Comment to article 129. Failure by officials of local executive bodies and (or) legal representatives of the child to register orphaned children, children left without parental care, in need of housing  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. Failure by officials of local executive bodies and (or) legal representatives of the child to register orphaned children, children left without parental care, in need of housing, as well as registration in violation of the established deadline –

     they entail a fine in the amount of one hundred monthly calculation indices.

     2. The acts provided for in the first part of this Article, committed repeatedly within a year after the imposition of an administrative penalty, –

     they entail a fine in the amount of two hundred monthly calculation indices.

     Part 1. In the Republic of Kazakhstan, every child has the right to housing. An orphan child, a child left without parental care, in the absence of housing, have the right to receive it in accordance with the housing legislation of the Republic of Kazakhstan.

     The public danger of the administrative offense being commented on lies in the violation of this right.  

     The object is social relations related to ensuring the right of an orphaned child, a child left without parental care to receive housing.

     The Law of the Republic of Kazakhstan "On the Rights of the Child in the Republic of Kazakhstan" contains the following definitions of this category of children:

     a child left without parental care – a child who has been left without the care of a single or both parents due to the restriction or deprivation of their parental rights, recognition of parents as missing, declaration of their deceased, recognition as incompetent (with limited legal capacity), parents serving sentences in places of deprivation of liberty, parents evading the upbringing of the child or the protection of his rights and interests, including if the parents refuse to take their child from an educational or medical institution, as well as in other cases of absence of parental care (paragraph 1 of art. 1);

     An orphan child is a child whose both or only parent have died (clause 8 of Article 1).

     According to paragraph 28) of Article 1 of the Law "On Housing Relations", a dwelling is a separate residential unit (an individual apartment building, apartment, dormitory room) intended and used for permanent residence, meeting established sanitary-epidemiological, technical and other mandatory requirements.

     In accordance with Article 67 of this Law, dwellings from the communal housing stock or dwellings rented by a local executive body in a private housing stock are provided for use by citizens of the Republic of Kazakhstan who need housing and are registered, including orphans, children left without parental care.

     The objective side consists in the actions or inaction of persons who violate the procedure and deadlines established by law for registering orphaned children, children left without parental care, and those in need of housing.

     Registration of citizens of the Republic of Kazakhstan who may be provided with housing from the communal housing stock or housing rented by a local executive body in a private housing stock is carried out at the place of residence by the local executive body of the district, city of regional significance, city of republican significance, capital.

     The citizens of the Republic of Kazakhstan specified in paragraph 1 of Article 67 of the Law "On Housing Relations", which also include orphaned children and children left without parental care, are registered.

     The legal representatives of orphaned children, children left without parental care, are obliged, within six months from the date of admission of orphaned children, children left without parental care, to an educational organization, medical or other organization, or from the date such children are placed under guardianship or guardianship, or from the date of conclusion of an agreement with a foster carer, to place the child to register for housing with the local executive body.

     The procedure for registration of citizens of the Republic of Kazakhstan in need of housing from the state housing stock or housing rented by a local executive body in a private housing stock is determined by the Rules for registration of citizens of the Republic of Kazakhstan in need of housing from the state housing stock or housing rented by a local executive body in a private housing stock, developed in accordance with the Law "On Housing relations" and approved by Resolution of the Government of the Republic of Kazakhstan dated June 26, 2012 No. 856.

     The following example clearly reveals the objective side of this offense. On April 06, 2015, the prosecutor's office of the Medeu district of Almaty, during an inspection of the activities of the KSU "Specialized Complex "Zh" in Almaty, revealed a violation, expressed in the fact that the legal representative of minor children left without parental care (parents deprived of parental rights): K, born on 12.07.2008 and P, born on 18.01.2007; who, on the basis of the order no. dated May 05, 2014, is the director of the IC "Zh" K., these children in need of housing were registered in violation of the deadline established by law, thereby K. committed an administrative offense under art. 129 Part 1 of the Administrative Code.  

     At the hearing, the director of the KSU "Specialized Complex "Zh" in Almaty, K., admitted her guilt, while showing that she had been working as the director of this complex since May 05, 2014. The violation revealed by the prosecutors was committed by social educators who violated the deadline for housing registration of minors. However, she does not absolve herself of responsibility, because she is the legal representative of the children in their complex and is ready to incur administrative penalties.

     Minor K, born on 12.07.2008, was identified in the IC "Zh" by the order of the akim of the Alatau district of Almaty No. dated March 13, 2014.

     According to the information of the Almaty Department of Justice, the minor has no registered rights to real estate.  

     Meanwhile, officials of the IC "Zh" K., in order to obtain housing, was registered only after more than 1 year, which is confirmed by the receipt of the PSC dated 30.03.2015. The same violations were committed against minor P, born on 18.01.2007.  

     Thus, as a result of the inaction of officials of the IC, the legitimate rights of orphaned children and children left without parental care were violated.

     The subject of an administrative offense may be:

     - officials of local executive bodies, whose duties include registering orphaned children, children left without parental care, and those in need of housing;

     - legal representatives of the child.

     Officials, in accordance with the note to Article 30 of the Administrative Code, are recognized as persons who permanently, temporarily or under special authority perform or were performing at the time of the commission of an administrative offense the functions of a government representative or who were performing or were performing at the time of the commission of an administrative offense organizational, administrative or economic functions in state institutions, quasi-public sector entities, local self-government bodies. self-management.

     The legal representatives of the child are parents, adoptive parents, guardian, trustee, foster carer, foster parents, and other persons replacing them who, in accordance with the legislation of the Republic of Kazakhstan, provide care, education, upbringing, and protection of the rights and interests of the child.

     The subjective side of this offense in relation to the occurrence of harmful consequences may be expressed in an intentional or careless form of guilt.  

     Part 2 of the commented article defines the commission of a similar offense repeatedly as a qualifying feature within a year after the imposition of an administrative penalty under the first part of Article 129 of the Administrative Code.

     Protocols on administrative offenses provided for in Article 129 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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