Recognition of illegal and cancellation of the resolution, imposition of the obligation to refund funds, recognition of illegal inaction and imposition of the obligation to return the executive document

No.6001-23-00-6ap/2217 of February 05, 2025

Plaintiff: D.B.

Defendant: HSI

The subject of the dispute: the recognition of the illegal and cancellation of the resolution, the obligation to refund funds, the recognition of illegal inaction and the obligation to return the executive document.

Review of the defendant's cassation complaint PLOT:

On April 11, 2017, the CSI initiated enforcement proceedings to recover jointly and severally with K.S., S.V., K.M. in favor of D.B. the amount of material damage in the amount of 35,400,000 tenge.

Subsequently, the specified enforcement proceedings were transferred to the production of CHSI E.D.

On March 20, 2024, the plaintiff sent an application to the CSI for the return of the enforcement document without execution and the cancellation of enforcement measures against K.S.

On the same day, the CSI issued a resolution on the return of the enforcement document without execution and a resolution approving the amounts of payment for the activities of a private bailiff in the amount of 2,832,000 tenge.

On March 29, 2024, the plaintiff paid for the bailiff's activities in the amount of 2,832,000 tenge.

Judicial acts:

1st instance: the claim is satisfied.

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

Cassation: judicial acts are upheld.

Conclusions: it has been established that payment for the activities of a private bailiff is made at the expense of the debtor's funds.

However, by the contested resolution, the CSI assigned the payment of the activities of a private bailiff in the amount of 2,832,000 tenge (8% of the total amount owed 35,400,000 tenge) to the recoverer, while the defendant did not collect the amounts for enforcement proceedings, and he did not take measures to enforce the enforcement document.

The local courts, satisfying the plaintiff's claims, were motivated by the fact that the CHSI issued a resolution approving the amounts of payment for his activities in the absence of supporting documents on partial or full fulfillment of the requirements of the executive document. Unlawfully imposed the obligation to pay for his activities on the recoverer, in violation of the law on enforcement proceedings, he did not return the enforcement document to the recoverer.

In this regard, the local courts reasonably declared illegal and annulled the decision of the CSI dated March 20, 2024.

In addition, the defendant, having received on March 20, 2024, the claimant's application for the return of the enforcement document, did not make a refund, in violation of subparagraph 1) of paragraph 1 of Article 48 of the Law.

Thus, the defendant's inaction, expressed in the failure to return the enforcement document to the recoverer, is illegal.

The defendant's arguments about the violation by local courts of his rights and legitimate interests in terms of receiving amounts of payment for the activities of the Civil Protection Service are untenable, since neither full nor partial recovery of amounts in enforcement proceedings was carried out by the defendant, and his reference to substantiate the legality of his actions to subparagraph 1) of paragraph 6 of Article 48 of the Law is not valid, on the grounds that This provision regulates the cancellation of measures to secure a claim in the event of partial execution of an enforcement document, which in this particular case was not the case.

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