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NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of May 26, 2022 No. 6

About application of the legislation by courts by hearing of cases about contest of executive text

For the purpose of ensuring unity of court practice of application by courts of the legislation regulating questions of making by notaries of executive text, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to make the following explanations.

1. The legislation on the specified legal relationship is based on the Constitution of the Republic of Kazakhstan (further – the Constitution) and 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 July 14, 1997 No. 155-I "About notariate" (further – the Law on notariate), 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 on enforcement proceeding), Rules of making of the notarial actions by notaries approved by the order of the Minister of Justice of the Republic of Kazakhstan of January 31, 2012 No. 31 (further – Rules) and other regulatory legal acts.

2. The executive text represents the order of the notary about collection from the debtor of the certain sum of money which is due to the claimant or reclamation of other personal estate. The executive text owing to subitem 15-1) of Item 1 of article 34 of the Law on notariate is one of types of the notarial actions made by notaries.

3. The cognizance item of claims according to the procedure of special proceeding provided by Chapter 45 GPK is check of correctness of making of executive text or legitimacy of refusal in its making.

It is necessary to understand its discrepancy to requirements of the Law on notariate as abnormality of making of notarial action and other regulations regulating activities of the notary.

Treat examples of such violations making of executive text:

on demand, not stipulated in Item 2 articles 92-1 of the Law on notariate;

according to the obligation based on the written transaction which completion date did not come;

without provision by the claimant of the documents provided by Rules confirming indisputability of the requirement;

in case of the expiration of limitation period for date of making of executive text.

In making of executive text it is necessary to understand refusal on the basis which is not provided by the Law on notariate as illegal refusal.

The judgment for this category shall meet the general requirements provided by Chapter 19 GPK.

In case of grievance settlement in motivation part of the decision the bases for cancellation of executive text, regulations violated by the notary when making executive text or in case of refusal in its making are stated.

In substantive provisions of the decision in case of grievance settlement the court specifies the information about the notary, the name, number and date of issue of the executive text which is subject to cancellation notarial action. In case of grievance settlement on refusal in making of executive text - conclusion of court about recognition illegal refusal in making of executive text, and also the information about the notary and executive text which he shall make.

4. According to Article part two 366 GPK if in case of submission of the claim or when considering the case the dispute on the right based on committed notarial action will be established between interested persons, the court takes out determination about leaving of the statement without consideration in which explains to the applicant and other interested persons their right to resolve dispute according to the procedure of claim production.

If at the time of making of executive text there was lawsuit between the claimant and the debtor, the transaction is acknowledged as court invalid, the debt is in parts or in full paid off by the debtor or there are other circumstances testimonial of availability of dispute on the right, such dispute is subject to consideration in claim production. The requirement of the debtor to the claimant about recognition of the executive text which is not subject to execution completely or in part will be subject of consideration.

The notary in this case can be recruited in case in quality of the third party who is not declaring independent requirements regarding dispute.

In claim production the interests are subject to consideration of the requirement of other persons who believe that the executive text violates their rights, or any obligation is illegally assigned to them. Case is subject to consideration with participation of defendants: the claimant and the debtor, the notary is recruited in case in quality of the third party who is not declaring independent requirements regarding dispute.

The prosecutor has the right to take a legal action according to the procedure of special or claim proceeding in protection of interests of the state and persons listed in Article part three 54 GPK.

In case of satisfaction of the claim in substantive provisions of the decision the court specifies the information about the notary, the name, number and date of issue of the executive text which is not subject to execution completely or in part.

If at the time of submission of the claim to notarial action or the claim for recognition of the executive text which is not subject to execution the enforcement proceeding is initiated, the applicant (claimant) has the right to take a legal action with the statement for taking measures to providing the claim - about suspension of collection on executive text.

5. The claim to notarial action or refusal in its making is filed a lawsuit in the location of the notary.

The location of the notary is the address of accounting registration of the notary.

The notary is not official of state body whose actions can be appealed by rules of the Administrative procedural Procedure Code of the Republic of Kazakhstan. Therefore, cases on appeal of notarial actions are considered according to the procedure of civil legal proceedings.

The notary does not perform individual business activity without formation of legal entity therefore cases on claims of the legal entities and physical persons performing individual business activity without formation of legal entity on notarial actions are not jurisdictional to specialized interdistrict economic freighters.

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