Comment to article 128. Involvement of a minor in the commission of an administrative offense The Code of the Republic of Kazakhstan on Administrative Offences
Involvement of a minor in the commission of an administrative offense –
entails a fine in the amount of fifty monthly calculation indices.
According to article 19 of the Convention on the Rights of the Child, States parties shall take all necessary legislative, administrative, social and educational measures to protect children from all forms of physical or psychological violence, abuse or neglect, neglect or neglect, abuse or exploitation, including sexual abuse, by parents, legal guardians or any other person taking care of the child. Such protective measures, if necessary, include effective procedures for developing social programs to provide the necessary support to the child and those who care for him, as well as for other forms of prevention and detection, reporting, referral, investigation, treatment and follow-up of cases of child abuse, mentioned above, as well as, if necessary, to initiate a judicial procedure.
The Republic of Kazakhstan, being a State party to the Convention, has defined the goals of State policy in the interests of children:
1) ensuring the rights and legitimate interests of children, and preventing discrimination against them;
2) strengthening the basic guarantees of the rights and legitimate interests of children, as well as restoring their rights in cases of violations;
3) the formation of the legal basis for guaranteeing the rights of the child, the creation of appropriate bodies and organizations to protect the rights and legitimate interests of the child;
4) promoting the physical, intellectual, spiritual and moral development of children, fostering patriotism, citizenship and peacefulness in them, as well as realizing the child's personality in the interests of society, the traditions of the peoples of the state, achievements of national and world culture;
5) ensuring purposeful work on the formation of legal awareness and legal culture among minors;
6) ensuring the protection of children from information harmful to their health and development.
State policy in the interests of children is a priority area of activity of state bodies and is based, inter alia, on the responsibility of officials and citizens for violating the rights and legitimate interests of a child, causing harm to him.
The public danger of the administrative offense being commented on consists in introducing minors to illegal actions and instilling antisocial values in them, which fundamentally contradicts the state's policy of protecting the interests of children.
The direct object of an administrative offense is the moral education of a minor, his physical and mental development. An additional object is public relations, which are protected by legislation on administrative offenses in accordance with art. 6 of the Administrative Code.
The objective side is formed by actions involving a minor in the commission of an administrative offense. Due to the fact that there is no definition of this activity in the legislation, we believe that the explanation contained in the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 11, 2002 No. 6 "On judicial practice in cases of criminal offenses of minors and their involvement in the commission of criminal offenses and other antisocial acts" is most acceptable for its disclosure.
According to paragraph 24 of this resolution, the involvement of a minor in the commission of criminal offenses should be understood as purposeful actions involving the formation of a minor's desire (intention, aspiration) and willingness to participate in the commission of criminal offenses.
With the exception of the fact that it is a criminal offense, the content of this activity remains unchanged in relation to involvement in the commission of an administrative offense. In fact, the only difference is the type of offense. Thus, "involvement of a minor in the commission of an administrative offense" can be defined as purposeful actions of the person involved to form the minor's desire (intention, aspiration) and willingness to participate in the commission of an administrative offense.
At the same time, the actions of an adult should be active and may be accompanied by the use of mental or physical influence (beatings, persuasion, threats and intimidation, bribery, deception, arousing feelings of revenge, envy and other base motives, assurances of impunity, giving advice on the place and method of committing or concealing traces of administrative offenses, the promise of payment for the committed actions or assistance in the implementation of stolen goods and others).
The authorities authorized to consider cases of administrative offenses are required to indicate which specific actions were committed by an adult in order to involve a minor in the commission of administrative offenses.
By itself, an adult's suggestion to commit an administrative offense made to a minor without exerting mental or physical influence on him cannot be regarded as involving a minor in committing an administrative offense.
It is worth noting that according to paragraph 20 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 12 "On certain issues of the application by courts of the norms of the General Part of the Code of Administrative Offenses of the Republic of Kazakhstan", the involvement of a minor in the commission of an administrative offense in accordance with subparagraph 3) of Article 57 of the Administrative Code should be considered as an aggravating circumstance if the perpetrator does not he is brought to administrative responsibility under Article 128 of the Administrative Code.
The subject of an administrative offense is a sane individual who has reached the age of majority. A minor cannot be held accountable for its commission.
The subjective side is characterized by direct intent. The person who committed it was aware of the unlawful nature of the involvement of a minor in the commission of an administrative offense, foresaw its harmful consequences and desired the onset of these consequences. At the same time, the guilty person must be aware of the minor age of the person involved in the commission of the offense. For example, on the night of April 06 to 07, 2015, T.B., with two of his friends, while staying in a rented apartment in Astana, invited minors S.L.B., born on March 09, 1999, B.J.J., born on September 18, 2000, knowing that they were minors, involved They were accused of committing an administrative offense, namely drinking alcoholic beverages and appearing in a public place in a state of intoxication, as well as smoking in public places, in particular on the playground. T.B. admitted the offense, explained to the court that he knew that the girls were minors. The Specialized Inter-district Juvenile Court of Astana B.T.A. was brought to administrative responsibility under Part 1 of Article 128 of the Administrative Code.
Protocols on administrative offenses under Article 128 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).
Cases of these administrative offenses are considered by judges of specialized inter-district juvenile courts (Part 2 of Article 684 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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