Comment to article 195. The absence of an individual entrepreneur or a legal entity's equipment (device) designed for making payments using payment cards  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. The absence of an individual entrepreneur or a legal entity obliged to accept payments using payment cards when carrying out trading activities (performing work, providing services) on the territory of the Republic of Kazakhstan, equipment (devices) intended for making payments using payment cards, -

     entails a warning.

     2. The act 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 small businesses in the amount of forty, for medium-sized businesses in the amount of sixty, for large businesses in the amount of eighty monthly calculation indices.

     The commented article establishes administrative responsibility for the absence of an individual entrepreneur or a legal entity of equipment (device) intended for making payments using payment cards.

     The generic object of offenses provided for in Article 195 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 administrative offenses provided for in the commented article is the procedure established by the legislation of the Republic of Kazakhstan and protected by the state for making payments using payment cards.

     The subjects of offenses provided for in Article 195 of the Administrative Code are individual entrepreneurs and legal entities that are required to accept payment cards for goods (works, services) when carrying out trading activities in the territory of the Republic of Kazakhstan.

     The subjective side of the acts provided for in Article 195 of the Administrative Code, for the individual entrepreneurs who committed them, is characterized by guilt in the form of intent or negligence.  

     The offences provided for in the commented article are formal. In order to bring a person to administrative responsibility and calculate a fine under the commented article, it is not necessary to establish the fact and amount of damage caused by the offense.

     Part 1 of the commented article establishes administrative responsibility for the absence of an individual entrepreneur or a legal entity that is required to accept payments using payment cards when carrying out trading activities (performing work, providing services) on the territory of the Republic of Kazakhstan, equipment (devices) designed to make payments using payment cards.

     The objective side of the administrative offense provided for in Part 1 of Article 195 of the Administrative Code is expressed in inaction committed by failing to fulfill the obligation to purchase and use equipment (device) intended for making payments using payment cards.

     An electronic terminal is an electronic and mechanical device designed for making payments and (or) money transfers, or operations for accepting and (or) issuing cash, or for carrying out exchange operations with foreign currency, or for carrying out other types of operations, as well as the formation of appropriate supporting documents.

     At the request of the norm, paragraph 4 of art. 39 of the Law of the Republic of Kazakhstan "On Payments and Payment Systems in the Republic of Kazakhstan", individual entrepreneurs and (or) legal entities engaged in certain types of activities according to the list approved by the Government of the Republic of Kazakhstan and applying the generally established procedure for settlements with the budget in accordance with the tax legislation of the Republic of Kazakhstan, with the exception of public telecommunications networks located in places where there is no public telecommunications network, are required to ensure the installation and the use of equipment (devices) intended for accepting payments using payment cards in the places of their activities, and also accept payments using payment cards. Individual entrepreneurs and (or) legal entities applying a special tax regime in accordance with the tax legislation of the Republic of Kazakhstan and operating in the capital, cities of republican and regional significance, with the exception of those located in places where there is no public telecommunications network, are also required to ensure the installation and use of such equipment (devices), as well as accept payments using payment cards.

     The above requirements do not apply to an individual entrepreneur and (or) a legal entity that performs monetary settlements during trading operations, performing work, or providing services without using cash.

     According to the list approved by the Government of the Republic of Kazakhstan, the types of activities that require the use of equipment (devices) designed to accept payments using payment cards are:

     1) wholesale and retail trade of cars and motorcycles, their repair and maintenance;  

     2) Wholesale and retail trade;  

     3) provision of services by hotels;

     4) provision of restaurant services, other types of catering and serving of drinks;

     5) sale of travel documents (tickets), baggage and baggage receipts for air and rail transport;

     6) provision of cargo handling, warehousing and storage services, transportation support services and cargo transportation services;

     7) activities of tour operators and other organizations providing services in the field of tourism (except travel agents);

     8) insurance activities;

     9) Health care activities;

     10) educational activities;

     11) distribution of films, video and television programs, screening of films;

     12) activities of fitness clubs, sports clubs, discos;

     13) gambling and betting activities;

     14) provision of bowling (bowling alley) and billiards services.

     At the same time, due to a reservation made in the specified List, ensuring the installation and use of equipment (devices) in the places where these types of activities are carried out, intended for accepting payments using payment cards, as well as receiving payments using payment cards, do not apply to individual entrepreneurs and (or) legal entities operating in the wholesale sector. and retail trade in agricultural products of their own production, aquaculture (fishing) products of their own production; activities carried out through non-stationary retail facilities.

     Failure by individual entrepreneurs and legal entities to comply with the obligation to install and use equipment (devices) in their places of operation designed to accept payments using payment cards, while carrying out activities approved by the Government of the Republic of Kazakhstan, constitutes a complete offense provided for in Part 1 of the commented article.

     For the commission of an offense provided for in the commented article, the person who committed it is punished in the form of a warning.

     This penalty is imposed on offenders by specifying it in the decision on the imposition of an administrative penalty and its mandatory announcement, as well as handing over or sending a copy of the decision to the offender. In this case, in order to qualify further actions of the offender when committing similar offenses in the future, the person is considered to have been subjected to administrative punishment from the moment of delivery (referral) He likes it.

     This penalty is imposed on the offender by the state revenue authorities or the court, if the case is considered in court.

     Part 2 of the commented article establishes a more severe penalty 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 195 of the Administrative Code.  

     In the description of the objective side of the offense provided for in Part 2 of Article 195 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 a person has previously committed any of the actions (omissions) provided for in Part 1 of Article 195 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 195 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 acts provided for in Part 1 of Article 195 of the Administrative Code, the existence of an effective resolution of the state revenue authority or the court on the imposition of administrative penalties. according to part 1 of art . 195 of the Administrative Code, the fact of its announcement, delivery or referral to an official and the expiration of a one-year period from the date of imposition of the penalty.

For repeated commission of the acts provided for in Part 1 of Article 195 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 195 of the Administrative Code is:

     - for small businesses - 40 MCI,  

     - for medium-sized businesses - 60 MCI,  

     - for large business entities - 80 MCI.

     This penalty is imposed on the offender by the state revenue authorities or the court, if 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.);  

     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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