of March 31, 2017 No. 1
About application by courts of some regulations of the legislation on enforcement proceeding
(In edition of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan of 20.04.2018 No. 7)
For the purpose of ensuring the correct application of the legislation on enforcement proceeding and forming of uniform court practice the plenary session of the Supreme Court of the Republic of Kazakhstan
1. The legislation on enforcement proceeding is based on the Constitution of the Republic of Kazakhstan (further - the Constitution), consists of the Civil code of the Republic of Kazakhstan (further - group of companies), the Code of civil procedure of the Republic of Kazakhstan (further - GPK), the Law of the Republic of Kazakhstan of April 2, 2010 No. 261-IV "About enforcement proceeding and the status of legal executives" (further - the Law), regulations of the international treaties ratified by the Republic of Kazakhstan and other regulatory legal acts of the Republic of Kazakhstan.
2. According to the Law jurisdiction of the legal executive does not extend to persons who do not participate in enforcement proceeding. However according to Item 2 of article 13 of the Constitution, articles 250, 251 GPK and 127 Laws of action (failure to act) of the legal executive for execution of executive documents or refusal in making of such actions can be appealed in court in claim procedure, considering the features provided by Articles 250, 251 GPK both the parties of enforcement proceeding, and persons which consider that their rights and legitimate interests are violated, obstacles to implementation by them of the rights and legitimate interests are created, or any obligation is assigned to them.
The claim to actions (failure to act) of the legal executive (further - the claim) the claimant and the debtor is considered according to the procedure, provided by Article part one 250 GPK.
If execution of the decision infringes valuable interests of the third parties, then these persons have the right to take a legal action with the requirement to the debtor and the claimant about recovery of the violated right according to the procedure of Article of 251 GPK. At the same time, if the claimant did not recruit in the case of the legal executive, then the court on own initiative shall make it. In this case the legal executive acts as the third party who is not declaring independent requirements regarding dispute.
In Article part one sense 250 GPK follow that the claim to actions (failure to act) of the state legal executive is submitted in district (city) court of the territorial site serviced by the legal executive.
The claim to actions (failure to act) of the private legal executive is submitted in district (city) court in place of registration of the private legal executive.
In case of stay in the territory of the settlement of several courts of law the claim moves in the place of making of executive actions.
3. In case of the solution of question of adoption of the claim signed by the representative, the court needs to check its powers. Powers of the representative on making of each of the legal proceedings specified in Item 2 of article 19 of the Law shall be specially provided in the power of attorney issued represented.
4. Court, resolving issue of adoption of the claim in production, shall check whether the term provided by Article part one 250 GPK is observed by the party.
The party which took a legal action shall provide proofs of when she knew of the action (failure to act) made by the legal executive, refusal in action making.
Therefore if the claimant or the debtor make the complaint after the term established by Article part one 250 GPK and there is no petition for recovery of the passed term, the claim is not accepted in production of court and 124 GPK return to the applicant determination of court according to Article.
Return of the claim does not interfere with repeated appeal to the court with appendix to the claim of the petition for recovery of the passed term.
Recovery of the passed term is solved court on stages of adoption of the claim according to Article part two 126 GPK.
5. By consideration of the claim for the purpose of observance of the term of consideration of the case established by Article part two 250 GPK the court should take measures for the proper and timely notice of participants of enforcement proceeding on the place and time of judicial session.
In case of absence of the state legal executive (dismissal, leave, long, over 10 days, disability or business trip, etc.) other legal executive of the same territorial department can be sent to judicial session.
Territorial subdivisions of authorized body in areas, the cities of Astana and Almaty (further - territorial authorities) can act as defendants in compensatory actions, the losses caused as a result of illegal actions (failure to act) of the state legal executives or when requirements about collection of court costs are declared.
The private legal executive in case of appeal of its actions (failure to act) is the party in civil process therefore the rights and obligations of persons participating in case including the right to conducting case in court through the representative extend to it.
Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info
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