Comment to article 100. Dealing to the detriment of an individual or a legal entity of a complaint filed by him The Code of the Republic of Kazakhstan on Administrative Offences
Filing a complaint to the detriment of an individual or legal entity who filed a well-founded complaint or in whose interests it was filed, –
entails a fine for officials in the amount of ten monthly calculation indices.
The generic object of the offense is social relations related to the realization of the individual's right to protect his freedoms and interests.
In accordance with Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to be recognized as a legal personality and has the right to defend their rights and freedoms in all ways that do not contradict the law.
One of these methods is the submission of appeals by individuals or legal entities. Public relations related to the submission and consideration of appeals from individuals and legal entities in the Republic of Kazakhstan are regulated by the Law "On the Procedure for considering Appeals from Individuals and Legal Entities."
In accordance with paragraph 4 of Article 1 of this Law, an appeal is an individual or collective written, oral or in the form of an electronic document, videoconference, video message, proposal, statement, complaint, request or response sent to the subject considering the appeal or to an official.
The legislator divides appeals into the following types::
- a proposal is a recommendation by a person to improve laws and other regulatory legal acts, the activities of government agencies, the development of public relations, and the improvement of socio-economic and other spheres of activity of the state and society;
- response - an expression of a person's attitude to the state's domestic and foreign policy, as well as to events and phenomena of a public nature;
- request - a request from a person to provide information on personal or public issues of interest;
- a statement is a request from a person for assistance in the realization of his rights and freedoms or the rights and freedoms of others, or a report on violations of laws and other regulatory legal acts, deficiencies in the work of entities considering appeals, officials, or criticism of their activities;
- complaint - a person's demand for the restoration or protection of violated rights, freedoms or legitimate interests of him or others, for the elimination of unlawful actions or omissions of state bodies, local governments, legal entities with one hundred percent participation of the state or providing goods (works, services) in accordance with the terms of a state order and (or) public procurement, subjects of a large entrepreneurship at the request of individuals and legal entities with whom a contract has been concluded for the supply (performance, provision) of goods (works, services) to them, their officials, as well as the cancellation of their illegal decisions.
Legal relations related to the consideration of appeals are governed by the following basic principles:
1) legality;
2) unity of requirements for appeals;
3) guarantees of observance of the rights, freedoms and legitimate interests of individuals and legal entities;
4) the inadmissibility of manifestations of bureaucracy and red tape when considering appeals;
5) equality of individuals and legal entities;
6) transparency of the activities of subjects and officials when considering appeals.
Violation of the legislation of the Republic of Kazakhstan on the procedure for considering appeals from individuals and legal entities entails liability in accordance with the laws of the Republic of Kazakhstan.
The direct object of the administrative offense being commented on is the right of a person to file exactly such a type of appeal as a complaint. Other types of appeals are not reflected in the disposition of Article 100 of the Administrative Code.
The objective side is expressed in an action aimed at harming the person who filed the complaint or in whose interests it was filed (preventing the restoration or protection of violated rights, making an illegal decision, etc.).
In accordance with Article 15 of the Law "On the Procedure for Considering Appeals from Individuals and Legal Entities," subjects and officials are required to prevent appeals from individuals and legal entities to the detriment of the person who submitted it or in whose interests it was submitted. The Law applies to individuals and legal entities who have submitted applications, to entities and officials who consider complaints. The law does not apply to appeals from individuals and legal entities, the procedure for consideration of which is established by the legislation of the Republic of Kazakhstan on administrative offenses, criminal procedure, and civil procedure legislation of the Republic of Kazakhstan.
A prerequisite for recognizing this act as unlawful is the compliance of the complaint with such a ground as validity. The complaint should reflect the circumstances that are relevant to the case comprehensively and fully clarified, and provide arguments in support of the conclusions.
The subject of an administrative offense is the officials of the entity considering appeals, including complaints. The subjects considering appeals include state bodies, local self-government bodies, legal entities with one hundred percent state participation or providing goods (works, services) in accordance with the terms of a state order and (or) public procurement, which have the right to consider and make decisions on appeals from individuals and legal entities in accordance with their competence, as well as large-scale business entities at the request of individuals and legal entities with whom a contract has been concluded for the supply (performance, provision) of goods (works, services) to them.
The subjective side is characterized by an intentional form of guilt. The guilty person was aware of the unlawful nature of the complaint to the detriment of the natural or legal person who filed it, foresaw its harmful consequences and desired or consciously allowed these consequences to occur or treated them indifferently.
Protocols on administrative offenses provided for in Article 100 of the Administrative Code may be drawn up by authorized officials of the internal affairs bodies (Part 1 of Article 804 of the Administrative Code). The prosecutor issues a resolution on the initiation of cases of administrative offenses under this article of the Administrative Code (art. 805 of the Administrative Code).
Cases of these administrative offenses are considered by judges of specialized district and equivalent administrative courts (Part 1 of Article 684 of the Administrative Code). When individuals apply for the restoration of violated rights, cases are considered by the court without drawing up a protocol on the offense (art. 807 of the Administrative Code).
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:
Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);
Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);
Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;
Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;
Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;
Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);
Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);
Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;
Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;
Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);
Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;
Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;
Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);
Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;
Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.
Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).
Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus
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