Comment to Article 164. Violation of the legislation of the Republic of Kazakhstan on natural monopolies The Code of the Republic of Kazakhstan on Administrative Offences

Home / Codes / Comment to Article 164. Violation of the legislation of the Republic of Kazakhstan on natural monopolies The Code of the Republic of Kazakhstan on Administrative Offences

1. Failure by a natural monopoly entity to provide information, report and notification of established forms to authorized bodies responsible for management in the fields of natural monopolies, informatization and communications, and civil aviation, as well as provision of information, report and notification of established forms in violation of established deadlines -

They impose a fine on small businesses in the amount of two hundred, on medium-sized businesses - in the amount of two hundred and forty, on large businesses - in the amount of eight hundred monthly calculation indices.

2. The same actions (inaction) committed repeatedly within a year after the imposition of the administrative penalty provided for in part one of this Article., -

A fine is imposed on small business entities in the amount of two hundred and forty, on medium-sized businesses - in the amount of two hundred and eighty, on large business entities - in the amount of one thousand two hundred monthly calculation indices.

3. Failure by persons engaged in activities related to the sphere of natural monopoly to submit to the authorized body an application and documents, information on inclusion in the State Register of subjects of natural monopolies within fifteen calendar days from the date of commencement of this activity in accordance with the procedure established by the legislation on natural monopolies., -

entails a fine in the amount of one hundred percent of the amount of income (revenue) received as a result of committing an administrative offense.

4. Non-compliance by a natural monopoly entity with restrictions, as well as non-fulfillment or improper fulfillment by a natural monopoly entity of duties established by the legislation of the Republic of Kazakhstan on natural monopolies, with the exception of the obligation to provide information, reports and notifications of established forms to authorized bodies responsible for natural monopolies, informatization and communications, civil aviation, -

they impose a fine on small businesses in the amount of two hundred and eighty, on medium-sized businesses - in the amount of three hundred and twenty, on large businesses - in the amount of one thousand six hundred monthly calculation indices.

5. The action (inaction) provided for in part four of this article, which entailed the receipt of income (revenue), -

entails a fine on legal entities in the amount of ten percent of the income (revenue) received as a result of committing an administrative offense.

Note. The income (revenue) received as a result of an administrative offense is understood as the difference between the income (revenue) received by a natural monopoly entity and the income (revenue) that the natural monopoly entity should have received in compliance with the legislation of the Republic of Kazakhstan.

The commented article establishes administrative liability for violation of the legislation of the Republic of Kazakhstan on natural monopolies.

The generic object of offenses provided for in Article 164 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.

The direct object of the offenses provided for in Article 164 of the Administrative Code is the procedure established by the legislation of the Republic of Kazakhstan for carrying out entrepreneurial activities by subjects of natural monopolies.

The subjective side of the unlawful acts provided for in Article 164 of the Administrative Code for individual offenders is characterized by guilt in the form of intent. 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 structures of administrative offenses provided for in the commented article are formal. To bring to administrative responsibility for their commission, it is not necessary to establish the fact that the offender caused material damage.

Part 1 of the commented article establishes administrative responsibility for the failure of a natural monopoly entity to provide information, reports and notifications of established forms to the authorized bodies responsible for managing natural monopolies, informatization and communications, and civil aviation, as well as the provision of information, reports and notifications of established forms in violation of established deadlines.

The objective side of the administrative offense provided for in Part Article 1 of the commented article consists in the commission by a natural monopoly entity of unlawful inaction in the form of failure to provide them with a report and notification of established forms, other information to authorized bodies responsible for management in the fields of natural monopolies, informatization and communications, and civil aviation, as well as in committing an unlawful act in the form of providing information, report and notification of established forms in violation of the deadlines set for this (late submission of information, reports, and notifications).

At the request of the norm of clause 17), clause 2, Article 26 of the Law of the Republic of Kazakhstan "On Natural Monopolies", a natural monopoly entity is obliged to submit annually, no later than May 1 of the year following the reporting period, reports to the authorized body on the execution of the approved tariff estimate, on the execution of the approved investment program, to another state body or local executive body. - a report on the implementation of the approved investment program.

At the request of the norm of clause 1 of Article 14 of the Law of the Republic of Kazakhstan "On Natural Monopolies", a natural monopoly entity must notify the authorized body no later than ten working days from the date of carrying out activities not related to regulated services.

At the request of the norm of clause 22), clause 2, Article 26 of the Law of the Republic of Kazakhstan "On Natural Monopolies", a natural monopoly entity is obliged, at the request of the authorized body, to provide the necessary information on paper or in electronic form within the time limits established by the authorized body, which may not be less than five working days from the date of receipt by the natural monopoly entity of the relevant requirement..

Failure by a natural monopoly entity to fulfill the specified obligations to provide reports, notifications and other necessary information within the time limits set for this purpose entails administrative liability under Part 1 of the commented article.

The amount of the fine for committing an offense under Part 1 of Article 164 of the Administrative Code is differentiated depending on which category of business entities the offender 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 business category to which the offender belongs, the amount of the fine is:

- for small businesses – 200 MCI,

- for medium–sized businesses - 240 MCI,

- for large business entities – 800 MCI.

The amounts of fines are fixed and are not subject to change by the body imposing them.

An administrative penalty under Part 1 of the commented article is imposed on the offender by the authorized body in the field of civil aviation, the authorized body in the field of informatization and communications, the authorized body in the field of natural monopolies, or the court, in case the case is considered in court.

Part 2 of the commented article establishes a more severe punishment for business entities for repeated commission of the act 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 164 of the Administrative Code.

In the description of the objective side of the offense provided for in Part 2 of Article 164 of the Administrative Code, a sign of repetition is added to the act provided for in Part 1 of the commented article.

An offense is considered to have been committed repeatedly if the person has previously committed the act provided for in Part 1 of Article 164 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 164 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 committing an offense under Part 1 of Article 164 of the Administrative Code, the existence of a court order that has entered into force imposing an administrative penalty under Part 1 of art. 164 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 164 of the Administrative Code, then bringing him to responsibility under Part 2 of Article 164 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. 164 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 164 of the Administrative Code within a year after the imposition of the penalty, the offender is punished with a fine.

The amount of the fine for committing an offense provided for in Part 2 of Article 164 of the Administrative Code is differentiated depending on which category of business entities the offender 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 business category to which the offender belongs, the amount of the fine is:

- for small businesses – 240 MCI,

- for medium–sized businesses - 280 MCI,

- for large business entities – 1200 MCI.

The amounts of fines are fixed and are not subject to change by the body imposing them.

An administrative penalty under Part 2 of the commented article is imposed on the offender by the authorized body in the field of civil aviation, the authorized body in the field of informatization and communications, the authorized body in the field of natural monopolies, or the court, in case the case is considered in court.

Part 3 of the commented article establishes administrative responsibility for the failure of persons engaged in activities related to the sphere of natural monopoly to submit to the authorized body an application and documents, information on inclusion in the State Register of subjects of Natural Monopolies within fifteen calendar days from the date of commencement of this activity in accordance with the procedure established by the legislation on natural monopolies.

The subject of this offense is a person who, although not a natural monopoly entity, nevertheless carries out activities related to the sphere of natural monopoly without submitting an appropriate application and documents to the authorized body for inclusion in the State Register of Natural Monopoly Entities.

The objective side of the offense provided for in Part 3 of the commented article is the commission of illegal actions (inaction) by a person operating in the field of natural monopoly, expressed in the failure to submit an application or documents to the authorized body within 15 calendar days from the date of the start of this activity or in an untimely (after the expiration of the specified 15 calendar days), information about the inclusion in the State Register of subjects of natural monopolies.

For committing an offense under Part 3 of Article 164 of the Administrative Code, the offender is punished with a fine in the amount of 100% of the income (proceeds) received as a result of committing an administrative offense.

According to the note to the commented article, income (revenue) received as a result of committing an administrative offense is understood as the difference between income (revenue) received by a natural monopoly entity and income (revenue) that the natural monopoly entity should have received in compliance with the legislation of the Republic of Kazakhstan.

The rate for calculating the fine under Part 3 of the commented article is fixed and is not subject to change by the body imposing it.

An administrative penalty under Part 3 of the commented article is imposed on the offender by the authorized body in the field of civil aviation, the authorized body in the field of informatization and communications, the authorized body in the field of natural monopolies, or the court, in case the case is considered in court.

Part 4 of the commented article establishes administrative responsibility for non-compliance by a natural monopoly entity with restrictions, as well as non-fulfillment or improper fulfillment by a natural monopoly entity of duties established by the legislation of the Republic of Kazakhstan on natural monopolies, with the exception of the obligation to provide a report, notification of established forms, information to authorized bodies in charge of natural monopolies, informatization and communications, civil aviation.

The objective side of the administrative offense provided for in Part 4 of the commented article is the commission by the natural monopoly entity of illegal actions (inaction), expressed in: 1) failure to comply with the restrictions established for him by the legislation of the Republic of Kazakhstan on natural monopolies, and 2) failure to perform or improper performance of duties established for him by the legislation of the Republic of Kazakhstan on natural monopolies.

The objective side of the offense provided for in Part 4 of the commented article does not cover, by virtue of the direct indication of this in the norm itself, the failure of a natural monopoly entity to comply with the obligation to provide a report and notification of established forms and other information to authorized bodies responsible for the management of natural monopolies, informatization and communications, and civil aviation. The specified illegal actions of the natural monopoly entity form an independent administrative offense, established in Part 1 commented article.

For committing an offense under Part 4 of Article 164 of the Administrative Code, the offender is punished with a fine.

The amount of the fine for committing an offense provided for in Part 4 of Article 164 of the Administrative Code is differentiated depending on which category of business entities the offender 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 business category to which the offender belongs, the amount of the fine is:

- for small businesses – 280 MCI,

- for medium–sized businesses - 320 MCI,

- for large business entities – 1600 MCI.

The amounts of fines are fixed and are not subject to change by the body imposing them.

An administrative penalty under Part 4 of the commented article is imposed on the offender by the authorized body in the field of civil aviation, the authorized body in the field of informatization and communications, the authorized body in the field of natural monopolies, or the court, in case the case is considered in court.

Part 5 of the commented article establishes administrative responsibility for the commission by a natural monopoly entity of illegal actions (inaction) provided for in part 4 of the commented article, which resulted in the receipt of income (revenue).

The objective side of the administrative offense provided for in Part 5 of Article 164 of the Administrative Code is the commission by the natural monopoly entity of illegal actions provided for in Part 4 of the commented article, with the extraction of income (revenue) as a result.

A distinguishing feature of the offense provided for in Part 4 of the commented article from the offense provided for in Part 5 of the commented article is a sign that a natural monopoly entity does not have income from committing illegal actions provided for in Part 4 of the commented article. If a natural monopoly entity has income (revenue) received by it as a result of committing an administrative offense, the natural monopoly entity is subject to administrative liability under Part 5 of the commented article.

For committing an offense under Part 5 of Article 164 of the Administrative Code, the offender is punished with a fine in the amount of 10% of the income (revenue) received as a result of committing an administrative offense.

The rate for calculating the fine under Part 5 of the commented article is fixed and is not subject to change by the body imposing it.

An administrative penalty under Part 5 of the commented article is imposed on the offender by the authorized body in the field of civil aviation, the authorized body in the field of informatization and communications, the authorized body in the field of natural monopolies, or the court, in case the case is 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.);

Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);

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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