Comment to Article 187. Violation of the legislation of the Republic of Kazakhstan on tourism activities The Code of the Republic of Kazakhstan on Administrative Offences

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1. Failure, untimely or incomplete presentation by persons engaged in tourist activities to tourists of information about the specifics of travel, the dangers they may encounter when traveling, specified in the rules for the provision of tourist services, or failure to implement preventive measures aimed at ensuring the safety of tourists, -

They impose a fine on small businesses in the amount of seventeen, on medium-sized businesses - in the amount of twenty-five, on large businesses - in the amount of fifty monthly calculation indices.

2. Provision of tourist services by persons engaged in tourist activities without concluding a written contract for tourist services -

entails a fine for small businesses in the amount of seventeen, for medium-sized businesses - in the amount of twenty-five, for large businesses - in the amount of fifty monthly calculation indices, with the suspension of the license.

3. The actions (inaction) provided for in the first and second parts of this Article, committed repeatedly within a year after the imposition of an administrative penalty, -

They impose a fine on small businesses in the amount of thirty-five, on medium-sized businesses in the amount of fifty, on large businesses in the amount of one hundred monthly calculation indices, with the deprivation of a license.

4. Failure or late provision by persons engaged in tourism activities to interested government agencies and the tourist's family of information about emergencies with tourists during travel -

entails a fine for small businesses in the amount of thirty-five, 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 the license.

5. The action (inaction) provided for in part four of this article, committed repeatedly within a year after the imposition of an administrative penalty, -

entails a fine for small businesses in the amount of seventy-five, for medium-sized businesses - in the amount of one hundred, for large businesses - in the amount of one hundred and fifty monthly calculation indices, with the deprivation of a license.

The commented article establishes administrative liability for violation of the legislation of the Republic of Kazakhstan on tourism activities.

The legislation of the Republic of Kazakhstan on tourism activities, according to paragraph 1 of Article 2 of the Law of the Republic of Kazakhstan dated June 13, 2001 No. 211-II "On Tourism activities in the Republic of Kazakhstan", is based on the Constitution of the Republic of Kazakhstan and consists of the Civil Code of the Republic of Kazakhstan, the Law of the Republic of Kazakhstan "On Tourism Activities in the Republic of Kazakhstan", and other regulatory legal acts of the Republic of Kazakhstan.

Tourism activity is the entrepreneurial activity of individuals or legal entities providing tourist services.

The generic object of offenses provided for in Article 187 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 187 of the Administrative Code is the procedure established by the legislation of the Republic of Kazakhstan and protected by the state for carrying out tourist activities.

The subjects of offenses provided for in Article 187 of the Administrative Code are persons engaged in tourist activities.

Persons engaged in tourism activities are travel agents, tour operators, tourism instructors, as well as guides (translation guides) and guides who provide tourist services on their own.

A travel agent is an individual and (or) a legal entity engaged in travel agency activities (travel agency activities), i.e. entrepreneurial activities to promote and sell a tourist product created by a tour operator.

A tour operator is an individual and (or) a legal entity licensed for tourist operator activities (tour operator activities) and engaged in licensed tour operator activities, i.e. entrepreneurial activities for the formation of a tourist product, its promotion and sale to travel agents and tourists, as well as for the promotion and sale of a tourist product formed by a non–resident of the Republic of Kazakhstan. A tourist product is a set of tourist services sufficient to meet the needs of a tourist during a trip. Tourist services are services necessary to meet the needs of a tourist, provided during his trip and in connection with this trip (accommodation, transportation, meals, excursions, services of tourism instructors, guides (translation guides), and other services provided by the tourist service agreement, provided depending on the purpose of the trip.

A tourism instructor is a professionally trained individual who has the appropriate qualifications and experience on tourist routes.

A guide (guide-translator) is a professionally trained individual who provides sightseeing, informational, and organizational services to tourists to familiarize themselves with tourist resources in the country (place) of temporary stay.

A tour guide is a professionally trained individual who has the appropriate qualifications to provide sightseeing, informational, and organizational services to tourists to familiarize themselves with tourist resources in the country (place) of temporary stay.

According to the imperative requirement of Article 23 of the Law of the Republic of Kazakhstan "On Tourist activities in the Republic of Kazakhstan", only a citizen of the Republic of Kazakhstan can be a guide (guide-interpreter), a tourism instructor, a tour guide. Accordingly, the implementation of such activities in the Republic of Kazakhstan by foreigners and stateless persons constitutes an administrative offense that provides for administrative liability for engaging in business by persons who are prohibited from doing so, without bringing them to administrative responsibility under the commented article.

Tour operator activity can be carried out by the tour operator only after obtaining the appropriate license. The activities of a travel agent, guide (translator), tour guide or tourism instructor can be carried out after submitting, in accordance with art. 15-3 of the Law of the Republic of Kazakhstan "On Tourism Activities" and the Law of the Republic of Kazakhstan "On Permits and Notifications", a notification of the commencement of activities. When carrying out activities without obtaining a license or without sending a notification, persons actually engaged in tourism activities are held liable under the relevant articles for carrying out activities without a permit (license) or without sending a notification. Bringing an offender to administrative responsibility under the specified articles of the Administrative Code does not exempt them from administrative responsibility for the offenses they have committed under the commented article.

The subjective side of administrative offenses provided for in Article 187 of the Administrative Code for offenders who are individuals (including individual entrepreneurs) 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 the offense, 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 Article 187 of the Administrative Code are formal. To bring to administrative responsibility for their commission, it is not necessary to establish the fact that the offender caused material damage to the state, organization or citizen as a result of violation of the legislation of the Republic of Kazakhstan on tourism activities.

However, if material damage is caused as a result of an offense, such damage may be claimed in full by the person concerned, whose rights and interests have been violated, since bringing the offender to administrative responsibility under the commented article does not exempt him from eliminating the violations and compensating for the damage caused.

Part 1 of the commented article establishes administrative liability for failure, late or incomplete presentation by persons engaged in tourist activities to tourists of information about the specifics of travel, the dangers they may encounter when traveling, specified in the rules for the provision of tourist services, or failure to implement preventive measures aimed at ensuring the safety of tourists.

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 – also guilty) actions, expressed in the failure, untimely or incomplete presentation by persons engaged in tourist activities to tourists of information about the specifics of travel, the dangers they may encounter when traveling, specified in the rules of provision tourist services, or failure to implement preventive measures aimed at ensuring the safety of tourists.

A tourist is an individual who visits a country (place) of temporary stay for a period of twenty–four hours to one year and spends at least one night in it for recreational, educational, professional, business, sports, religious and other purposes without engaging in paid activities.

At the request of paragraph 4 of art. 26 of the Law of the Republic of Kazakhstan "On Tourism Activities", persons engaged in tourism activities are required to provide tourists in writing three days before the start of the trip with information about the specifics of travel, including necessary and reliable information about the rules of entry, exit and stay in the country (place) of temporary stay, legislation, and customs of the local about religious rituals, shrines, natural monuments, history, culture and other tourist attractions that are under special protection, the state of the environment, as well as the dangers, which they may encounter when traveling, and implement preventive measures aimed at ensuring the safety of tourists.

According to paragraph 2 of Article 26 of the above-mentioned Law, the safety of tourists is understood as the personal safety of tourists, the safety of their property and non-damage to the environment during travel, as well as a set of measures aimed at preventing the use of tourism for illegal migration and transit to third countries, sexual, labor and other exploitation of citizens.

The amount of the fine for committing an offense under Part 1 of Article 187 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 – 17 MCI,

- for medium–sized businesses - 25 MCI

- for large business entities – 50 MCI.

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

Cases of administrative offences provided for in Part 1 of the commented article are considered and administrative penalties for offenders for their commission are imposed by the authorized body in the field of tourism activities or by the court, if the case is considered in court.

Part 2 of the commented article establishes administrative responsibility for the provision of tourist services by persons engaged in tourist activities, without concluding a written contract for tourist services.

The objective side of the offense provided for in Part 1 of the commented article is characterized by the commission by the person providing tourist services of illegal (and for individuals – also guilty) actions, expressed in the provision of tourist services without concluding a written contract for tourist services.

A travel service agreement is an agreement between a person engaged in tourism activities and a tourist for the provision of paid travel services.

As required by clause 3 of Article 15 of the Law of the Republic of Kazakhstan "On Tourism Activities", the provision of tourist services is carried out on the basis of a contract. The contract for tourist services is concluded in writing, with the exception of contracts concluded by a guide (translator guide) and a tour guide, and must comply with the legislation of the Republic of Kazakhstan. The essential terms of the tourist service agreement are established by a standard agreement approved by the Government of the Republic of Kazakhstan.

Accordingly, guides and guides are not subject to administrative responsibility under Part 2 of the commented article.

As required by clause 3 of Article 15 of the Law of the Republic of Kazakhstan "On Tourism Activities", the promotion and sale of a tourist product by a travel agent is carried out on the basis of an agency agreement for the sale of a tourist product concluded with the tour operator in writing. An agency agreement for the sale of a tourist product between a tour operator and a travel agent must contain information about the tour operator who created the tourist product, the authority of the travel agent to make transactions with tourists on behalf of the tour operator, the procedure for interaction between the tour operator and the travel agent in the case of a tourist or third parties providing individual tourist services included in the tourist product, claims, a description of the tourist route, reliable information about the tourist product and the responsibility of each party to the tourist for not providing or providing false information about the tourist product. The tour operator is liable to the tourist in accordance with the laws of the Republic of Kazakhstan for non-fulfillment or improper fulfillment of obligations under the tourist service agreement (including for failure to provide or improper provision of services included in the tourist product to tourists, regardless of who should have provided or provided these services).

Thus, failure by tour operators and travel agents to fulfill the obligation imposed on them by law to conclude a written contract for the provision of tourist services constitutes an administrative offense provided for in Part 2 of the commented article, for which an administrative penalty is imposed in the form of a fine, and in relation to tour operators – in the form of a fine and suspension of the license for tourist operator activities.

According to paragraph 2 of Article 15 of the Law of the Republic of Kazakhstan "On Tourism Activities", the suspension of a license for tour operator activity entails a ban on the provision of tourist services, with the exception of obligations arising from previously concluded contracts.

Depending on the business category to which the offender belongs, the amount of the fine is:

- for small businesses – 17 MCI,

- for medium–sized businesses - 25 MCI

- for large business entities – 50 MCI.

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

Cases of administrative offenses provided for in the commented article are considered and administrative penalties for offenders for their commission are imposed by the court by virtue of a direct indication of this in the relevant norm of the Administrative Code.

Officials of the authorized body in the field of tourism activities have the right to draw up protocols on administrative offenses provided for in Part 2 of the commented article.

The execution of a decision to suspend a license may be terminated prematurely by a judge, an authorized body (official) who imposed the appropriate administrative penalty, on the basis of a petition from the person brought to administrative responsibility or his representative (legal representative) in cases where the circumstances that served as the basis for imposing the penalty have been eliminated.

Part 3 of the commented article establishes a more severe penalty for repeated commission of any of the acts provided for in parts 1 or 2 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 3 of the commented article coincide in their characteristics with the object, the subjective side and the subjects of any of the offenses provided for in Part 1 or 2 of Article 187 of the Administrative Code.

In the description of the objective side of the offense provided for in Part 3 of Article 187 of the Administrative Code, a sign of repetition is added to any of the acts provided for in parts 1 or 2 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 Parts 1 or 2 of Article 187 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 3 of Article 187 of the Administrative Code.

Repetition as a qualifying feature is established not only in fact by identifying the number and nature of illegal acts committed by the violator during the year, but also legally – by establishing the fact of bringing this person to administrative responsibility for committing any of the offenses provided for in Parts 1 or 2 of Article 187 of the Administrative Code, the presence of an effective and unenforceable resolution of the authorized body or courts on the imposition of an administrative penalty under Part 1 or 2 of art. 187 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 or 2 of Article 187 of the Administrative Code, then bringing him to responsibility under Part 3 of Article 187 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 or 2 of art. 187 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 any of the acts provided for in Parts 1 or 2 of Article 187 of the Administrative Code within a year after the imposition of the penalty, the offender is punished with a fine, and the tour operator is punished with a fine and deprivation of a license to operate a tour operator.

The amount of the fine for committing an offense under Part 3 of Article 187 of the Administrative Code depends on which category of business the offender belongs to, and amounts to:

- for small businesses – 35 MCI,

- for medium–sized businesses - 50 MCI,

- for large business entities – 100 MCI.

The case of an administrative offense under Part 3 of the commented article is being considered and an administrative penalty is imposed on the offender by the court, since cases related to the deprivation of licenses are subject to consideration by the courts. Officials of the authorized body in the field of tourism activities have the right to draw up protocols on administrative offenses provided for in Part 3 of the commented article.

Part 4 of the commented article establishes administrative responsibility for the failure or late provision by persons engaged in tourism activities to interested government agencies and the tourist's family of information about emergencies with tourists during travel.

The objective side of the offense provided for in Part 4 of the commented article is characterized by the commission of illegal actions by a person providing tourist services, expressed in the failure or late provision by persons engaged in tourist activities, at their own expense, to interested government agencies and the tourist's family of information in oral and written form about emergencies with tourists during travel.

At the request of the norm of clause 5 of Article 26 of the Law of the Republic of Kazakhstan "On Tourism Activities", persons engaged in tourism activities are required to immediately inform the authorized body and the authorized body in the field of civil protection, as well as the family of the tourist from the moment when they learned or should have learned about an emergency with a tourist during a trip. If an emergency has occurred with foreign tourists on the territory of the Republic of Kazakhstan or with tourists who are citizens of the Republic of Kazakhstan outside the Republic of Kazakhstan, persons engaged in tourism activities are also required to inform the diplomatic service authorities.

At the request of paragraph 4 of Article 18 of the Law of the Republic of Kazakhstan "On Tourism Activities", a person engaged in tourism activities is obliged, at his own expense, to notify the tourist's family in writing about an emergency with a tourist.

Failure to perform or improper performance by persons engaged in tourism activities of the duty assigned to them by law constitutes an administrative offense provided for in Part 4 of the commented article, for which an administrative penalty is imposed in the form of a fine, and in respect of tour operators – in the form of a fine and suspension of the license for tourist operator activities. According to paragraph 2 of art. 15 of the Law of the Republic of Kazakhstan "On Tourism Activities", the suspension of the license for tour operator activity entails a ban on the provision of tourist services, with the exception of obligations arising from previously concluded contracts.

The amount of the fine for committing an offense under Part 4 of Article 187 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 – 35 MCI,

- for medium–sized businesses - 50 MCI

- for large business entities – 100 MCI.

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

Officials of the authorized body in the field of tourism activities have the right to draw up protocols on administrative offenses provided for in Part 4 of the commented article.

Part 5 of the commented article establishes a more severe penalty for repeated commission of the act provided for in Part 4 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 5 of the commented article coincide in their characteristics with the object, the subjective side and the subjects of the offense provided for in Part 4 of Article 187 of the Administrative Code.

In the description of the objective side of the offense provided for in Part 5 of Article 187 of the Administrative Code, a sign of repetition is added to the act provided for in part 4 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 4 of Article 187 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 5 of Article 187 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 4 of Article 187 of the Administrative Code, the existence of an effective and unturned court order imposing an administrative penalty under Part 4 art . 187 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 4 of Article 187 of the Administrative Code, then bringing him to responsibility under Part 5 of Article 187 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 4 of art. 187 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 the act provided for in Part 4 of Article 187 of the Administrative Code within a year after the imposition of the penalty, the offender is punished with a fine, and the tour operator is punished with a fine and deprivation of a license.

The amount of the fine for committing an offense under Part 5 of Article 187 of the Administrative Code is:

- for small businesses – 75 MCI,

- for medium–sized businesses - 100 MCI,

- for large business entities – 150 MCI.

The amount of the fine is fixed for each category of offenders and is not subject to change by the body imposing it.

The case of an administrative offense under Part 5 of the commented article is being considered and an administrative penalty is imposed on the offender by the court, since cases related to the deprivation of licenses are subject to consideration by the courts.

Officials of the authorized body in the field of tourism activities have the right to draw up protocols on administrative offenses provided for in Part 5 of the commented article.

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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