The costs of performing enforcement actions and their reimbursement by the bailiff
A private bailiff independently finances his activities.
In accordance with subparagraph 7) of Article 3 of the Law on Enforcement Proceedings, enforcement proceedings are carried out on the principle of reimbursement at the expense of the debtor of the costs of enforcement of the enforcement document.
According to article 114 of the Law on Enforcement Proceedings, the costs of performing enforcement actions are collected from the debtor in favor of the persons or organizations that incurred these costs.
The debtor has the right to apply to the court with a statement challenging the bailiff's decision to recover the costs of performing enforcement actions with a claim for postponement or installment of their recovery, for reduction of their amount or exemption from collection (paragraph 5 of Article 114 of the Law on Enforcement Proceedings).
The most common grounds for filing claims at this stage of execution are:
incorrect calculation of the activity payment amount;
incorrect calculation of the actual expenses incurred;
approval of the amount of payment for activities outside the scope of enforcement proceedings.
This interest in the cancellation of the renewal is also dictated by the fact that the executive documents include:
- resolution on the recovery of an enforcement sanction;
- the decision of the bailiff on reimbursement of expenses incurred during the execution of enforcement actions;
- the resolution of the private bailiff on the approval of the amounts of payment for his activities.
The absence of payment entails the initiation of enforcement proceedings with the use of enforcement measures.
In accordance with article 118 of the Law on Enforcement Proceedings, payment for the activities of a private bailiff is made within the framework of enforcement proceedings at the expense of the debtor, except in cases provided for by this Law, and is set at three to twenty-five percent, depending on the category of cases and the amount of the penalty, with limits of no more than ten thousand monthly calculated indicators.
The methodology for calculating the costs of enforcement proceedings is approved by the authorized body.
In practice, there are cases when payment is made bypassing the bailiff, but within the framework of the initiated enforcement proceedings.
If a dispute arises about the voluntary fulfillment of a requirement of an enforcement document, the following circumstances should be checked:
proper notification of the debtor on the initiation of enforcement proceedings;
enforcement measures taken by the bailiff (arrest of funds, property, etc.);
the period when the enforcement document is under compulsory execution.
Due to the literal interpretation of the norms of the Law on Enforcement Proceedings, presentation for execution implies the absence of intention for voluntary execution. Payment for the activities of the bailiff and the costs of performing enforcement actions is a consequence of the debtor's bad faith.
The fulfillment of the requirements of the enforcement document during the period of enforcement proceedings entails the obligation of the debtor to pay for the services of the bailiff and the costs of performing enforcement actions.
The debtor's execution of an enforcement document, bypassing a private bailiff, does not exempt him from paying the actual costs incurred for the execution and payment for the activities of a private bailiff.
For example, to confirm the voluntary fulfillment of non-property requirements (for removal from the social networknetworks of personal data of the claimant) the debtor provided video recordings.
However, no such evidence was provided before the initiation of enforcement proceedings.
The enforcement proceedings were initiated on the basis of the sent writ of execution. The actual execution was recorded by the CSI within the framework of the initiated enforcement proceedings (6001-22-00-6ap/612).
The voluntary execution of a judicial act before the initiation of enforcement proceedings must be confirmed by acceptable and reliable evidence.
Disputes also arise regarding the procedure for reimbursement of expenses incurred to pay for the activities of the bailiff in the event of cancellation of the decision of the relevant body, on the basis of which the enforcement document was issued after the termination of enforcement proceedings.
When considering this category of disputes, the following circumstances are subject to verification::
proper notification of the debtor of the initiation of enforcement proceedings and familiarization with the materials of enforcement proceedings;
the date of initiation of enforcement proceedings, the date of its termination and the date of cancellation of the decision of the relevant body on the basis of which the enforcement document was issued;
proper notification of the bailiff about the cancellation of the decision or the filing of a corresponding objection by the debtor.
In case of cancellation of the relevant decision after the actual execution and termination of enforcement proceedings, the debtor has the right to apply for a reversal of the execution of the court decision (if the writ of execution is issued on the basis of a judicial act) or with a civil claim for recovery of losses incurred.
At the same time, the recoverer of the enforcement proceedings acts as the defendant.
In accordance with paragraph 6 of article 48 of the Law on Enforcement Proceedings, enforcement measures are subject to cancellation in cases where the recoverer reimburses the actual execution costs incurred and pays for the activities of a private bailiff.
Disputes also arise over the procedure for collecting these expenses. Often, the claimants do not agree with the above calculation of the actual costs incurred, pointing out the lack of documentary evidence.
For example, before full execution, the recoverer has withdrawn the enforcement document, and enforcement proceedings are over. However, the CSI approved the amount of payment for his activities based on the full amount of the penalty.
This decision was declared illegal by the courts and annulled (6001-22-00-6ap/219). A similar situation was allowed by the CSI in several enforcement proceedings.
So, in the production of the CSI, the enforcement documents on the recovery of amounts in favor of the bank were being executed.
All enforcement documents have been revoked by the recoverer.
The CSI refused to return the writ of execution, citing the need to pay for its activities.
At the same time, he approved the amount of payment for his activities in the amount of 10%, 15%, 20% of the amount owed under the executive documents. All resolutions were declared illegal (6001-22-00-6ap/371).
By virtue of article 119 of the Law on Enforcement Proceedings, prior to the initiation of enforcement proceedings, the recoverer, on the instructions of a private bailiff, is obliged to deposit into the current account intended for storing the recovered amounts in favor of the recoverers, the amount necessary for the implementation of enforcement actions.
Upon initiation of enforcement proceedings, a private bailiff may appoint a later deadline for the payment of this amount.
If, during the enforcement proceedings, the funds deposited into the current account intended for storing the collected amounts in favor of the recoverers are insufficient to carry out further enforcement actions, the recoverer, on the instructions of a private bailiff, is obliged to deposit an additional amount into the specified current account.
In the context of the above-mentioned CSI RP, it is recommended to provide for the introduction of a minimum amount of payment for the activities of the CSI.
Formulation of requirements for administrative claims challenging decisions, actions (inaction) of bailiffs
When filing an administrative claim to challenge the actions (inaction) of bailiffs, the plaintiffs state the claims in various editions.
By virtue of article 132 of the CPC, if an encumbering administrative act violates the rights, freedoms and legitimate interests of the plaintiff, he has the right to file a challenge claim demanding that the administrative act be revoked in full or in any part thereof.
In case of disagreement with the decision issued by the bailiff, the demands are made to declare this decision illegal.
Simultaneous filing of a claim for recognition of actions as illegal is not required. In accordance with part 2 of Article 84 of the CPC, an illegal administrative act may be repealed in whole or in part.
If the decision is declared illegal, the court cancels the said decision.
Jurisdiction of lawsuits to administrative courts
In accordance with article 127 of the Law on Enforcement Proceedings, the decision and action (inaction) of the bailiff to execute the enforcement document or the refusal to commit such actions may be appealed by the recoverer or the debtor to the court.
The complaint is filed with the court in accordance with the procedure established by the legislation of the Republic of Kazakhstan on administrative proceedings.
Based on the content of this rule, only the parties to the enforcement proceedings have the right to appeal against the actions of the bailiff.
However, in practice, disputes often arise with bailiffs from persons who are not parties to enforcement proceedings.
Paragraph 2 of the NP of the Supreme Court "On the application by courts of certain norms of legislation on enforcement proceedings" provides for the right of interested parties to challenge the actions of the Civil Protection Service.
By virtue of part 1 of Article 9 of the CPC, everyone has the right, in accordance with the procedure established by this Code, to apply to an administrative body, to an official or to a court for protection of violated or disputed rights, freedoms or legitimate interests.
This provision provides for the right to judicial protection if there is an interest.
When receiving claims from persons who are not parties to the enforcement proceedings, the courts should check whether there is another way to protect and restore the disputed right and whether there are significant legal consequences for the plaintiff from the actions committed.
For example, JSC is a recoverer of enforcement proceedings for the recovery of debts from LLP in the amount of 220,989,149 tenge, court costs.
The LLP is also a debtor in enforcement proceedings for the recovery of wage arrears in favor of individuals for a total amount of KZT 17,569,000.
The actions of the CSI in the framework of the collection of wage arrears were appealed by JSC, which has the right to file a claim challenging the defendant's actions, which give rise to legal consequences for him, since the sold property was built under the terms of the Investment Agreement and was the subject of a pledge on the basis of the Pledge Agreement.
The claims were considered on the merits by the courts, and the claim was partially satisfied (6001-22-00 6ap/607).
In order to exclude different interpretations of the provisions of the Law on Enforcement Proceedings, the NP SC "On the application by Courts of Certain Provisions of the Law on Enforcement Proceedings" should specify the conditions under which an interested person has the right to appeal against the actions (inaction) of bailiffs in court.
The plaintiff must prove his material or legal interest in appealing the actions (inaction) of the bailiffs.
However, in the absence of a real legal interest and the existence of another way of protection, the claims of such persons are subject to refund.
For example, the claim of a person who is not the mortgagee of the sold property has been returned (6001-22-00-6ap/394).
Collection of state duty
Plaintiffs on claims to appeal the actions (inaction) of bailiffs from paying the state fee when filing a claim with the court are exempt in accordance with subparagraph 15) of Article 616 of the Code of the Republic of Kazakhstan "On Taxes and other mandatory payments to the budget."
In accordance with Part 1 of Article 122 of the CPC, issues related to the allocation of court costs are considered according to the rules of the CPC.
By virtue of part 1 of Article 117 of the CPC, the state fee from which the plaintiff was exempt, as well as the costs associated with the proceedings, are collected from the defendant, who is not exempt from paying court costs, to the state's income in full or in proportion to the satisfied part of the claim.
Upon satisfaction of the claim, the state fee to the local budget revenue is subject to collection from the bailiff in proportion to the satisfied part of the claim.
The state duty rate is calculated according to the rules of subparagraph 8) of paragraph 1 of Article 610 of the Code of the Republic of Kazakhstan "On Taxes and other mandatory payments to the budget" (0.5 MCI).
Suspension of enforcement proceedings
In accordance with subparagraph 13) of article 42 of the Law on Enforcement Proceedings, enforcement proceedings are subject to suspension within one working day in cases where enforcement proceedings are requested by the court.
In practice, courts in their rulings on actions in an incoming administrative case indicate the demand for enforcement proceedings.
After receiving the materials of the enforcement proceedings, the courts do not return the materials of the enforcement proceedings until the case is considered on its merits or until the court decision enters into force.
This practice entails a prolonged suspension of enforcement proceedings, violation of the rights of the claimant, and does not always meet the goals and objectives of administrative proceedings. In order to exclude violations and respect the rights of the parties to enforcement proceedings, the following sequence should be followed:
- the claim of the materials of the enforcement proceedings by a ruling on the actions of the court in the received administrative case;
- receipt from the bailiff of the originals of the enforcement proceedings on paper or electronic media;
- attaching the materials necessary for dispute resolution to the materials of the administrative case;
- the return of enforcement proceedings when necessary.
Based on the subject matter of the administrative claim, the defendant should refrain from executive actions within the contested stage.
Thus, if there is a court ruling by which the court has demanded from the bailiff the materials of the enforcement proceedings, it is necessary for the bailiff to issue a resolution suspending the enforcement proceedings until the official return of the materials by the court.
In order to form a uniform practice on this procedural issue, it is necessary to clarify in the NP of the Supreme Court "On the application by courts of certain norms of legislation on enforcement proceedings."
The time limit for appealing a court decision
Part 4 of Article 168 of the CPC stipulates that an appeal, a petition from the prosecutor for administrative cases challenging the actions (inaction) of bailiffs may be filed within ten working days from the date of the decision.
The date of the judgment is considered to be the date of the announcement of the judicial act.
When explaining a court decision, courts should indicate to the parties the specifics of the appeal period.
In order to ensure guarantees for the speedy resolution of disputes and the exclusion of abuse of law by debtors, provide for the entry into force of the court decision from the date of the announcement of the decision of the appellate instance.
The deadline for filing a claim (the practice of restoring deadlines)
Part 4 of Article 136 of the CPC provides that claims against the actions (inaction) of the bailiff for the execution of enforcement documents are filed with the court within ten working days from the date of the action (refusal to perform the action) or from the day when the recoverer or debtor, who was not notified of the time and place of the action by the bailiff, became aware of It is known about him.
The establishment of such a deadline is conditioned by the need to ensure the continuity of enforcement proceedings and cannot be considered as violating the right to judicial protection.
In practice, there are cases when the actions of bailiffs are appealed by debtors in order to delay the terms of enforcement proceedings, with reasons stating that the party was not informed of the materials of the enforcement proceedings in a timely manner, and therefore, claims are filed in violation of the established deadlines for applying to the court.
When considering this category of disputes, special attention should be paid to studying the materials of enforcement proceedings and to establish the methods and dates for notifying the parties to the enforcement proceedings of the actions taken.
By virtue of part 7 of Article 134 of the CPC, the time limit for filing a claim that has been missed for a valid reason may be restored by the court according to the rules of the CPC.
The reasons for missing the deadline for filing a claim in court and their significance for the proper resolution of an administrative case are clarified by the court in a preliminary hearing.
In accordance with paragraph 2 of Article 126 of the CPC, the time limits established by law may be restored by the court if they are missed for a reason recognized by the court as valid.
At the same time, the validity of missing the deadline must be confirmed by acceptable and relevant evidence.
The analysis showed that the courts return claims when the reasons for missing the deadline are not objective and do not indicate the existence of any facts that would prevent the timely appeal of the plaintiff to the court.
For example, enforcement proceedings on foreclosure on property were in the proceedings of the CSI.
Electronic auctions were held on January 4, 2019, the results of which were appealed by the debtor.
In returning the claim, the courts indicated that acceptable and reliable evidence of the validity of the reasons for missing the deadline for appealing the actions of the judicial officer had not been provided.
The plaintiff's arguments that the time limit for appealing electronic bidding is three years are untenable, since this dispute arises from the actions of the bailiff in executing enforcement documents (6001-22 00-6ap/726).
Another example is also related to the lack of evidence, the validity of the reasons for the start of the deadline. The plaintiff was acquainted with the materials of the enforcement proceedings on February 8, 2021, as indicated in the receipt.
However, he did not apply to the court within the prescribed 10-day period.
In the petition for the restoration of the deadline for applying to the court, as a valid reason for his omission, it is indicated that the plaintiff became aware of the actual recovery of the amount owed on September 29, 2021.
In October and November 2021, due to illness, he was unable to prepare a lawsuit in court.
The court assessed the documents provided (a certificate from a therapist), stating that they did not confirm the validity of the reasons for missing the deadline (No. 6001-22-00-6ap/398).
Claim refund
Part 2 of Article 138 of the CPC provides 17 grounds for the return of an administrative claim.
Cases in this category are most often returned for the following reasons:
subclause 6) of part 2 of Article 138 of the APPC - the plaintiff withdrew the filed claim;
9) of part 2 of Article 138 of the CPC - the parties have concluded an agreement on reconciliation, mediation or dispute settlement through a participatory procedure, and it has been approved by the court;
11) of part 2 of Article 138 of the CPC - the case is not subject to consideration in administrative proceedings;
17) of part 2 of Article 138 of the CPC - the case is beyond the jurisdiction of this court.
Also, the reason for the return of the claim is provided by part 8 of Article 136 of the CPC, according to which skipping the deadline for filing a lawsuit without a valid reason, as well as the inability to restore the missed deadline for filing a lawsuit, are grounds for returning the claim.
The courts do not have any difficulties in resolving the issue of the return of claims in the analyzed category.
At the same time, the implementation of the principle of the active role of the court has significantly increased the number of cases resolved peacefully (concluding an agreement or withdrawing a claim).
Regulatory legal acts
The main regulatory legal acts regulating the issues of enforcement proceedings are:
The Constitution of the Republic of Kazakhstan;
APPC;
GK; GPK;
The Law on Enforcement Proceedings;
The Law of the Republic of Kazakhstan "On Evaluation activities in the Republic of Kazakhstan";
NP of the Supreme Court of March 31, 2017 No. 1 "On the application by Courts of certain norms of legislation on enforcement proceedings";
NP of the Supreme Court of December 19, 2003 No. 12 "On liability for non-enforcement of judicial acts";
Rules approved by the Order of the Minister of Justice of the Republic of Kazakhstan dated February 20, 2015 No. 100;
Resolution of the Government of the Republic of Kazakhstan dated May 4, 2014 No. 437 "On approval of the amount of payment for the activities of a private bailiff".
In accordance with paragraph 3 of Article 76 of the Constitution of the Republic of Kazakhstan, judicial acts that have entered into legal force are binding on all state bodies, local governments, legal entities, officials, citizens and are subject to execution throughout the territory of the Republic of Kazakhstan.
The purpose of enforcement proceedings is to ensure the effective restoration of violated or disputed rights or legally protected interests.
Appealing against the actions (inaction) of a bailiff is a form of judicial control in enforcement proceedings, the purpose of which is to protect the rights and interests of the parties to the enforcement proceedings.
Abbreviations used
APPC – Administrative Procedural Code of the Republic of Kazakhstan;
CPC – Civil Procedure Code of the Republic of Kazakhstan;
Civil Code of the Republic of Kazakhstan;
The Law of the Republic of Kazakhstan "On Enforcement Proceedings and the status of Bailiffs" – The Law on Enforcement Proceedings;
NP VS – Normative Resolution of the Supreme Court of the Republic of Kazakhstan;
Rules for the sale of seized property, including at auction in the form of an electronic auction – Rules;
AIAS – Automated information and analytical system of judicial authorities of the Republic of Kazakhstan "Torelik";
SCAD VS – Judicial Board for Administrative cases of the Supreme Court of the Republic of Kazakhstan; SCAD or collegium – judicial board for administrative cases;
SMAS – specialized interdistrict Administrative Court;
DU – Department(s) of Justice;
GSI – State bailiff(s);
CSI – Private bailiff(s);
CGO – central government agency;
MIO – local executive bodies.
President
Republic of Kazakhstan
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