The cancellation of the order to conduct an unscheduled inspection, the conclusion on the results of the unscheduled inspection, the idea of revocation of the license.

No.6001-23-00-6ap/264 dated 08/10/2023

Plaintiff: CHSI B. 176

Respondent: Russian State Institution "Department of Justice of the Region of the Ministry of Justice of the Republic of Kazakhstan"

The subject of the dispute: on the recognition of actions to issue an order for an unscheduled inspection, conclusions on the results of an unscheduled inspection, representations on revocation of a license as illegal, on the cancellation of an order for an unscheduled inspection, conclusions on the results of an unscheduled inspection, representations on revocation of a license.

Review of the plaintiff's cassation appeal.

PLOT: On behalf of the State Institution "Ministry of Justice of the Republic of Kazakhstan" dated June 20, 2022, as part of the received appeal of K.K. in the interests of the recoverers A.A., M.B., A.B., K.A., A.T. in the period from June 24, 2022 to July 8, 2022 on the basis of the order of the Department dated June 23, 2022 No. 501n, an unscheduled control was carried out in relation to the plaintiff in enforcement proceedings for the recovery of wages from LLP "K". On June 29, 2022, the Department issued an opinion on the results of the unscheduled inspection. On July 27, 2022, the Department sent a submission to the Ministry to revoke the plaintiff's license for the right to operate as a private bailiff.

Judicial acts:

1st instance: the claim is returned.

Appeal: the court ruling is upheld.

Cassation: judicial acts were annulled, the case was sent for consideration on the merits to the SMAS.

Conclusions: The conclusion contains the Department's conclusions on the violations identified, in its opinion, by the plaintiff, indicating that it is necessary to send the conclusion to the CSIB for review and elimination of the violations identified by July 20, 2022.

This conclusion did not entail any negative consequences for the individual, bringing him to justice. The conclusion also states that the remaining part should resolve the issue of liability provided for in subparagraph 4) paragraph 2 of Article 144 of the Law of the Republic of Kazakhstan dated April 2, 2010 No. 261-IV "On Enforcement proceedings and the status of Bailiffs" (hereinafter - the Law). The decision to send the submission was made by the Department in accordance with the provisions of article 144 of the Law and paragraph 22 of the Rules.

And according to the explanations of the defendant's representative, the submission in this case is made both in case of elimination and non-elimination of violations by the bailiff. The submission suggests that the authorized body consider the issue of revoking the state license for the right to engage in the activities of a private bailiff of the plaintiff.

As follows from the literal meaning of this wording, the submission does not contain direct authoritative instructions, orders to the Ministry to execute the proposal contained therein or take other measures.

In this situation, a submission submitted by the Department for consideration directly to a higher government agency, an official, does not exercise the rights and obligations of a third party. The submission also does not contain language that restricts, terminates rights, imposes or terminates duties, or otherwise worsens or improves the plaintiff's position.

The submission is not an administrative act of a state body, does not give rise to rights and obligations, but is advisory in nature. It follows that this submission does not meet the above criteria of an onerous administrative act. The revocation of the CSI license for violations committed in the order of compulsory execution of a socially significant category of cases of executive documents is carried out in court.

When the Ministry made a decision on this submission, the city court of the region initiated a civil case on the claim of the Ministry and the Department against the plaintiff for revocation of the license for the right to engage in the activities of a private bailiff.

By a ruling of the city court dated September 19, 2022, the civil case was suspended due to the plaintiff's appeal to the Department for the Enforcement of Judicial Acts of the Ministry with a complaint against the order and the cancellation of the conclusion, as well as the filing of an administrative claim.

From the analysis of the above, it follows that the contested submission is not subject to judicial administrative review for its validity. When assessing the violations contained in the Department's opinion and submission, the outcome of a future court decision on a civil dispute will be determined within the framework of administrative proceedings.

The civil court will give a legal assessment of the contested acts for their legality and validity, which will provide the plaintiff with the right to judicial protection. In addition, according to article 142 of the Law, a CSI license is a permit for the right to engage in activities related to the adoption of enforcement measures and is issued by an authorized body.

The procedure for issuing, suspending and terminating a license is regulated by the provisions of the Law of the Republic of Kazakhstan "On Permits and Notifications", Articles 142-144 of the Law. Based on the provisions of these norms of current legislation, the licensor's decisions related to the issuance, termination or revocation of a license have the characteristics of an administrative act.

In accordance with paragraph 6 of Article 144 of the Law, the decision of the authorized body to terminate or revoke the CSI license may be appealed to the court.

 

 

 

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