Situations often arise when a court decision is made in favor of the claimant, the writ of execution for the recovery of the amount is with the bailiff, but the debtor does not comply with the court decision. Is it possible to bring to administrative responsibility a debtor who does not comply with the court decision? Where should I go to bring the debtor to administrative responsibility? What is the penalty for the debtor for failure to comply with the court decision?
In what cases can a debtor be brought to administrative responsibility?
Clause 1 of Article 125 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" establishes that for failure to execute an enforcement document, the debtor may be subject to administrative or criminal liability. Article 669 of the Code of the Republic of Kazakhstan on Administrative Offenses provides that failure to execute a court sentence, court decision or other judicial act and an enforcement document entails administrative liability.
In order to bring a debtor to administrative responsibility, the following conditions must be met:
- there is a court decision that has entered into legal force;
- the bailiff is in charge of an enforcement document to collect the amount from the debtor;
- the debtor does not take any action to enforce the court decision.
The main condition for holding a debtor administratively liable is his failure to comply with a court order.
In the event that the debtor makes payments for the execution of a court order or writ of execution partially, even in a small amount, the debtor is not considered to be in default of the court decision, therefore, such a debtor cannot be held administratively liable for failure to execute a court order.
An exception will be the intentional failure of the debtor to comply with the court decision. For example, the debtor has sufficient income, but makes payments in an amount disproportionate to the income. In such a case, evidence of the debtor's intentional evasion of non-compliance with the court decision is required.
Thus, it is possible to bring a debtor to administrative responsibility only if he/she refuses to take any measures to enforce a judicial act or writ of execution, or if there is evidence of intentional evasion of enforcement of a judicial act.
Where should I apply to bring a debtor to administrative responsibility?
The proceedings are being handled by the state bailiff.
According to subparagraph 56) of part 1 of article 804 of the Code of Administrative Offenses, authorized officials - state bailiffs - have the right to draw up protocols on administrative offenses in cases of administrative offenses considered by the courts. Subparagraph 2) of paragraph 1 of article 126 of the Law "On Enforcement Proceedings and the Status of Bailiffs" provides that a state bailiff has the right to draw up protocols on administrative offenses in the manner prescribed by law.
Therefore, in order for a state bailiff to draw up a protocol on an administrative offence against a debtor, the claimant must contact the bailiff in charge of the enforcement proceedings with a statement on drawing up a protocol against the debtor on the basis provided for in Article 669 of the Code of Administrative Offences.
The proceedings are being handled by a private bailiff.
A private bailiff does not have such powers. If the enforcement proceedings are with a private bailiff, the bailiff or the claimant has the right to apply to the prosecutor's office with an application for a ruling on the initiation of an administrative case in accordance with Part 2 of Article 805 of the Code of Administrative Offenses. After the prosecutor issues a ruling on the initiation of an administrative case, it is sent for consideration to a specialized administrative court.
Consideration of the 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 offence, as provided for in Article 669 of the Code, is sent to the judge immediately after it is drawn up, since in this case administrative arrest may be applied.
The case of an administrative offence for failure to comply with a court decision is considered on the day of receipt of the protocol on the administrative offence and other case materials, since administrative arrest is provided for the commission of such an offence.
Having examined the case of an administrative offence, in accordance with Part 1 of Article 821 of the Code of Administrative Offences, the judge issues one of the following decisions:
- on the imposition of an administrative penalty;
- on termination of proceedings in the case;
- on transferring the case for consideration to a judge, body (official) authorized to impose a penalty of a different type or amount for the given administrative offence.
According to Part 1 of Article 823 of the said Code, a decision on a case of an administrative offence is announced immediately after the completion of the consideration of the case.
What are the consequences for a debtor if he fails to comply with a court decision?
Article 669 of the Code of Administrative Offences provides that for failure to comply with a court sentence, court decision or other judicial act and writ of execution, the debtor faces:
- for an individual - a fine in the amount of 10 monthly calculation indices (MCI) or administrative arrest for up to 5 days;
- to an official, private notary, private bailiff, lawyer - a fine in the amount of 20 MCI or administrative arrest for up to 5 days;
- for a small business entity – a fine in the amount of 30 MCI;
- for a medium-sized business entity – a fine in the amount of 40 MCI;
- for a large business entity – a fine in the amount of 50 MCI.