NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of June 20, 2005 No. 2

About some questions of application by courts of the legislation on enforcement proceeding

Due to the need of uniform application of legislation questions by courts by consideration of civil cases according to statements of physical persons and legal entities for contest of actions of the legal executive, the plenary session of the Supreme Court of the Republic of Kazakhstan DECIDES:

1. By hearing of cases, following from enforcement proceeding, it must be kept in mind that the legislation on this matter is based on the Constitution of the Republic of Kazakhstan, regulations of the international treaties ratified by the Republic of Kazakhstan and consists of the Law of the Republic of Kazakhstan "About enforcement proceeding and the status of legal executives" (further - the Law), and other regulatory legal acts of the Republic of Kazakhstan.

2. According to article 31 of the Law the basis for application of measures of forced execution is the executive document accepted by the legal executive to production according to the procedure, established by the Law.

The list of executive documents is provided in article 9 of the Law. By consideration of the claim to actions (failure to act) of the legal executive the court shall check justification of excitement of enforcement proceeding.

3. Actions of the legal executive for execution of the executive document or refusal in making of such actions can be appealed by the debtor or the claimant. In these cases according to Article 240-5 of the Code of civil procedure of the Republic of Kazakhstan (further - GPK) the claim is submitted in district court of the site serviced by the legal executive within ten days from the date of action making (refusal in action making) the legal executive or from the date of when the specified persons who are not informed on time and the place of making of action knew of it.

Applications for the violated rights of other persons are considered by actions (bezdeystviye) of the legal executive according to the procedure and in the terms provided by Chapter 27 GPK.

If execution of the decision infringes valuable interests of the third parties, then such persons have the right to take a legal action with the claim to the debtor and the claimant for recovery of the violated right. The court considers such cases in claim production and shall recruit the legal executive in case in quality of the third party who is not declaring independent requirements if the claimant did not attract it as that or as the codefendant.

4. Legal entities and physical persons in case of submission of claims to actions of legal executives according to the subitem 14) of article 541 of the Code of the Republic of Kazakhstan about taxes and other obligatory payments in the budget (Tax code) (further - the Tax code) are exempted from payment of the state fee.

In case of presentation of the claim by the third parties for the right to property concerning which executive actions are made claims are subject to payment by the state fee according to the procedure, provided by the subitem 1) of Item 1 of article 535 of the Tax Code.

5. By consideration of the claim to the actions (failure to act) of the legal executive connected with execution of the specific executive document, the court shall inform the legal executive on the place and time of judicial session.

In case of absence of the legal executive (dismissal, leave, long (over 10 days) disability or business trip of the legal executive) can be directed to judicial session other legal executive of the same territorial department.

Territorial subdivisions of authorized body in areas, the cities of Astana and Almaty (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. Involvement of territorial authorities as defendants in case of appeal by participants of enforcement proceeding and other persons of actions (failure to act) of the state legal executives is not allowed.

6. Considering claims to actions (failure to act) of legal executives, claims for protection of valuable interests of the third parties in the course of execution of executive documents, it must be kept in mind that:

- collection according to executive documents addresses first of all on money of the debtor including being in bank institutions, at the third parties if other procedure is not determined in the executive document;

- in case of absence at the debtor of the money sufficient for debt repayment, collection addresses on other property of the debtor;

7. In case of appeal of actions of the legal executive about illegality of the address of collection (except money) the court checks the property belonging to the debtor for another what operations within enforcement proceeding are performed by the legal executive whether these actions conform to requirements Articles 62, 63 Laws, namely whether property accessory to the debtor, its actual value and the encumbrances lying on it is found out. In case of establishment of accessory of property to the debtor the legal executive shall include it in the inventory and impose, depending on the amount of collection on everything or part of property, arrest.

In case of the address of collection on the debtor's debts on the property which is common joint property (for example, property of spouses, common property on the privatized dwelling, property of peasant farm) the legal executive or the party in enforcement proceeding shall take a legal action, respectively, with the petition or with the statement for determination of share of the debtor in common joint property. By results of consideration the court takes out determination in which establishes the debtor's share in specific property on which collection addresses.

8. Realization of distrained property, except the property withdrawn under the law from circulation irrespective of the bases of arrest and types of property is made by the legal executive through trade organizations on the commission beginnings, and also at the biddings in the form of electronic auction.

The form of realization is determined by the legal executive taking into account type of property, opinions of the claimant and the debtor (Article 74 - 76 Laws).

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