14 July 2021
Currently, the use of the enforcement inscription by a notary is increasing. This mechanism not only significantly reduces the costs of the claimant, but also allows the procedure to be expedited, as much of the time was previously spent on court proceedings. However, despite all the positive aspects of this mechanism, the procedure for cancelling the enforcement inscription by a notary is straightforward, in case the debtor does not agree with the issued document.
In accordance with paragraph 1, Article 92-1 of the Law of the Republic of Kazakhstan "On Notaries", in order to collect money or claim other movable property from the debtor, the notary shall issue an enforcement inscription by a notary on the document establishing the debt, or issue a relevant resolution. It is important to have the original document, which indicates the presence of debt. the notary must put his mark on this document.
Based on the enforcement inscription by a notary or the relevant resolution, debt collection shall be carried out according to the following indisputable requirements:
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the performance of an obligation is based on a transaction certified by a notary;
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the debtor has recognized the failure to fulfill the obligation;
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the fulfillment of an obligation is based on the protest of a bill of non-payment, non-acceptance and undated acceptance, made by a notary;
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the creditor claims the subject of leasing agreement in accordance with the lease agreement or the laws of the Republic of Kazakhstan;
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pawnshop collects the pledge upon the expiration of the loan agreement;
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the creditor collects debts from the owners of premises who fail payment of expenditures for common property;
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the debt is collected based on public contracts for consumed municipal services (electricity, gas, heat, water supply and others);
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the debt is collected for failure to pay funds under the lease agreement within the established time limits;
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the debt of the employer is collected as an accumulated but not paid wage and other payments to the employee.
The recovery of penalties, interest, (if any), is based on the enforcement inscription by a notary, (excluding recovery of bank loans, in case the debtor acknowledges in writing that the obligation has not been fulfilled.)
After executing the enforcement inscription by a notary, the notary shall deliver or send a copy to the debtor by the e-mail or to the debtor's known place of residence or registration, using the means of communication that ensure the delivery is recorded, and no later than the following working day.
The debtor has the right, within ten working days from the date of receipt of a copy of the enforcement inscription by a notary, to send objections to the stated demand in writing with notification to the notary who issued the executive note. In this case, the notary must revoke the enforcement inscription by a notary.
As practice shows, the notary may execute the enforcement inscription even without having received an answer or objection from the debtor. Usually, the debtor learns about the enforcement inscription by a notary from the bailiff after the debtor's accounts have already been seized.
This case, the debtor must write an application to the bailiff requesting the enforcement proceedings to be suspended. At the same time, the debtor shall send a reasoned objection to the notary requesting that the enforcement inscription should be cancelled.
If the notary refuses to revoke the enforcement inscription, the debtor may apply to the respective court for revocation of the enforcement inscription by a notary at the location of the notary.
It is important to note that the notary’s refusal to cancel the execution inscription is appealed in the way of general court proceedings because notary’s the refusal to cancel the execution inscription is not included in the list of notarial actions provided by Article 34 of the Law of Republic of Kazakhstan "On Notaries".
At the same time, the practice shous that the debtor can additionally file a claim to the Republican Chamber of Notaries and the Ministry of Justice of the Republic of Kazakhstan through the Egov Electronic Government.
Currently, the use of the enforcement inscription by a notary is increasing. This mechanism not only significantly reduces the costs of the claimant, but also allows the procedure to be expedited, as much of the time was previously spent on court proceedings. However, despite all the positive aspects of this mechanism, the procedure for cancelling the enforcement inscription by a notary is straightforward, in case the debtor does not agree with the issued document.
Please note that the cancellation of the enforcement inscription by a notary does not nullify the existence of the agreement itself and if the debt is real and the creditor goes to court, legal costs may also be levied.
For further information, please contact:
Saniya Perzadayeva, Managing Partner, Unicase Law Firm
saniya.p@unicaselaw.com
