Termination of the search for the debtor

           Currently, there is no provision governing the actions of the court to terminate the search.

     Therefore, the courts based their conclusions on the general rules of the Code of Civil Procedure (Articles 268,269) and article 45 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs."

When applying for termination of the search, the internal affairs bodies referred to the Order of the Prosecutor General of the Republic of Kazakhstan dated July 10, 2014 No. 71 "On approval of the Rules for Maintaining and Using Certain types of special records" (hereinafter referred to as the Order).

Paragraph 141 of the Order stipulates that the basis for termination of search cases (de-registration) in respect of fugitives is one of the following documents:

1) the protocol of the detention of the wanted person or the notification of the territorial pre-trial detention center and a special medical institution about the placement of the wanted person;

2) resolution on termination of the criminal case;

3) a resolution on the termination of criminal prosecution against the wanted person;

4) the decision of the prosecutor to cancel the decision on the establishment of a search case;

5) information on the referral of the criminal case by the Prosecutor General's Office of the Republic of Kazakhstan to one of the CIS member states, indicating the date and outgoing number;

6) a court order to terminate the search for a person who has absconded from the court or the debtor/defendant;

7) a document on the identification of a person against whom a preventive measure has been applied that is not related to deprivation of liberty;

8) information on the transfer of a court verdict that has entered into legal force to a foreign country for its subsequent recognition and execution, indicating the date and outgoing number;

9) in respect of debtors/defendants, materials confirming information on the identification of the wanted person and a written explanation of the reasons for his evasion; a court decision declaring the person dead; a court decision to terminate proceedings in the case due to the death of the wanted person; a court ruling to terminate the search for the debtor/defendant; cancellation by a higher court of the decision, except in cases of transfer of the case to a new one consideration; court decision on termination of enforcement proceedings.

According to article 126 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law), the bailiff, in accordance with the procedure established by law, has the right to submit submissions to the court on issues arising during the execution of enforcement actions, including changes in the method and procedure of execution, as well as the search for the debtor based on enforcement documents.

The consideration of the bailiff's submission on the debtor's wanted list is regulated by article 45 of the Law, article 249 of the Civil Procedure Code, and the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003 No. 12 "On Liability for malicious Non-enforcement of judicial acts."

However, the termination of the search for the debtor, the procedure for reviewing materials, persons entitled to apply for termination of the search for the debtor, and the need to involve the prosecutor in the case are not provided for by legislative acts.

There are no legal grounds for their consideration.

From the examples given, it has been established that there is no reference in the definitions to the legal norm governing the termination of the search for the debtor.

The courts apply the general rules of chapter 22 of the Code of Procedure for issuing court rulings, and when considering a bailiff's submission, article 45 of the Law on Enforcement Proceedings is applied.

Thus, according to Article 269 of the CPC of the Republic of Kazakhstan, the definition issued by the court in the conference room must specify:

1) date and place of the ruling;

2) the name of the court that issued the ruling, the surnames and initials of the judge and the secretary of the court session;

3) the persons involved in the case, the subject of the dispute or the stated claim;

4) the issue on which the ruling is being made;

5) the reasons for which the court came to its conclusions, and a reference to the laws that guided the court;

6) the procedural decision of the court;

7) the procedure and time limit for appealing a ruling, if it is subject to appeal.

However, as follows from judicial acts, the courts do not comply with the requirements of this norm.

And it should be noted that non-compliance with the requirements of Article 269 of the CPC RK is caused by objective reasons.

Thus, the law does not regulate who can be a participant in the process when considering materials, what grounds can serve to terminate a search, the need to demand and examine enforcement proceedings, the procedure for appealing such rulings, and there is no legal norm for terminating a search.

It should be noted that consideration of the issue of termination of the search for the debtor at the request of the internal affairs bodies is not regulated by legislative acts. In addition, by the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law), the bailiff, in accordance with the procedure established by law, has the right to submit submissions to the court on issues arising during the execution of enforcement actions, including changes in the method and procedure of execution, as well as the search for the debtor based on enforcement documents.

Consequently, the issue of termination of the search should also be resolved by the bailiff independently without going to court, since these actions do not restrict the rights and freedoms of the debtor, do not impose any obligations on government agencies and other persons. It is to the bailiff that the bodies authorized to carry out the search should inform about their actions on the search, as well as contact them, if there are grounds for that, to terminate the search for debtors.

This conclusion is justified by the fact that the legislator has not assigned the judicial authorities the duty to monitor the execution of rulings on the search for the debtor.

At the same time, the obligation to issue an act on the termination of the search must be fully transferred to the jurisdiction of the bailiffs. Violation of the rights of the parties to the enforcement proceedings will not be allowed, since the actions of the bailiff can be appealed in court.

In accordance with Article 4 of the Civil Procedure Code of the Republic of Kazakhstan, the tasks of civil proceedings are to protect and restore violated or disputed rights, freedoms and legitimate interests of citizens, the state and legal entities, respect for the rule of law in civil turnover and public law relations, promote peaceful settlement of disputes, prevent offenses and form a respectful attitude towards the law and the court in society.

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.;

- 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.

- Order of the Prosecutor General of the Republic of Kazakhstan dated July 10, 2014 No. 71 "On approval of the Rules for Maintaining and using certain types of special accounting".

 

 

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