IS IT POSSIBLE TO REPOSSESS MOVABLE PROPERTY THROUGH A NOTARIAL WRIT OF EXECUTION, OR JUST ANOTHER LEGISLATIVE OVERSIGHT?

Abstract

This article addresses the issue of practical implementation of Article 92-1 of the Law of the Republic of Kazakhstan "On Notariat," which allows for the recovery of movable property through a notary's enforcement inscription. Although this legal provision has been in force since 2016, notarial practice shows an almost complete lack of its application in practice.

The article analyzes the reasons behind this situation, which stem from significant gaps in current legislation and the absence of a clearly regulated procedure necessary to carry out the recovery of movable property. In notarial practice, difficulties arise both from legal uncertainty regarding the procedure for recovering movable property and from the inability to objectively determine the market value of the property for the calculation of the notarial fee.

The author draws attention to the legal conflicts between the Laws of the Republic of Kazakhstan “On Notariat” and “On Financial Leasing,” which place notaries and creditors in a deadlock. This issue is further complicated by the legal nature of financial leasing agreements, which are multilateral contracts combining elements of both sales and lease agreements. The disputable nature of leasing agreements, their subject matter, the rights and obligations of the parties, and liability measures have repeatedly sparked discussions in legal literature, casting doubt on the “undisputed” nature of claims required for the execution of a notarial enforcement inscription.

The author concludes that urgent legislative amendments are needed to eliminate existing gaps and contradictions. It is proposed to develop separate provisions regulating the procedure for executing enforcement inscriptions on claims related to the recovery of movable property, as well as to establish a mechanism for determining and collecting notarial fees. Addressing these shortcomings will enhance the possibilities for extrajudicial debt recovery and improve the effectiveness of the notarial enforcement inscription.