Comment to article 190. Consumer deception The Code of the Republic of Kazakhstan on Administrative Offences
Chapter 15. ADMINISTRATIVE OFFENCES IN THE FIELD OF TRADE AND FINANCE
Chapter 15 of the Administrative Code establishes the composition of administrative offenses in the field of trade and finance and administrative responsibility in the Republic of Kazakhstan for their commission.
In the commented chapter, the structures of administrative offenses are combined on the basis of their inherent common (generic) object of offense. The generic object of administrative offenses in the field of trade and finance is the procedure established in the Republic of Kazakhstan and protected by the state for carrying out activities in the field of trade and finance.
Trading activity (trade) is an activity that includes domestic and foreign trade.
Foreign trade (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.
Internal trade is the business activity of individuals and legal entities aimed at the purchase and sale of goods on the territory of the Republic of Kazakhstan.
In addition, trading activities also include electronic commerce carried out using modern digital technologies.
Electronic commerce is an entrepreneurial activity for the sale of goods carried out through information and communication technologies.
Trade can also be classified into wholesale and retail.
Wholesale trade is an entrepreneurial activity for the sale of goods intended for subsequent sale or other purposes unrelated to personal, family, household and other similar uses.
Retail trade is the business activity of selling to a customer goods intended for personal, family, home, or other non–entrepreneurial use.
The commented chapter covers the establishment of administrative responsibility and the involvement of offenders for administrative offenses in all of the above types of trade, as well as in public procurement and stock trading.
In addition, the commented chapter establishes administrative responsibility for the commission of administrative offenses when sellers (manufacturers, performers) sell their services, works and their results to buyers (consumers, customers).
The commented chapter also combines the elements of administrative offenses that infringe on the procedure established and protected in the legislation of the Republic of Kazakhstan for carrying out activities in the field of finance – professional activities in the financial market when financial organizations sell financial services and financial products to their consumers.
The financial market is a set of relations related to the provision and consumption of financial services, as well as the issuance and circulation of financial instruments.
Professional activity in the financial market is the entrepreneurial activity of providing financial services.
A financial institution is a legal entity engaged in business activities for the provision of financial services.
Financial services are the activities of participants in the insurance market, the securities market, the voluntary accumulative pension fund, banking, the activities of organizations conducting certain types of banking operations carried out on the basis of licenses obtained in accordance with the legislation of the Republic of Kazakhstan, as well as activities not subject to licensing: a single accumulative pension fund; a central depository; a single operator in accounting of state property; mutual insurance companies.
A financial product is a service developed by a financial institution to offer financial services to consumers as part of their professional activities in the financial market.
A consumer of financial services is an individual or legal entity that uses the services of a financial institution, as well as invests its funds in financial instruments.
In addition, the commented chapter establishes the composition of administrative offenses in the field of organizing and maintaining accounting records, preparing and submitting financial statements, organizing and conducting audits, conducting currency transactions, transactions with securities and financial instruments, organizing and conducting cash and non-cash payments.
A separate article in the commented chapter establishes administrative responsibility for violating the legislation of the Republic of Kazakhstan on countering the legalization (laundering) of proceeds from crime and the financing of terrorism.
The subjective side of offenses, the subjects of which, according to the articles of the commented chapter, are legal entities, is not subject to determination due to the existence of a legislative 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.
In cases stipulated in the sanctions of the articles of the commented chapter, a differentiated fine may be imposed for committing an offense, depending on the legal status of the offender, and if the offender is a business entity, then also depending on which category of business entities he belongs to.
In this regard, the body bringing the offender to administrative responsibility, before bringing a person to justice, must first establish the legal status of this person (an individual, official, legal entity, non-profit organization, business entity) and the category of entrepreneurship to which he belongs if he is an entrepreneur.
According to Article 24 of the Entrepreneurial Code of the Republic of Kazakhstan, 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 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-scale 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.
Cases of administrative offenses in the field of trade and finance are considered by the relevant authorized state bodies, with the exception of those structures that provide for the deprivation of a license, special rights, suspension or termination of activities, confiscation of objects of offense, which can only be applied by the courts, as the main or additional type of punishment for offenses. In addition, cases of administrative offenses of certain types, regardless of the type of administrative penalty prescribed for their commission, can only be considered by the courts by virtue of a direct indication of this in the relevant provisions of the Administrative Code.
Article 190. Consumer deception
1. Measuring, weighing, miscalculation, misleading about consumer properties or the quality of goods (services) or other deception of consumers by individual entrepreneurs or organizations engaged in trading activities and the provision of services, -
They impose a fine on individuals in the amount of ten, on small businesses - in the amount of twenty, on medium-sized businesses - in the amount of thirty, on large businesses - in the amount of fifty monthly calculation indices.
2. The actions 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 for individuals in the amount of thirty, for small businesses in the amount of fifty, for medium-sized businesses in the amount of seventy-five, for large businesses in the amount of one hundred monthly calculation indices, with the deprivation of a license and suspension or prohibition of activities for up to three years.
3. Actions provided for in the first part of this Article that have caused significant damage, -
They entail a fine for individuals in the amount of thirty, for small businesses in the amount of fifty, for medium-sized businesses in the amount of seventy-five, for large businesses in the amount of one hundred monthly calculation indices, with the deprivation of a license or suspension or prohibition of activities for up to three years.
4. Actions provided for in the first part of this article that have caused major damage, -
They entail a fine for individuals in the amount of fifty, 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 two hundred monthly calculation indices, with the deprivation of a license or suspension or prohibition of activities for up to three years.
Note. In relation to this article, a significant amount of damage is an amount exceeding one monthly calculation index, and a large amount of damage is an amount of at least three monthly calculation indices.
The commented article establishes administrative liability for consumer deception.
The generic object of offenses provided for in Article 190 of the Administrative Code is the procedure established in the legislation of the Republic of Kazakhstan and protected by the state for trading in the Republic of Kazakhstan.
The direct object of the administrative offenses provided for in the commented article are the rules of trade established by the legislation of the Republic of Kazakhstan in the Republic of Kazakhstan.
190 of the Administrative Code, by virtue of the direct indication of this in the sanctions of the commented article, are subjects of small, medium and large businesses, as well as individuals engaged in trading activities and (or) providing services.
190 of the Administrative Code, the legislator indicates the consumer in the commented article as a victim of the commission of an offense.
A consumer is an individual who intends to order or purchase, or who orders, purchases, and/or uses a product (work, service) exclusively for personal, family, home, or other use unrelated to entrepreneurial activity.
According to Part 1 of Article 745 of the Administrative Code, a victim is a natural or legal person who has suffered physical, property or moral harm by an administrative offense. The case of an administrative offense is considered with the participation of the victim. In his absence, the case may be considered only in cases where there is evidence that he was properly notified of the place and time of the case and if he did not file a motion to adjourn the case.
Accordingly, the presence and participation of the consumer as a victim in the case of an administrative offense under the commented article is mandatory.
The subjective side of the acts provided for in Article 190 of the Administrative Code, for the individuals who committed it (including individual entrepreneurs) 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 offences provided for in the commented article are formal. In order to impose penalties on an offender under the commented article, it is not necessary to establish the fact and amount of damage caused to third parties by the commission of an offense.
At the same time, if the unlawful actions of the offender cause physical, material or moral harm to the consumer, such harm may be claimed by the consumer for compensation in full, since bringing the offender to administrative responsibility under the commented article does not exempt this person from eliminating the violations committed by him and compensating the damage caused to the consumer.
Part 1 of the commented article establishes administrative liability for measuring, weighing, cheating, misleading about consumer properties or quality of goods (services) or other deception of consumers by individual entrepreneurs or organizations engaged in trading activities and the provision of services.
The objective side of the offense provided for in Part 1 of Article 190 of the Administrative Code is that the offender commits unlawful (and for individuals, including individual entrepreneurs, culpable) actions (inaction) in the form of measuring, weighing, calculating, misleading consumers about consumer properties or the quality of goods (services) or other deception of consumers when trading or the provision of services by them.
A commodity is any product of labor that has not been withdrawn from circulation and is intended for sale or exchange.
A service is an activity aimed at meeting the needs of consumers, the results of which have no material expression.
The commented article explicitly specifies the types of illegal acts provided for in Part 1 of the commented article as the objective side of the offense.: 1) measuring, 2) weighing, 3) miscalculation, 4) misleading about consumer properties or the quality of goods (services), and 5) other consumer deception. The reference in the commented article to another deception as an unlawful act makes the list of unlawful acts under Part 1 of the commented article not exhaustive.
By committing any of the above-mentioned acts, the offender pursues the goal of obtaining unjustified additional income from an operation (transaction) for the sale of goods (services) to the consumer that he needs.
Consumer measurement is a type of deception of the consumer (buyer, customer), expressed in the deliberate distortion by the seller (performer) of information about the metric data (length, height, width, area, volume, size, time of provision) of the goods (services) sold in the direction of increasing them by manipulating the measured goods (services). measuring instruments, conventional dimensions, calculations of mass or time in order to obtain additional income from the consumer (buyer, customer, payer) for the trade operation (transaction) performed at the same time.
Hanging a consumer is a type of deception of a consumer (buyer, customer), expressed in the deliberate distortion by the seller of information about the weight (mass) of the goods sold (sold) to the consumer in the direction of its unjustified increase by manipulating scales and other control and measuring devices, accessories, packaging, and the goods themselves in order to receiving additional income from the consumer (buyer, customer, payer) for the trade operation (transaction) performed at the same time.
Consumer fraud is a type of deception of the consumer (buyer, customer), expressed in the deliberate distortion by the seller (performer) of information about the payable value of the sold (sold) goods (services) in the direction of its unjustified increase by manipulating data on prices, tariffs, quantity of goods (services) and calculation of its value in order to receiving additional income from the consumer (buyer, customer, payer) for the trade operation (transaction) performed at the same time.
Misleading the consumer – this is the deliberate creation by the seller (performer) of conditions and prerequisites for the formation of the consumer (buyer, customer) of his own false (not corresponding to reality) or distorted (not fully corresponding to reality) ideas about the consumer properties and quality of the product (service), its characteristics, as well as about its manufacturer (manufacturer, performer) in order to the sale of this product (service) and receiving for it from the consumer (buyer, customer, payer) unjustified income from a trade operation (transaction).
Consumer deception is the deliberate creation by the seller of a false (untrue) or distorted view by the consumer regarding the consumer properties and quality of a product (service), its characteristics, as well as regarding its manufacturer (producer, performer) in order to sell this product (service) and receive it from the consumer (buyer, customer, the payer) unjustified income from a trading operation (transaction).
According to the pp.1), 3), 4), 5) and 6) Article 7 of the Law of the Republic of Kazakhstan dated May 4, 2010 No. 274-IV "On Consumer Rights Protection", consumers have the right to freely choose goods (works, services) and freely conclude contracts for their purchase; to receive information about the product (work, service), as well as about the seller (manufacturer, performer); for the purchase of safe goods (work, services) and the proper quality of the goods (work, services).
Accordingly, in order to ensure the realization of consumer rights, the seller (manufacturer, performer), as required by Article 24 of the Law of the Republic of Kazakhstan "On Consumer Rights Protection", is obliged to: 1) provide information about the product (work, service), as well as about the seller (manufacturer, performer) in Kazakh and Russian; 2) ensure the safety of the product (work, service); 3) ensure the free choice of goods (work, service); 4) ensure the proper quality of the product (work, service); 5) ensure the exchange or return of goods of both proper and improper quality; when selling goods (performing work, rendering services), issue a document confirming the purchase of goods (performing work, rendering services). In addition, the seller (manufacturer) is obliged to indicate the value of the goods, decorated with a price label, displayed in the internal and external storefronts of the shopping facility, in tenge, as well as to ensure the storage conditions of the goods. The manufacturer (contractor) is obliged to indicate the cost of works and services in tenge in writing. The manufacturer is obliged to set the expiration date and the shelf life of the product. Before concluding a purchase and sale agreement, the seller in electronic commerce is obliged to provide the consumer with information about the payment procedure for the goods and their cost. The seller (manufacturer) is obliged to sell, and the consumer has the right to buy the goods according to the specified value, decorated with a price label displayed in the internal and (or) external storefronts of the shopping facility.
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 the offense provided for in Part 1 of Article 190 of the Administrative Code.
In the description of the objective side of the offense provided for in Part 3 of Article 190 of the Administrative Code, a sign of significant damage caused by the seller to the consumer as a result of the commission of the offense is added to the act provided for in Part 1 of the commented article.
According to the note to the commented article, an amount exceeding one monthly calculation index is recognized as a significant amount of damage.
The composition of the offense provided for in Part 3 of the commented article is material. In order to calculate and impose a fine on an offender under Part 3 of the commented article, it is necessary to establish the fact and amount of damage caused to the consumer by measuring, weighing, calculating, misleading about consumer properties or the quality of goods (services) or other deception.
If the amount of damage caused by the offense is more than 3 MCI, then in this case the actions of the offender should be qualified already according to part 4 of the commented article. If the damage is 1 MCI or less or is completely absent in material terms, then the illegal act of deceiving consumers should be qualified according to part 1 of the commented article.
For committing an act provided for in Part 1 of Article 190 of the Administrative Code, which caused significant damage, the offender is punished by a fine with the deprivation of a license or suspension or prohibition of activities for up to three years. At the same time, the deprivation of a license or the suspension or prohibition of activities for up to three years are alternative punishments applied to each other at the discretion of the court, depending on the circumstances of the case. However, the use of one of these types of punishment (deprivation of a license or suspension or prohibition of activity for up to 3 years) in addition to a fine is mandatory. Suspension or prohibition of activities for a period of up to three years are also alternative types of additional punishment applied by the court at its discretion, depending on the circumstances of the case.
Depending on the legal status of the offender and the business category to which he belongs, the amount of the fine is:
- for individuals and officials – 30 MCI,
- for small businesses – 50 MCI,
- for medium–sized businesses - 75 MCI,
- for large business entities – 100 MCI.
The amounts of fines for each of the above categories of subjects of an offense are fixed and are not subject to change by the body imposing them.
This penalty is imposed on offenders only by the court by virtue of a direct indication of this in the relevant norm of the Administrative Code.
Officials of the internal affairs bodies have the right to draw up protocols on administrative offenses provided for in Part 2 of the commented article.
Part 4 of the commented article establishes a more severe punishment for the commission of actions provided for in Part 1 of the commented article if they have caused major damage.
At the same time, the object, the subjective side and the subjects of the offense provided for in Part 4 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 190 of the Administrative Code.
In the description of the objective side of the offense provided for in Part 4 of Article 190 of the Administrative Code, an indication is added to the actions provided for in Part 1 of the commented article that the seller caused major damage to the consumer as a result of the offense.
According to the note to the commented article, a large amount of damage is recognized as an amount exceeding three monthly calculation indices.
The composition of the offense provided for in Part 4 of the commented article is material. In order to calculate and impose a fine on an offender under Part 4 of the commented article, it is necessary to establish the fact and amount of damage caused to the consumer by measuring, weighing, calculating, misleading about consumer properties or the quality of goods (services) or other deception.
For committing an act provided for in Part 1 of Article 190 of the Administrative Code, which caused major damage, the offender is punished by a fine with the deprivation of a license or suspension or prohibition of activities for up to three years. At the same time, the deprivation of a license or the suspension or prohibition of activities for up to three years are alternative punishments applied to each other at the discretion of the court, depending on the circumstances of the case. However, the use of one of these types of punishment (deprivation of a license or suspension or prohibition of activity for up to 3 years) in addition to a fine is mandatory. Suspension or prohibition of activities for a period of up to three years are also alternative types of additional punishment applied by the court at its discretion, depending on the circumstances of the case.
Depending on the legal status of the offender and the business category to which he belongs, the amount of the fine is:
- for individuals and officials – 50 MCI,
- for small businesses – 75 MCI,
- for medium–sized businesses - 100 MCI,
- for large business entities – 200 MCI.
The amounts of fines for each of the above categories of subjects of an offense are fixed and are not subject to change by the body imposing them.
This penalty is imposed on offenders only by the court by virtue of a direct indication of this in the relevant norm of the Administrative Code.
Officials of the internal affairs bodies have the right to draw up protocols on administrative offenses provided for in Part 4 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
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
