On the recognition of illegal actions of the CSI on the initiation of enforcement proceedings

No. 6001-23-00-6ap/749 dated August 2, 2023

Plaintiff: T.D.

Defendant: HSI T.

Interested parties: S.A., S.K.

The subject of the dispute: on the recognition of illegal actions on the issuance of decisions on the initiation of enforcement proceedings, on the recognition of illegal actions expressed in the execution of the enforcement document.

Review of the cassation complaints of the plaintiff and the person concerned.

PLOT: T.D. and S.A. have a child together, S.M., born in 2015. The marriage between the spouses has been dissolved, and the child lives with his mother. On October 20, 2022, the bailiff initiated enforcement proceedings against S.A. on the basis of a writ of execution dated August 18, 2022, which established the procedure for communicating with the child: every first and third Saturday and Sunday of the month from 10.00 to 19.00 hours, in the absence of the mother in the city, etc. to provide remote video communication through WhatsApp applications.", "Skype" every Monday, Wednesday and Friday from 20.00 to 20.30 hours.

On the same day, enforcement proceedings were initiated against S.K. on the basis of a writ of execution dated December 9, 2021, which established the procedure for communicating with the child: the first Friday, Saturday and Sunday of each month from 10 a.m. to 7 p.m. in the absence of the defendant, etc. on the territory of the district, from August 10 to August 25 annually on the territory of the city of Almaty at the place of residence of S.K. in the absence of Etc. On October 20, 2022, upon request from the automated information system of the enforcement authorities, the place of permanent registration of the plaintiff was established in the city, district "A", Mustafina Street, house 15/1, apartment 205.

By the ruling of the specialized interdistrict juvenile Court of the city dated October 27, 2022 and November 22, 2022 on the above-mentioned enforcement proceedings, the method and procedure of execution were changed by changing the place of communication of interested persons with the child from the territory of the district to the territory of the city "In". Etc. She filed a lawsuit with the court, arguing that the defendant had unlawfully initiated enforcement proceedings, since they had not been initiated at the place of execution specified in the court decision, and the bailiff had also unlawfully drawn up acts on departure to the plaintiff's place of residence and an act of remote communication between the claimant S.A. and the child. Judicial acts: 1st instance: the claim is partially satisfied.

Actions of the defendant on the preparation of acts dated November 5, 2022, November 6, 2022 on enforcement proceedings No. 801/22-71-4086 , acts of November 4, 2022, November 5, 2022, November 6, 2022 on enforcement proceedings No.802/22-71-4086 , as well as the actions expressed in the November 16 execution 2022, November 18, 2022, Executive Document No.7530/21-00-2/932-1 recognized as illegal.

The rest of the claim was denied.

Appeal: the court's decision is upheld.

Cassation: judicial acts are upheld.

Conclusions: Partially satisfying the claim, the local courts came to the reasoned conclusion that the drafting of the judicial acts of November 16 and 18, 2022, contrary to the requirement to suspend enforcement proceedings within one day in case of their claim by the court, is a violation of subparagraph 13) of Article 42 of the Law.

By virtue of part 5 of Article 241 of the CPC, one executive document is issued for each court decision. The enforcement document is issued to the recoverer or, upon his application, is sent by the court for execution to the appropriate judicial authority or to the regional chamber of private bailiffs for territorial jurisdiction. The defendant initiated enforcement proceedings only in terms of determining the procedure for communication between the persons concerned and the child.

The refusal of local courts to satisfy the plaintiff's claims to declare the initiation of enforcement proceedings illegal due to the simultaneous indication of non-property claims and the collection of representation expenses and state fees in the writ of execution is justified.

Consequently, the conclusions of the local courts on the satisfaction of the claim are partially legitimate and justified.

 

 

 

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