Comment to Article 151. Violation of the rules for the export or dispatch of raw materials, food and industrial goods outside the Republic of Kazakhstan The Code of the Republic of Kazakhstan on Administrative Offences
Chapter 14. ADMINISTRATIVE OFFENSES IN THE FIELD OF ENTREPRENEURIAL ACTIVITY
Chapter 14 of the Administrative Code establishes the composition of administrative offenses in the field of entrepreneurial activity and administrative responsibility in the Republic of Kazakhstan for their commission. In the commented chapter, the compositions are combined on the basis of their inherent common (generic) object of an administrative offense. The generic object of administrative offenses in the field of entrepreneurial activity is the procedure established in the Republic of Kazakhstan and protected by the State for the conduct of entrepreneurial activity by its subjects, as well as the procedure for state control and supervision of its implementation.
Cases of administrative offenses in the field of entrepreneurial activity are considered by authorized state bodies, with the exception of those structures that provide for the deprivation of a license or confiscation of objects of offense and (or) income as the main or additional type of punishment for offenses, which can only be applied by courts.
Article 151. Violation of the rules for the export or dispatch of raw materials, food and industrial goods outside the Republic of Kazakhstan
1. Violation of the rules for the export or dispatch of raw materials, food, industrial goods outside the Republic of Kazakhstan -
entails a fine for individuals in the amount of five, for small businesses - in the amount of ten, for medium-sized businesses - in the amount of twenty, for large businesses - in the amount of thirty-five 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 ten, for small businesses in the amount of twenty, for medium-sized businesses in the amount of thirty, for large businesses in the amount of fifty monthly calculation indices, with or without confiscation of raw materials or goods.
The commented article establishes administrative liability for violation of the rules for the export or dispatch of raw materials, food, and industrial goods outside the Republic of Kazakhstan.
The generic object of offenses provided for in Article 151 of the Administrative Code is the procedure established in the legislation of the Republic of Kazakhstan and protected by the state for conducting business in the Republic of Kazakhstan.
151 of the Administrative Code is the procedure established by the legislation of the Republic of Kazakhstan and protected by the state for the export or dispatch of raw materials, food, and industrial goods outside the Republic of Kazakhstan. This procedure is established by the State in the rules for the export or dispatch of goods and raw materials outside the Republic of Kazakhstan, approved by it, in order to ensure national (including food and industrial) safety, fulfill international obligations of the Republic of Kazakhstan, protect the health and safety of citizens, protect their rights and legitimate interests.
In accordance with paragraph 2 of Article 18 of the Law of the Republic of Kazakhstan "On Regulation of Trade Activities", in order to prevent or reduce a critical shortage in the domestic market of food or other goods included in the List of Essential Goods, central government agencies may, within their competence, impose bans and quantitative restrictions on the export of certain goods in coordination with the authorized body. The list of essential goods is determined by the authorized body on the basis of proposals from central government agencies.
The subjects of offenses provided for in Article 151 of the Administrative Code are individuals and legal entities -business entities that violate the relevant rules when exporting or shipping raw materials, food, and industrial goods outside the Republic of Kazakhstan.
The subjects of the offense provided for in the commented article may be persons acting as participants in foreign trade activities within the framework of their foreign trade. According to clause 34) of Article 1 of the Law of the Republic of Kazakhstan "On Regulation of Trade Activities", foreign trade (also foreign trade activity) is the activity of participants in foreign trade related to the export from the Republic of Kazakhstan and (or) import of goods into the Republic of Kazakhstan. Accordingly, participants in foreign trade activities are individuals engaged in foreign trade activities, including those registered as individual entrepreneurs in accordance with the legislation of the Republic of Kazakhstan, and legal entities established in accordance with the legislation of the Republic of Kazakhstan, as well as organizations that are not legal entities.
Non-profit organizations are not the subjects of offenses provided for in Article 151 of the Administrative Code when they carry out their statutory activities. Also, persons who are directly involved in the shipment and transportation of goods or raw materials accepted for export are not subjects of administrative responsibility under the commented article. For them in art . 152 of the Administrative Code provides for an independent composition of an administrative offense in the form of violation of the rules for receiving raw materials, food and industrial goods for shipment outside the Republic of Kazakhstan and establishes administrative responsibility for its commission.
The subjective side of the unlawful acts provided for in Article 151 of the Administrative Code for individual offenders is characterized by guilt in the form of intent or negligence. The guilt of a person is revealed by his mental attitude towards the illegal acts committed by him and their harmful consequences.
The subjective side of offenses, the subjects of which are legal entities, is not subject to determination due to the existence of a legal requirement to establish guilt as a condition for bringing to administrative responsibility, only in relation to individuals. According to the legislation of the Republic of Kazakhstan on administrative responsibility, legal entities are administratively liable for the mere fact that they have committed an illegal act or omission, for which administrative liability is provided for in the Administrative Code, without taking into account the guilt of the officials of the legal entity who committed this act.
The administrative offences provided for in Parts 1 and 2 of Article 151 of the Administrative Code are formal. To bring them to administrative responsibility, it is not necessary to establish that the offender has caused material harm to the State, organization or citizen.
Part 1 of the commented article establishes administrative liability for violation of the rules for sending or exporting raw materials, food, and industrial goods outside the Republic of Kazakhstan.
The objective side of the offense provided for in Part 1 of the commented article is characterized by the commission by a person of illegal (and for individuals, including individual entrepreneurs, also guilty) actions, expressed in sending or actually exporting raw materials, food, and industrial goods outside the Republic of Kazakhstan in violation of the rules established for this by the legislation of the Republic of Kazakhstan.
Actions to export goods or raw materials in violation of the rules established for this are committed by the offender independently by actually crossing (attempting to cross) the state border of the Republic of Kazakhstan with goods or raw materials in violation of the rules established for this.
Actions to send goods or raw materials in violation of the rules established for this purpose are committed by transferring goods or raw materials by the offender to employees of railway, automobile, river, sea, air transport, postal operator for subsequent export or forwarding (forwarding) with their help of the transferred goods or raw materials outside the Republic of Kazakhstan.
The offense does not cover the actions of importing or receiving the specified raw materials or goods from abroad on the territory of the Republic of Kazakhstan, as well as transit of goods or raw materials through the territory of the Republic of Kazakhstan in accordance with the procedure established for this by international treaties or legislation of the Republic of Kazakhstan.
For the purposes of qualifying the offense provided for in the commented article, the borders of the Republic of Kazakhstan, which are legally and geographically limited by the state border, and the spatial limit of state sovereignty, are understood as the borders of the Republic of Kazakhstan.
In turn, the state border is defined in Article 1 of the Law of the Republic of Kazakhstan "On the State Border" as a line and a vertical plane passing through it, defining the limits of the territory of the Republic of Kazakhstan (land, waters, subsoil, airspace) and the spatial limit of the state sovereignty of the Republic of Kazakhstan.
At the same time, in order to qualify an act as an offense under the commented article, it does not matter in which direction the offender exports or sends goods or raw materials outside the Republic of Kazakhstan – to foreign countries or to the territory of the member states of the Eurasian Economic Union.
According to subclause 40) of Article 1 of the Law of the Republic of Kazakhstan "On Regulation of Trade Activity", a product is understood to be any labor product intended for sale or exchange that has not been withdrawn from circulation.
For the purposes of qualifying an offense, raw materials in accordance with the commented article are understood to be objects of mineral or biological origin, chemical industry products intended and (or) used for the production (manufacture) of finished products, including: mineral (including hydrocarbon) raw materials, raw materials of plant or animal origin, food raw materials, medicinal raw materials, secondary raw materials, etc.
According to subclause 45) of clause 1 of Article 1 of the Tax Code of the Republic of Kazakhstan, mineral raw materials are the part of the subsoil extracted to the surface (rock, ore, etc.) containing a mineral (minerals).
According to clause 29) of Article 1 of the Law of the Republic of Kazakhstan "On Veterinary Medicine", raw materials of animal origin are skins, wool, hair, bristles, furs, down, feathers, endocrine glands, viscera, blood, bones, horns, hooves, other products obtained from animals intended for animal feed and (or) used in industry.
According to paragraphs 47) of Article 1 of the Law of the Republic of Kazakhstan dated July 21, 2007 No. 301-III "On Food Safety", raw materials (food) are objects of plant, animal, microbiological, chemical and mineral origin used for the production (manufacture) of food products.
According to paragraphs 33-1), paragraph 1, Article 1 of the Code of the Republic of Kazakhstan "On the Health of the People and the Healthcare System", medicinal raw materials are substances of plant, mineral, animal origin or products of the chemical industry used for the production and manufacture of medicines.
According to paragraphs 20-1) of Article 1 of the Environmental Code of the Republic of Kazakhstan, secondary raw materials are materials obtained in the process of separate collection, sorting, crushing, pressing or other methods of exposure to consumer waste, and (or) consumer waste prepared for disposal and (or) processing to produce products.
The offense provided for in the commented article is considered to have been committed at the moment when a person has taken all actions in his power to ship or export raw materials, food, industrial goods outside the Republic of Kazakhstan in violation of the rules established for this, even if in the end these raw materials and goods were not exported (shipped) outside the Republic of Kazakhstan.
An administrative penalty in the form of a fine is imposed for committing an offense under Part 1 of Article 151 of the Administrative Code.
The amount of the fine for committing an offense under Part 1 of Article 151 of the Administrative Code is differentiated depending on the legal status of the offender, and if the offender is a business entity, it also depends on which category of business entities he belongs to. In this regard, the body bringing the offender to administrative responsibility must first establish the legal status of this person and the category of entrepreneurship to which he belongs before bringing a person to justice.
Depending on the legal status of the offender and the business category to which he belongs, the amount of the fine is:
- for individuals – 5 MCI,
- for small businesses – 10 MCI,
- for medium–sized businesses - 20 MCI,
- for large business entities – 35 MCI.
The amounts of fines are fixed and are not subject to change by the body imposing them.
This penalty is imposed on offenders by the authorized body in the field of sanitary and epidemiological welfare of the population, state revenue authorities or the court, in the case of a court case.
Part 2 of the commented article establishes a more severe penalty for repeated commission of any of the actions provided for in Part 1 of the commented article within a year after the imposition of an administrative penalty.
At the same time, the object, the subjective side and the subjects of the offense provided for in Part 2 of the commented article coincide in their characteristics with the object, the subjective side and the subjects of the offense provided for in Part 1 of Article 151 of the Administrative Code.
In the description of the objective side of the offense provided for in Part 2 of Article 151 of the Administrative Code, a sign of repetition is added to any of the acts provided for in Part 1 of the commented article.
An offense is considered to have been committed repeatedly if a person has previously committed any of the acts provided for in Part 1 of Article 151 of the Administrative Code, has been subjected to administrative punishment for it, and the one-year period during which the person is considered to have been subjected to administrative punishment has not expired yet.
The repetition of an offense is an independent qualifying feature, entailing the qualification of an unlawful act as an independent element of an offense under Part 2 of Article 151 of the Administrative Code.
Repetition as a qualifying feature is established not only in fact by identifying the number and nature of the unlawful acts committed by the violator during the year, but also legally by establishing the fact of bringing this person to administrative responsibility for the commission of an offense provided for in Part 1 of Article 151 of the Administrative Code, the existence of an effective and unenforceable decree of an authorized state body or court on the imposition of administrative penalty under part 1 of art . 151 of the Administrative Code, the fact of its announcement, delivery or referral to the offender and the expiration of a one-year period from the date of imposition of the penalty.
If a person has committed an illegal act repeatedly or continues to commit it after the start of the commission and until it is revealed, but until that moment he has not previously been brought to administrative responsibility under Part 1 of Article 151 of the Administrative Code, then bringing him to responsibility under Part 2 of Article 151 of the Administrative Code is impossible, since there is no qualifying sign of repetition. In this case, the person must be brought to administrative responsibility and punished under Part 1 of art. 151 of the Administrative Code, even if there are signs of repeated violations during the year and the uniformity of violations committed.
For repeated commission of an offense under Part 1 of Article 151 of the Administrative Code within a year after the imposition of the penalty, the offender is punished with a fine with or without confiscation of raw materials or goods.
The amount of the fine for committing an offense provided for in Part 2 of Article 151 of the Administrative Code is differentiated depending on the legal status of the offender, and if the offender is a business entity, it also depends on which category of business entities he belongs to. In this regard, the body bringing the offender to administrative responsibility must first establish the legal status of this person and the category of entrepreneurship to which he belongs before bringing a person to justice.
Depending on the legal status of the offender and the business category to which he belongs, the amount of the fine is:
- for individuals – 10 MCI,
- for small businesses – 20 MCI,
- for medium–sized businesses - 30 MCI,
- for large business entities – 50 MCI.
The amounts of fines are fixed and are not subject to change by the body imposing them.
Also, as an additional punishment for the commission of an offense provided for in Part 2 of the commented article, its sanction provides for the confiscation of raw materials or goods. Confiscation is applied at the discretion of the court, depending on the actual circumstances of the case under consideration.
An administrative penalty under Part 2 of the commented article is imposed on the offender only by the court, since the case of an administrative offense, for which the law provides for a sanction in the form of confiscation, must be considered in court.
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);
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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