of January 12, 2009 No. 2
About acceptance of interim measures on civil cases
For the purpose of uniform understanding and application in court practice of the legal acts regulating acceptance of interim measures on civil cases, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:
1. In civil legal proceedings are understood as interim measures provided by the Code of civil procedure of the Republic of Kazakhstan (further - GPK) and other legal acts of the Republic of Kazakhstan of measure of procedural suppression of possible actions of the defendant (debtor) which can complicate or make impossible forced execution of the court ruling.
The interim measures taken by court shall not result the defendant - the legal entity or the individual entrepreneur in bankruptcy, violation of normal productive activity, to violation of legitimate rights and interests of other persons, to promote raiding (illegal capture of property of the defendant).
2. Measures for providing the claim for the cases considered in arbitration proceeding are accepted by court in the location of the debtor or arbitration with observance of all provisions provided by Chapter 15 GPK.
In case of consideration of the application about providing the claim the court shall check whether proceedings on the claim of person who submitted the application for acceptance of interim measures are initiated by arbitration.
3. Interim measures are taken for providing:
claims of property or non-property nature (the statements for special claim proceeding provided by Chapters 27, of 28, of 29, 30 GPK);
execution of decisions of the courts;
execution of determinations of courts about approval of voluntary settlements;
forced execution of executive documents.
Interim measures are taken by court in any provision of case, only after adoption of the statement by the judge to production and the initiation of proceedings, but before issue of the executive document on forced execution which took legal effect of court resolution.
Interim measures in the cases provided by the law are taken also by the legal executive in enforcement proceeding for ensuring forced execution of executive documents if interim measures were not taken by court.
4. Articles listed in part one 156 GPK interim measures are not exhaustive.
Taking into account nature of disputable legal relationship and according to the legal act regulating it, the court can take also other interim measures if rejection of those can complicate or make impossible execution of the decision.
Others can be provided by the international treaties ratified by the Republic of Kazakhstan, in comparison with legal acts of the Republic of Kazakhstan, interim measures. The international agreements which were not providing ratification as the commencement provision concluded before adoption of the Constitution of the Republic of Kazakhstan of 1995 are acting and keep priority before the legislation of the republic if such priority for these international treaties is directly provided by the laws of the republic regulating the respective spheres of legal relationship (The resolution of the Constitutional council of the Republic of Kazakhstan of October 11, 2000 No. 18/2 "About official interpretation of Item 3 of article 4 of the Constitution of the Republic of Kazakhstan".
The court has the right to take at the same time several interim measures if it allows to provide most effectively execution of the judgment and protection of the violated legitimate rights and the interests of the claimant.
5. According to Article 157 GPK interim measures are accepted by court only based on the plaintiff's declaration (applicant) or his representative or based on the plaintiff's declaration on the case which is in production of arbitration.
The application for acceptance of interim measures can be submitted in any provision of case: by preparation of case for legal proceedings, in judicial session, after removal of court resolution by court, but to its address in stipulated in Clause 241 GPK procedure to forced execution.
According to Article 155 GPK the claimant shall specify specific arguments that rejection of interim measures can complicate or make impossible forced execution of the court ruling in the statement.
According to statements for pronouncement of the writ stipulated in Article 156 GPK measures for providing the statement for issue of the writ are not accepted as the writ is taken out by court on stipulated in Article 135 GPK to indisputable requirements without excitement of civil case. However according to the statement of the claimant court, after the introduction of the writ in legal force, but before its issue to the claimant according to the procedure of Article 143 GPK having the right to take interim measures on forced execution of the writ.
Interim measures cannot be taken at the initiative of court.
6. In the presence of the plaintiff's declaration or its representative about acceptance of interim measures court according to Article 157 GPK take out determination about providing the claim or for ensuring execution of court resolutions if earlier on case by court interim measures were not taken.
If the statement for providing the claim is enclosed to the action for declaration or about it is specified in the action for declaration, then it is considered and allowed by the judge in day of removal of determination about excitement of civil case. In other cases the statement for providing the claim is allowed by the judge in day of its receipt in court.
The application for providing the claim submitted by preparation of case for legal proceedings, the application for ensuring forced execution of the court ruling submitted to the appeal of court resolution to forced execution is considered by the judge solely without notice of persons participating in case on the place and time of consideration of the application. In these cases the protocol of separate legal proceeding is not constituted.
If the application for providing the claim is submitted in judicial session, then it is without delay researched then the judge in the consultative room takes out determination about its satisfaction or about refusal.
7. In case of consideration of the application about acceptance of interim measures the court should research question of whether there corresponds on the content the interim measure by the declared claimant (applicant) to substantive requirements, whether it will provide suppression of possible actions of the defendant which can be made by it for the purpose of difficulty or impossibility of performance of court resolution.
If the court comes to conclusion that the interim measure specified by the claimant in the statement does not conform to the declared substantive requirements, then such statement for providing the claim with the proposed interim measure is not subject to satisfaction.
8. Removal of determination by court about refusal in acceptance of interim measures does not interfere with the claimant or his representative repeatedly to take a legal action with the statement for taking measures to providing the claim, having specified new arguments about need of acceptance of such measures.
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