Comment to article 132. Allowing minors to stay in entertainment venues at night The Code of the Republic of Kazakhstan on Administrative Offences
1. Allowing minors to stay in entertainment establishments unaccompanied by legal representatives at night (from 22 to 6 a.m.) –
entails a fine for individuals in the amount of ten, for small businesses or non–profit organizations – in the amount of fifteen, for medium–sized businesses - in the amount of thirty, for large businesses - in the amount of fifty monthly calculation indices.
2. The action provided for in the first part of this article, committed repeatedly within a year after the imposition of an administrative penalty, –
entails a fine for individuals in the amount of twenty, for small businesses or non–profit organizations in the amount of thirty, for medium–sized businesses in the amount of fifty, for large businesses in the amount of one hundred monthly calculation indices, with the suspension of activities or certain types of activities.
Part 1.The public danger of this administrative offense is expressed in the fact that it violates public relations related to ensuring the protection of the child from the negative effects of the social environment.
The object of the offense is the normal physical and mental development of a minor.
According to Article 36 of the Law "On the Rights of the Child in the Republic of Kazakhstan", state bodies, individuals and legal entities are obliged to protect the child from the negative effects of the social environment, information, propaganda and agitation that harm his health, moral and spiritual development.
A ban on the presence of a child, as well as the admission of a child unaccompanied by legal representatives to entertainment venues at night, is one of the means of his protection.
The objective side is manifested in actions (inactions) in the form of admission and provision of the opportunity to stay in entertainment establishments at night for minors unaccompanied by legal representatives.
The note to Article 422 of the Administrative Code refers to entertainment establishments - gambling establishments, nightclubs, coffee bars, restaurants, Internet cafes, computer rooms, billiard rooms, bowling clubs and cinemas, theatrical and entertainment facilities and other buildings, premises, structures in which entertainment and leisure, theatrical and entertainment services are provided, sports, cultural and leisure purposes.
Night time is the time from 22 to 6 a.m.
By law, it is allowed for a minor to be in an entertainment establishment at night only when accompanied by a legal representative. 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 subject of the offense is individuals, small business entities or non-profit organizations, medium-sized businesses, and large businesses.
A non-profit organization is a legal entity that does not have income extraction as its main purpose and does not distribute the net income received among the participants.
According to Article 23 of the Entrepreneurial Code of the Republic of Kazakhstan, business entities are citizens, oralmans and non-governmental commercial legal entities engaged in entrepreneurial activity (private business entities), state-owned enterprises (state business entities).
Depending on the average annual number of employees and the average annual income, business entities belong to the following categories:
- small business entities, including microenterprises;
- medium-sized businesses;
- subjects of large business.
Small business entities are individual entrepreneurs without forming a legal entity and legal entities engaged in entrepreneurship with an average annual number of employees of no more than one hundred people and an average annual income of no more than three hundred thousand times the monthly calculation index established by the law on the republican budget and effective on January 1 of the corresponding fiscal year.
Microenterprise entities are small business entities engaged in private entrepreneurship with an average annual number of employees of no more than fifteen people or an average annual income of no more than thirty thousand times the monthly calculation index established by the law on the republican budget and effective on January 1 of the relevant fiscal year.
Medium-sized business entities are individual entrepreneurs and legal entities engaged in entrepreneurship that are not related to small and large businesses.
Large business entities are individual entrepreneurs and legal entities engaged in entrepreneurship that meet one or two of the following criteria: the average annual number of employees is more than two hundred and fifty people and (or) the average annual income is more than three million times the monthly calculation index established by the law on the republican budget and effective on January 1 of the corresponding fiscal year.
The subjective side of the offense is characterized by an intentional or careless form of guilt. The perpetrator was aware that he was violating the prohibition on the presence of a minor in an entertainment establishment, foresaw the harmful consequences of this violation, desired or consciously allowed these consequences to occur, or treated them indifferently.
Or it is a question of a person's negligence, inattention, improper observance of the duties assigned to him. At the same time, there are both objective and subjective prerequisites for ensuring that, with due diligence and attentiveness in the performance of their duties, they can be aware of the social danger of their actions (inaction) and prevent the onset of socially dangerous consequences. For example, the May District Court of the Pavlodar region considered an administrative case against the head of the May village club, T. upon the admission of a minor in an entertainment establishment unaccompanied by legal representatives from 22.00 hours to 06.00 hours.
As follows from the case file, T., being the head of a rural club in the village of Maisk in the May district, on July 16, 2016, allowed the minor U. to be at a disco in a rural club at night, after 22.00 hours, unaccompanied by legal representatives.
At the hearing, T. admitted her guilt and explained that she did not notice how the minor U. went into the clubhouse to the disco after 22.00 hours.
By a court decision, citizen T. was found guilty of committing an offense under the first part of Article 132 of the Administrative Code and was subjected to an administrative fine in the amount of thirty monthly calculation indices, which amounts to 63,630 tenge.
Part 2 of the commented article defines as a qualifying feature the commission of a similar offense repeatedly within a year after the imposition of an administrative penalty under the first part of art. 132 of the Administrative Code.
It should be noted that according to paragraph 3 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No. 7 "On certain issues of the application by courts of the norms of the Special Part of the Code of Administrative Offenses of the Republic of Kazakhstan", some articles of the Administrative Code contain parts that strengthen responsibility for the commission of illegal actions set out in the previous parts: increased fine, additional penalty (for example, Part 2 of Article 132 of the Administrative Code). At the same time, additional penalties such as suspension or prohibition of activities or certain types of activities, as well as suspension or revocation of a license for the relevant type of activity, should be applied to persons who have the appropriate permit to carry out such activities. Employees of business entities engaged in activities requiring special permission may be subjects of such offenses only if the act provided for in the Special Part of the Administrative Code was not authorized, approved, committed by an authority, a person performing the management functions of a legal entity, or an employee of an individual entrepreneur and a legal entity performing organizational, administrative or economic functions.. At the same time, taking into account the civil consequences for the employer of any transactions and torts committed by an employee in the performance of work duties, such approval or authorization should be considered established on the basis of an employment relationship (including in the absence of proper registration of an employment relationship - upon admission to the performance of work duties), until proven otherwise.
Protocols on administrative offenses provided for in Article 132 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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