Administrative liability for offenses occurs if they do not entail criminal liability by their nature.
By a resolution of the specialized administrative court of Ust-Kamenogorsk dated June 14, 2017, individual entrepreneur (hereinafter referred to as IP) E. was found guilty of committing an administrative offense under Article 182 of the Code of Administrative Offenses of the Republic of Kazakhstan (hereinafter referred to as the Administrative Code), with the imposition of an administrative penalty in the form of an administrative fine of 300 MCI in the amount of 680,700 tenge. By the resolution of the Judicial Board for Civil Cases of the East Kazakhstan Regional Court dated July 18, 2017, the above-mentioned resolution remained unchanged. In his submission, the Chairman of the Supreme Court of the Republic of Kazakhstan proposes to review the judicial acts in cassation due to the violation of uniformity in the interpretation and application of legal norms by the courts. The courts, considering the fact of the offense imputed to IP E. to be proven, subjected her to administrative punishment under Article 182 of the Administrative Code. These conclusions of the courts do not comply with the law and the circumstances relevant to the case. As follows from the case file, by the decision of the specialized interdistrict economic court of the East Kazakhstan region dated August 18, 2016, IP E. was declared bankrupt. By the resolution of the senior investigator of the Economic Investigation Service of the Department of State Revenue for the East Kazakhstan region dated March 20, 2017, the pre-trial investigation into the criminal case against IP Ye. according to Article 238 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), it was terminated due to the absence of elements of a criminal offense in her actions.
Administrative liability for offenses occurs if they do not entail criminal liability by their nature.
In accordance with the Administrative offense Protocol No. 000264 dated April 13, 2017, IP E. received fictitious invoices from counterparties recognized as false enterprises in order to avoid paying taxes to the budget, thereby causing damage to the state on an especially large scale. The composition of an administrative offense under Article 182 of the Administrative Code is formed when intentionally creating or increasing insolvency, committed as a result of actions (inaction) of the founder (participant), an official, bodies of a legal entity, as well as by an individual entrepreneur in personal interests or in the interests of other persons, if this act does not contain signs of a criminal offense. In accordance with article 238 of the Criminal Code, criminal liability is provided for intentional bankruptcy that has caused major damage or other grave consequences. At the same time, according to paragraph 38 of Article 3 of the Criminal Code, a major damage for criminal prosecution in this composition is an amount exceeding the monthly calculation index by ten thousand times. In the present case, the amount of alleged damage caused to the state from the activities of IP E. is 36,797,700 tenge, which is particularly large, since it exceeds the threshold value for qualifying actions according to the norms of the Administrative Code. According to part 2 of Article 25 of the Administrative Code, administrative liability for offenses provided for in articles of the Special Part of this Code occurs if these offenses by their nature do not entail criminal liability in accordance with the legislation. Thus, these circumstances indicate the absence of legal grounds for bringing IP E. to administrative responsibility under Article 182 of the Administrative Code. In accordance with subparagraph 2) In part 1 of Article 741 of the Administrative Code, proceedings on an administrative offense may not be initiated, and those initiated are subject to termination in the absence of an administrative offense. The adopted judicial acts violate the uniformity in the interpretation and application of legal norms by the courts, which, in accordance with subparagraph 3) of part 5 of Article 851 of the Administrative Code, entails their revision. The Specialized Judicial Board of the Supreme Court annulled judicial acts of local courts, proceedings in the case of an administrative offense against individual entrepreneur E. It was terminated due to the absence of the elements of an administrative offense in her actions, provided for in Article 182 of the Code of the Republic of Kazakhstan on Administrative Offenses. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan is satisfied.
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