Often there are situations when the court decision is made in favor of the recoverer, the writ of execution for the recovery of the amount is with the bailiff, but the debtor does not execute the court decision. Is it possible to bring to administrative responsibility a debtor who does not comply with a court decision? Where do I need to go to bring the debtor to administrative responsibility? What threatens the debtor for failure to comply with the court decision?
IN WHAT CASES CAN A DEBTOR BE HELD ADMINISTRATIVELY LIABLE?
Paragraph 1 of Article 125 of the Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Bailiffs” establishes that the debtor may be held administratively or criminally liable for failure to execute an executive document. Article 669 of the Code of the Republic of Kazakhstan on Administrative Offenses stipulates that non-execution of a court verdict, court decision or other judicial act and executive document entails administrative liability.
To bring the debtor to administrative responsibility, the following conditions must be met:
- there is a valid court decision;
- in the production of a bailiff there is a writ of execution on the recovery of the amount from the debtor;
- the debtor does not take any action to enforce the court decision.
The main condition for bringing the debtor to administrative responsibility is the non-execution of a judicial act.
In the event that the debtor makes payments for the execution of a judicial act, an executive document in part, even in a small amount, the debtor is not considered to be non-executing a court decision, therefore, such a debtor cannot be held administratively liable for non-execution of a judicial act.
An exception will be the deliberate non-execution by the debtor of a judicial act. For example, a debtor has sufficient income but makes payments that are disproportionate to income. In this case, it is necessary to have evidence of the debtor’s intentional avoidance of non-execution of the court decision.
Thus, it is possible to bring the debtor to administrative responsibility only if he does not take any measures to execute a judicial act, an executive document, or if there is evidence of deliberate evasion from the execution of a judicial act.
WHERE TO APPLY TO BRING THE DEBTOR TO ADMINISTRATIVE RESPONSIBILITY?
THE PRODUCTION IS LOCATED AT THE STATE BAILIFF
According to subparagraph 56) of part 1 of article 804 of the Code of Administrative Offenses in cases of administrative offenses considered by the courts, protocols on administrative offenses have the right to draw up authorized officials – state enforcement officers. Subparagraph 2) of paragraph 1 of Article 126 of the Law “On Enforcement Proceedings and the Status of Bailiffs” provides that the state enforcement agent, in the manner prescribed by law, has the right to draw up protocols on administrative offenses.
Therefore, in order for the state bailiff to draw up a protocol on an administrative offense in relation to the debtor, the recoverer must apply to the bailiff in whose proceedings the enforcement proceedings are located, with an application for drawing up a protocol in respect of the debtor on the grounds provided for in Article 669 of the Code of Administrative Offenses.
PROCEEDINGS ARE HELD BY A PRIVATE BAILIFF
A private bailiff is not endowed with such powers. In the event that enforcement proceedings are held by a private bailiff, the bailiff himself or the recoverer has the right to apply to the prosecutor’s office with an application for a decision to initiate an administrative case in accordance with Part 2 of Article 805 of the Code of Administrative Offenses. After the decision of the prosecutor to initiate an administrative case, it is sent for consideration to a specialized administrative court.
CONSIDERATION OF A CASE ON BRINGING THE DEBTOR TO ADMINISTRATIVE RESPONSIBILITY
In accordance with Part 1 of Article 684 of the Code of Administrative Offenses, judges of specialized district and equivalent administrative courts consider cases of administrative offenses provided for in Article 669 of the Code of Administrative Offenses.
According to Article 808 of the Code, a report on an administrative offense provided for in Article 669 of the Code is sent to the judge immediately after it is drawn up, since in this case an administrative arrest may be applied.
The case of an administrative offense for non-execution of a court decision is considered on the day of receipt of the protocol on an administrative offense and other case materials, since an administrative arrest is provided for committing such an offense.
Having considered a case on an administrative offense, in accordance with Part 1 of Article 821 of the Code of Administrative Offences, the judge shall issue one of the following decisions:
- on the imposition of an administrative penalty;
- to terminate the proceedings;
- on transferring the case for consideration to a judge, body (official), authorized to impose a penalty of a different type or amount for this administrative offense.
According to part 1 of article 823 of the said Code, the decision on the case of an administrative offense is announced immediately after the end of the consideration of the case.
WHAT THREATENS THE DEBTOR WITH NON-EXECUTION OF THE COURT DECISION?
Article 669 of the Code of Administrative Offenses provides that for non-execution of a court sentence, court decision or other judicial act and executive document, the debtor faces:
- for an individual – a fine in the amount of 10 monthly calculation indices (MCI) or administrative arrest up to 5 days;
- to an official, a private notary, a private bailiff, a lawyer – a fine of 20 MCI or administrative arrest up to 5 days;
- a small business entity – a fine of 30 MCI;
- a medium-sized business entity – a fine of 40 MCI;
- a large business entity – a fine of 50 MCI.