appealed or protested in accordance with the procedure established by part three of Article 238 of this Code.

In accordance with paragraph 12 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 6 dated June 29, 2009 "On certain issues of the execution of judicial acts in civil cases", a change in the method and procedure for the execution of a court decision means replacing the method and procedure specified in the court decision with another method and procedure that protects the legitimate rights and interests of the claimant.

In enforcement proceedings, situations arise when, for some reason, it is impossible to fulfill a requirement in the manner it is formulated in the enforcement document. For example, a court decision on the recovery of property from someone else's illegal possession indicates which specific property the defendant is obliged to transfer, as well as the value of this property.

However, at the time of the actual execution of the court decision, the defendant may not have this property in kind (we are talking about both the physical loss of property and the deliberate actions of the defendant to transfer it to third parties for various legal reasons).

When changing the order and method of execution of a judicial act, unlike postponement or installment of execution of a judicial act, in which the deadline for execution of a judicial act changes, the content of enforcement actions changes when one type of execution cannot be implemented and requires replacement with another, since there are circumstances that make it difficult to execute the judicial act.

At the same time, a change in the method or procedure of a court decision cannot be justified solely by a violation of the debt repayment schedule.

The provisions of Article 246 of the CPC apply to decisions subject to enforcement. From the meaning of Article 246 of the CPC, it follows that the right to apply to the court with a request to change the method and procedure for executing a decision belongs to the state bailiff in enforcement proceedings for which the state is the recoverer.

In all other cases, the parties to the enforcement proceedings have such a right. Some courts believe that the bailiff has the right to apply to the court simply with a representation on this issue, since he is given such a right by a special law (articles 40, 126 of the Law on Enforcement Proceedings, article 249 of the CPC).

By virtue of paragraph 1 of subparagraph 5 of Article 126 of the Law on Enforcement Proceedings, the bailiff, in accordance with the procedure established by law, has the right to submit submissions to the court on issues arising during the performance of enforcement actions, including on the subject of changing the method and procedure of execution.

A literal interpretation of this provision shows that it provides for such a right in accordance with the procedure established by law.

The procedure established by law is provided for in Article 246 of the CPC, and Article 249 of the CPC provides for procedural issues, namely, what the submission should contain, the time frame for its consideration, the notification procedure, etc.

In order to avoid ambiguous interpretation of these legislative acts, the Supreme Court of the Republic of Kazakhstan recommended that the Ministry of Justice bring articles 40, 126 of the Law on Enforcement Proceedings into line with the requirements of Article 246 of the CPC, or initiate amendments and additions to Article 246 of the CPC.

Replacement of the recoverer in enforcement proceedings, due to the assignment of the right of claim.

In accordance with Article 53 of the CPC, in cases of withdrawal of one of the parties in a disputed or decided legal relationship (assignment of a claim, transfer of debt and other cases of change of persons in a material legal relationship), the court allows the replacement of this party by its legal successor.

Thus, by the ruling of the Glubokovsky District Court of the East Kazakhstan region dated October 26, 2016, the application of "P" LLP to replace the claimant in the enforcement proceedings was satisfied.

The court found that on November 21, 2012, a factoring agreement was concluded between JSC "Bank" and LLP "P", under the terms of which the bank ceded the right to claim debt, remuneration and any other payments to LLP.

It follows from the case file that by a court order of the Glubokovsky District Court of the East Kazakhstan region dated July 28, 2010, it was ordered to collect from M. in favor of JSC Bank the debt in the amount of 179,156 tenge, court costs in the form of a state fee.

By virtue of the legal regulation established by paragraph 2 of Article 17 of the Law "On Enforcement Proceedings and the Status of Bailiffs", succession is established at the request of the recoverer in accordance with the civil legislation of the Republic of Kazakhstan.

Taking into account the above norms of substantive law and procedural law, the court granted the application, the recoverer of JSC "Bank" was replaced by LLP "P".

Replacement of the claimant in view of his death.

In accordance with article 1061 of the Civil Code of the Republic of Kazakhstan, first of all, the testator's children, including those born alive after his death, as well as the testator's spouse and parents, receive equal shares of inheritance by law.

By the ruling of the Zhambyl District Court of the Zhambyl region dated December 23, 2016, D.'s application to replace the claimant with his legal successor was satisfied.

It was established that by the decision of the Zhambyl district Court of the Zhambyl region dated September 02, 2008, the amount of debt in the amount of 655,628 tenge and court costs were recovered from T. in favor of A.

             By the decision of bailiff S. dated May 05, 2016, after partial execution, the enforcement document was returned due to the death of the claimant A. on January 29, 2016.

The remaining outstanding amount is 361,577 tenge. In accordance with Article 1061 of the Civil Code, D. is the heir of the first line after the death of A., which is confirmed by the marriage certificate.

After A.'s death, an inheritance was opened in the form of a half share in real estate. D.'s ownership of the specified property was registered on November 03, 2016.

According to Article 1038 of the Civil Code, inheritance is the transfer of the property of a deceased citizen (testator) to another person (persons).- to the heir(s).

The right to file a claim for the recovery of the remaining debt on the writ of execution is not related to the identity of the deceased and is not personal, therefore it is part of the inheritance property and may be inherited.

Consequently, in connection with the registration of the inheritance, the acceptance of the inheritance opened after the death of the claimant A. by virtue of the requirements of Article 1072 of the Civil Code, D. is the legal successor and the right to demand repayment of the remaining amount of debt from the debtor T. belongs to her.

Taking into account the above, the court, by the decision of the Zhambyl District Court of the Zhambyl region of September 02, 2008 on the recovery of the amount of debt from T. in favor of A., as part of the enforcement proceedings, replaced the recoverer A. with his legal successor D.

The submission of a private bailiff to change the method and procedure of execution of the decision has been satisfied. By the ruling of the Abai District Court of Shymkent dated January 27, 2016, the submission was satisfied, foreclosure was levied on the debtor's property.

It was established that by the decision of the Abaysky District Court of December 25, 2014, the amount of debt of 10,934,425 tenge and court costs were collected from the defendants B. and M. in favor of JSC Bank in solidarity.

The bailiff applied to the court with the idea of changing the method of execution of the decision by foreclosing on the pledged property belonging to B., arguing that there was no other way to execute the court decision.

During the execution, it was established that there was no property other than the mortgaged property belonging to B. for the execution of the court decision.

In the materials of the enforcement proceedings, there is information about the debtors' lack of sufficient funds to execute the court decision. Debtors themselves periodically promise to comply with the court's decision, but they do not take effective measures for this.

Thus, the execution of the decision, due to the debtors' lack of funds, is not possible, therefore, the court changed the method and procedure for executing the decision by foreclosing on a residential building and a land plot.

The ruling of the court of first instance on changing the method and procedure for executing a court decision has been changed

So, A. applied to the court with a request to change the method and procedure for executing the court decision of August 05, 2015 by foreclosing on real estate owned by the spouses (A. and K).

He motivates his claims by the fact that by the decision of the Lisakovsky City Court of August 05, 2015, the property was divided, all household ownership was assigned to the debtor K. However, due to the debtor's lack of funds to compensate her for the value of a half share of the property in the amount of 2,757,241 tenge, the decision is not enforced.

By the ruling of the court of first instance dated May 12, 2016, A.'s application to change the method and procedure of execution by foreclosing on the property of the spouses and selling it at auction: two residential buildings and outbuildings, with a total value of real estate - 5,514,482 tenge, was satisfied.

Disagreeing with the ruling of the court of first instance, debtor K., in a private complaint, asked for the ruling to be revoked, pointing out that the parties to the enforcement proceedings were not unequal and that K.'s rights had been grossly infringed, pointing out that A. had an apartment in personal ownership acquired by her before marriage.

At the same time, K. sold his apartment during the marriage and invested all his funds and personal labor in common ownership, namely, the acquisition of one and the construction of a second house, of which, in relation to the old apartment building and the bathhouse, he raised the issue of transferring this property to him and excluding this property (the old house and bathhouse) from the inventory of the foreclosed property.

The court unreasonably ignored the arguments of debtor K. about the possibility of dividing the property of the spouses into two independent objects, where one of them, built by the spouses during the marriage, can be sold through bidding in order to pay the amount of compensation due to the recoverer.

In this case, the second house will be the housing of the debtor, since there is no other housing. unlike his wife, who owns an apartment acquired before marriage with K., the college, based on the principle of reasonableness and fairness, changed the definition regarding foreclosure on a residential building owned by the spouses with a total area of 65.9 sq.m. and subject to exclusion from the objects of sale at auction. The rest of the definition is left unchanged.

Thus, when considering applications for changing the procedure and method of executing a court decision, it is necessary to correctly identify and clarify the range of circumstances relevant to the case, correctly establish the circumstances of the case, the court's conclusions must correspond to the established circumstances, the dispute must be resolved in compliance with the requirements of substantive and procedural law on the basis of comprehensively and fully researched submitted by the parties. evidence.

             The conducted generalization revealed that the courts, when considering an application for changing the procedure and method of executing a court decision, need to correctly identify and clarify the range of circumstances relevant to the case, correctly establish the circumstances of the case, the court's conclusions should correspond to the established circumstances, and the dispute should be resolved in compliance with the requirements of substantive and procedural law on the basis of comprehensively and fully researched evidence provided by the parties.

In order to eliminate them, the courts should more thoroughly clarify the circumstances of the case, the rights and obligations of the parties, verify the validity of their arguments and objections, give a proper legal assessment of the evidence collected and resolve disputes in accordance with the requirements of the law. In order to ensure a uniform direction of judicial practice in strict accordance with the requirements of the law, it is necessary to regularly analyze the judicial practice of amended and cancelled cases by higher authorities.

There is a need to introduce amendments and additions to regulatory rulings in order to ensure a uniform direction of judicial practice. The Law does not establish criteria for postponing or suspending the execution of a court decision or changing the method and procedure for executing a court decision.

Therefore, in each specific case, the court must determine for itself whether there is really a need to change the method and procedure for executing a court decision. At the same time, the court must take into account the interests of both the debtor and the recoverer, their property status and other noteworthy circumstances of the case, as indicated in the reasoning part of the ruling.

    Regulatory legal framework.

- The Constitution of the Republic of Kazakhstan dated August 30, 1995;

- The Civil Procedure Code of the Republic of Kazakhstan dated October 31, 2015 No. 377-V SAM.;

- Civil Code of the Republic of Kazakhstan (Special Part) dated July 1, 1999 No. 409;

- The Law of the Republic of Kazakhstan "On Enforcement proceedings and the status of bailiffs" dated April 2, 2010 No. 261-IV;

- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the execution of judicial acts in civil cases" dated June 29, 2009 No. 6 (effective during the generalization period, subsequently expired on March 31, 2017);

- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the application by courts of certain norms of legislation on enforcement proceedings" dated March 31, 2017 No. 1.

 

 

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