On postponement, installment plan, change of the method of settlement agreement of the parties

           In accordance with paragraph 1 of Article 76 of the Constitution of the Republic of Kazakhstan and article 21 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as 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.

             For example, in a civil case on the claim of JSC "IC "N" to LLP "A" for the recovery of an insurance premium, the definition of the specialized interdistrict economic court of the Karaganda region dated August 05, 2016 approved a settlement agreement dated August 02, 2016, according to which: the defendant undertakes to pay the plaintiff the amount of debt 479,445 tenge, state duty 368 tenge by transferring them to the plaintiff's settlement account at a time until December 20, 2016 with the possibility of early repayment.

Subsequently, the recoverer of JSC IC N applied to the court with a request to change the method and procedure for executing the court ruling dated August 05, 2016 on approving the settlement agreement by issuing a writ of execution in the case, with reference to the debtor's failure to fulfill its obligations.

The court found that the obligations stipulated by the above-mentioned agreement were not fulfilled by the debtor, which necessitates his recourse to compulsory execution by changing the procedure and method of execution, and issuing a writ of execution.

By the ruling of the specialized interdistrict Economic Court of the Karaganda region dated December 27, 2016, the claimant's application was satisfied.

A writ of execution was issued to recover from LLP "A" in favor of JSC "IC "N" the amount of debt 479,445 tenge, state duty 368 tenge.

About debt payment in US dollars.

For example, JSC "Bank" applied to the court to change the method and procedure for executing the ruling on the settlement agreement of the District Court No. 2 of the Kazybekbiysky district of Karaganda on March 19, 2012 on the above-mentioned claim, under the terms of which the defendants undertook to pay debts to the Bank in the amount of 1,049,279.89 USD in installments over three months. years within the time limits and amounts set by the schedule, and the Bank waived the requirements for the recovery of fines in the amount of $ 33,771.46.

According to part 1 of Article 238 of the CPC, the court that reviewed the case has the right, at the request of the persons participating in the case, based on the property status of the parties or other circumstances, to postpone or delay the execution of the decision, as well as to change the method and procedure for its execution.

From the meaning of the above-mentioned article, this provision of the Law regulates changes in the order and method of execution in case of impossibility or difficulty of execution.

The court concluded that under the terms of the above-mentioned court ruling on the approval of the settlement agreement, the defendants assumed an obligation to pay the debt in US dollars.

Due to the increase in the US dollar exchange rate, which entails an increase in the debt burden for the defendants, the court considered it possible to change the way the court's ruling was executed by replacing the payment currency from the US dollar to tenge at the exchange rate of the National Bank of the Republic of Kazakhstan for 1 US dollar – 282.70 tenge, as stated by the plaintiff.

By the ruling of the District court No. 2 of the Kazybekbiy district of Karaganda dated January 18, 2016, the method of executing the ruling of the District court No. 2 of the Kazybekbiy district of Karaganda dated March 19, 2012 was changed by replacing the dollar payment currency with tenge and establishing an installment repayment of the debt amount of 178,159,451 tenge on November 25, 2015 in the amount of 5,500,000 tenge, from December 24, 2015 to May 25, 2016 monthly on the twenty-fifth day of the month in the amount of 2,500,000 tenge, from June 25, 2016 to October 25, 2016 monthly on the twenty-fifth day of the month in the amount of 3,000,000 tenge.

Also, the courts, taking into account the circumstances of the case, refuse to change the method and procedure for executing the court's ruling approving the settlement agreement.

So, for example, by the definition of the district court no.2 Kazybekbiysky district of Karaganda on January 27, 2015, a settlement agreement was approved between Sh. and Sh., according to which the apartment owners must mutually sell the apartment, while both must seek a buyer, advertise in the media, while the debtor is Sh. he is obliged to provide access to the apartment to a potential buyer or a realtor.

Sh. she applied to the court with a request to change the method and procedure for executing the court's ruling on approving a settlement agreement by selling an apartment In accordance with part 1 of Article 246 of the CPC, 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 for which the state is the recoverer, and (or) at the request of the parties in the enforcement proceedings, to change the method or procedure for its execution, if circumstances arise, making performing executive actions difficult or impossible.

According to paragraph 12 of the 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, 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.

A change in the method and procedure of execution of a court decision is allowed if the recoverer, debtor or bailiff provides evidence that it cannot be executed in the manner and procedure specified in the court decision.

The court found that, on the basis of the writ of execution, the bailiff initiated enforcement proceedings for the enforcement of the terms of the settlement agreement as determined by the court on October 16, 2015 for the joint sale of the apartment.

According to the materials of the enforcement proceedings of the party, in particular Sh. He repeatedly advertised for the sale of the joint apartment of the parties, Sh. no evidence of obstruction on the part of Sh was presented to the court. on the implementation of a joint apartment.

In fact, the recoverer, by changing the method and procedure for executing the court ruling, asks the court to foreclose on the joint property.

The value of this property has not been determined in the framework of the enforcement proceedings. In addition, the court was not provided with evidence of the impossibility of executing the court's ruling on the compulsory execution of the terms of the settlement agreement. In this regard, the court, by ruling on May 19, 2016, refused to satisfy Sh.'s application to change the method and procedure for executing the court's ruling on approving the settlement agreement by selling the apartment.

According to part 4 of Article 240 of the CPC, the court that issued the decision may, at the request of the parties, in the presence of circumstances that make it difficult or impossible to perform executive actions, change the method or procedure for its execution.

Paragraph 4 of the Normative 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 stipulates that for the reasons specified in Article 233 of the CPC, regardless of the period of their occurrence (before or after the issuance of the judicial act), the execution of the judicial act may be postponed, it is overdue or the method and procedure for its execution have been changed, if the judicial act is not enforced in accordance with the procedure provided for in Articles 149 or 236 of the CPC.

Meanwhile, we believe that when considering applications for postponement and installment of the settlement agreement, it is necessary to satisfy applications only if there are legitimate grounds for this, taking into account the provisions of paragraph 7 of the Regulatory Decree of the Supreme Court of the Republic of Kazakhstan dated June 29, 2009 "On certain issues of the execution of judicial acts in civil cases" that the postponement of executive actions actions may not exceed the time limits established by article 39 of the Law on Enforcement Proceedings.

In accordance with paragraph 12 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 29, 2009 "On certain issues of the execution of judicial acts in civil cases", a change in the method and procedure of a settlement agreement is allowed only if the recoverer, debtor or bailiff provides evidence that the method and procedure specified in the court ruling cannot to be executed.

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 Procedure Code of the Republic of Kazakhstan dated July 13, 1999 No. 411 (Expired);

- 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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