On challenging the decisions of a private bailiff

No. 6001-24-00-6ap/839 dated March 04, 2025

Plaintiff: M.N.

Defendant: HSI

The subject of the dispute: challenging the rulings.

Review of the plaintiff's cassation complaint PLOT:

Under the bank loan agreement dated February 7, 2007, the debtor received a bank loan in the amount of 1,000,000 tenge for 36 months.

By the decision of the district court of the city dated April 28, 2010, the amount of debt in the amount of 1,285,811 tenge was recovered from M.N. in favor of the Bank.

By the ruling of the district court of the city dated June 28, 2017, the claimant was replaced from the Bank to the LLP. The last organization has transferred the rights of claim to collect debts from M.N. On July 26, 2023, the defendant of the CHSI issued a resolution on the initiation of enforcement proceedings under the above-mentioned court decision, at the time of initiation, the remaining debt amounted to 467,131 tenge.

On August 8, 2023, the CSI foreclosed on the debtor's wages and other income.

The plaintiff, appealing to the court with this administrative claim, motivated the demands by the fact that the deadline for submitting the enforcement document for execution had expired.

Judicial acts:

1st instance: the claim was denied.

Appeal: the decision of the court of first instance remains unchanged.

Cassation: the decision of the appeal was overturned, the case was sent for a new hearing to the court of appeal.

Conclusions: the objectives of administrative legal proceedings are the effective protection and restoration of not only violated, but also disputed rights, freedoms and legitimate interests of individuals and legal entities in public relations.

Moreover, the principle of fairness is a fundamental principle of administrative justice.

On August 10, 2015, the district court of the city issued a duplicate writ of execution.

On March 14, 2016, May 8, 2016, and August 14, 2017, enforcement proceedings were initiated by various CSIS, and subsequently the writ of execution was returned each time at the request of the claimant.

By the Law of the Republic of Kazakhstan No. 349-VI SAM dated June 26, 2020

"On Amendments and additions to certain legislative acts of the Republic of Kazakhstan on improving enforcement proceedings and criminal legislation" (effective from July 10, 2020, hereinafter referred to as the Law of June 26, 2020), paragraph 2 of Article 12 of the Law was amended.

The new version states that after the break, the term begins again, while the time elapsed before the break is counted in the new term.

Prior to the amendments and additions, the wording of the Law was in effect until June 26, 2020, which stated that after the break, the term begins again, while the time elapsed before the break is not counted in the new term.

The local courts considered that at the time of presentation of the enforcement document, the period from the last refund, without taking into account the interruption of the deadline, until June 2020, is counted for collection.

The local courts proceeded from the fact that the writ of execution, prior to the initiation of enforcement proceedings by the defendant, had been in the production of another CSI since August 24, 2019 and returned to the claimant on February 28, 2023.

According to the local courts, from that date, the calculation of a new three-year deadline for the submission of a writ of execution began, which had not expired at the time of the initiation of enforcement proceedings by the bailiff on July 26, 2023.

The judicial board found this conclusion of the local courts to be erroneous, since the bailiff, when initiating enforcement proceedings, must be guided by the norms of the Law in force at the time of the decision, which stipulate that after the break, the term begins again, while the time elapsed before the break is counted in the new term.

The writ of execution, according to which enforcement proceedings have been initiated, was issued pursuant to the decision of the district court of April 28, 2010, which entered into force on May 20, 2010.

Subparagraph 1) of paragraph 1 of Article 11 of the Law provides that enforcement documents may be submitted for compulsory execution - court orders and writ of execution issued on the basis of judicial acts - within three years.

According to subparagraph 1) of paragraph 2 of Article 11 of the Law, the time limits for the submission of writ of execution are calculated for the execution of writ of execution issued on the basis of judicial acts regarding property penalties - from the day following the entry into force of the judicial act.

In accordance with paragraph 2 of Article 12 of the Law, the deadline for submitting an enforcement document for execution is interrupted.:

presentation of the enforcement document for execution;

partial execution of the enforcement document by the debtor, about which the bailiff makes a note in the enforcement document;

for the period of the debtor's search.

By virtue of paragraph 2 of Article 11 of the Law, after the break, the term begins again, while the time elapsed before the break is counted in the new term.

Local courts have not taken sufficient measures to comprehensively, fully and objectively clarify the circumstances relevant to the case, the norms of procedural law have been incorrectly applied, the principles have not been respected, and the goals and objectives of administrative proceedings have not been achieved.

These violations are significant, which entails the cancellation of the contested decision of the appellate instances with the referral of the case for a new hearing to the court of appeal.

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