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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE KYRGYZ REPUBLIC

of December 5, 2003 No. 19

About some questions of court practice of the dispute resolution connected with bail bonds

Plenum of the Supreme Court of the Kyrgyz Republic, having heard information on the results of generalization of court practice of the dispute resolution connected with bail bonds, for the purpose of ensuring the correct and uniform application of regulations of the legislation regulating the legal relationship arising from the agreement of pledge, being guided by article 15 of the Law "About the Supreme Court of the Kyrgyz Republic and Local Courts",

decides:

1. Draw the attention of local courts of the Kyrgyz Republic to the facts of violations and the wrong application of some regulations of the Laws "About Pledge" and "About Mortgage", the Civil code, other legislation of the Kyrgyz Republic by hearing of cases about the disputes connected with bail bonds and also to non-compliance by courts on this category of cases of regulations of the Code of civil procedure: about pre-judicial preparation of cases, cognizance, terms of hearing of cases, collection of the state fee, about content of the judgment, its legality and justification.

2. Explain to courts that according to article 1 of the Law "About Pledge" pledge execution of any the obligation, valid on the law, can be provided. In particular, if this obligation exceeds ten minimum wages or arose from the transaction of legal entities among themselves and with citizens, then to the conclusion of the pledge agreement it shall be drawn up in simple written form, and in the cases provided by the law is notarially certified, and also is subject to state registration (the Art. of the Art. 177, of 416, of 545, of 590, of 596 groups of companies of the Kyrgyz Republic).

According to Item 2 of article 1 of the Law "About Pledge" before implementation by the pawnbroker of the mortgage rights the obligation provided with pledge shall be expressed as monetary claim. In particular, the claim for the address of collection on pledged property is considered by court, as a rule, in one proceeedings about monetary claim according to the obligation provided with this pledge. In case of separate presentation of the claim for the address of collection the court checks for pledged property according to item 4 of Article 133 GPK of the Kyrgyz Republic whether the unexecuted judgment which took legal effect or the writ or the executive text made by the notary about cash collection (requirement) for the obligation provided with this pledge, which is subject to satisfaction from pledge subject cost is enclosed to the action for declaration.

Courts should mean that the essence of pledge as method of ensuring execution of primary obligation consists in the right of the creditor (pawnbroker) in case of non-execution by the debtor of the obligation provided with pledge to demand realization of subject of pledge and transfer to it of the obtained money in the amount of, not exceeding outstanding amount on secured liability. If the realized sum exceeds the size of the requirement provided with pledge, then the difference returns to the pledger (the Art. 324, of item 6 of Art. 336 of group of companies of the Kyrgyz Republic).

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