Comment to article 200. Violation of the requirements of the legislation of the Republic of Kazakhstan on the sale of alcoholic beverages The Code of the Republic of Kazakhstan on Administrative Offences

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Comment to article 200. Violation of the requirements of the legislation of the Republic of Kazakhstan on the sale of alcoholic beverages The Code of the Republic of Kazakhstan on Administrative Offences

1. Sale of alcoholic beverages to persons under the age of twenty-one -

entails a fine for individuals in the amount of ten, for small businesses - in the amount of forty, for medium-sized businesses - in the amount of eighty, for large businesses - in the amount of one hundred and twenty monthly calculation indices, with the suspension of the license.

2. The action provided for in the first part of this article, committed repeatedly within a year after the imposition of an administrative penalty, -

entails a fine for individuals in the amount of twenty, for small businesses - in the amount of eighty, for medium-sized businesses - in the amount of one hundred and forty, for large businesses - in the amount of one hundred and eighty monthly calculation indices, with the deprivation of a license.

3. Retail sale of alcoholic beverages, except for sale in restaurants, bars and cafes, as well as on passenger aircraft, passenger ships of sea transport, in dining cars of passenger trains:

from 23 to 8 o'clock the next day;

with a volume fraction of ethyl alcohol in excess of thirty percent from 21 to 12 o 'clock the next day -

4. The action provided for in the third part of this article, committed repeatedly within a year after the imposition of an administrative penalty, -

The commented article establishes administrative liability for violating the requirements of the legislation of the Republic of Kazakhstan on the sale of alcoholic beverages.

Alcoholic beverages are food products with a volume fraction of ethyl alcohol of more than one and a half percent, produced using ethyl alcohol from food raw materials and (or) alcohol–containing food products, with the exception of alcohol-containing medical products registered as medicines in accordance with the legislation of the Republic of Kazakhstan in the field of healthcare.

The sale of alcoholic beverages is understood as both its retail and wholesale sales.

Retail sale of alcoholic beverages is the sale of alcoholic beverages for its further consumption or non–commercial use, carried out in stationary premises equipped with a sales floor and on the territories of restaurants, bars and cafes, as well as on passenger aircraft, passenger ships of sea transport, in dining cars of passenger trains equipped with a cash register machine with fiscal memory.

Wholesale sale of alcoholic beverages is the release of alcoholic beverages from warehouses to the address specified in the license, without volume restrictions.

The generic object of offenses provided for in Article 200 of the Administrative Code is the procedure established in the legislation of the Republic of Kazakhstan and protected by the state for carrying out trade activities 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 the sale of alcoholic beverages in the Republic of Kazakhstan.

The subjects of offenses provided for in Article 200 of the Administrative Code are individuals, small, medium and large businesses.

The subjective side of the acts provided for in Article 200 of the Administrative Code, for the individuals and individual entrepreneurs who committed them, is characterized by guilt in the form of intent.

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 sale of alcoholic beverages to persons under the age of twenty-one.

The objective side of the administrative offense provided for in Part 1 of Article 200 of the Administrative Code is expressed in the commission of illegal actions by a person engaged in the sale of alcoholic beverages to a person under the age of 21.

According to the legislative requirement of subclause 1) clause 14 of Article 159 of the Code of the Republic of Kazakhstan "On the Health of the people and the healthcare system", retail sale of alcoholic beverages to persons under the age of twenty-one is prohibited.

Violation by sellers of the specified legislative prohibition forms the final composition of the offense provided for in Part 1 of the commented article.

For committing an offense under Part 1 of the commented article, the person who committed it is punished with a fine and suspension of the license.

The amount of the fine for committing an offense under Part 1 of Article 200 of the Administrative Code is:

- for individuals - 10 MCI,

- for small businesses - 40 MCI,

- for medium-sized businesses - 80 MCI,

- for large business entities - 120 MCI.

This penalty is imposed on offenders only by the court, since cases of administrative offenses for which confiscation of the objects of the offense, suspension or revocation of a license, suspension or prohibition of activities are sanctioned are subject to judicial review.

Officials of the internal affairs bodies have the right to draw up protocols on administrative offenses provided for in Part 1 of the commented article.

Part 2 of the commented article establishes a more severe penalty for repeated commission of any of the actions provided for in Part 1 of the commented article within a year after the imposition of an administrative penalty.

At the same time, the object, the subjective side and the subjects of the offense provided for in Part 2 of the commented article coincide in their characteristics with the object, the subjective side and the subjects of the offense provided for in Part 1 of Article 200 of the Administrative Code.

In the description of the objective side of the offense provided for in Part 2 of Article 200 of the Administrative Code, a sign of repetition is added to the actions 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 provided for in Part 1 of Article 200 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 200 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 actions provided for in Part 1 of Article 200 of the Administrative Code, the existence of a court order that has entered into force imposing an administrative penalty under Part 1 of art. 200 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 actions provided for in Part 1 of Article 200 of the Administrative Code within a year after the imposition of the penalty, the offender is punished by a fine with the deprivation of a license.

The amount of the fine for committing an offense under Part 2 of Article 200 of the Administrative Code is:

- for individuals - 20 MCI,

- for small businesses - 80 MCI,

- for medium-sized businesses - 140 MCI,

- for large business entities - 180 MCI.

This penalty is imposed on offenders only by the court, since cases of administrative offenses for which the confiscation of infringing objects, revocation of a license, suspension or prohibition of activities are provided for as a sanction are subject to judicial review.

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 3 of the commented article establishes administrative responsibility for the retail sale of alcoholic beverages, with the exception of sales in restaurants, bars and cafes, as well as on passenger aircraft, passenger ships of sea transport, in dining cars of passenger trains.

The objective side of the offense provided for in Part 3 of the commented article is characterized by the commission of illegal actions by the offender, expressed in:

1) in the retail sale of any alcoholic products - from 23 to 8 o'clock the next day and (or)

2) in the retail sale of alcoholic beverages with a volume fraction of ethyl alcohol exceeding thirty percent - from 21 to 12 o'clock the next day.

The exception to the objective side of the offense provided for in Part 3 of the commented article is cases of retail sale of alcoholic beverages in restaurants, bars and cafes, as well as on passenger aircraft, passenger ships of sea transport, in dining cars of passenger trains. Actions related to the retail sale of alcoholic beverages in these places are not illegal, regardless of the time of sale of alcoholic beverages in them.

According to the legislative requirement of the norm of subclause 2) of clause 14 of Article 159 of the Code of the Republic of Kazakhstan "On the health of the people and the healthcare system", retail sale of any alcoholic products (with the exception of sales in restaurants, bars and cafes) is prohibited from 23 to 8 o'clock the next day; and with a volume fraction of ethyl alcohol over thirty percent - from 21 until 12 o'clock the next day.

Violation by persons engaged in the sale of alcoholic beverages of the specified legislative prohibition on the sale of alcoholic beverages at a legally prescribed time of day forms the final composition of the administrative offense provided for in Part 3 of the commented article.

For committing an offense under Part 3 of Article 200 of the Administrative Code, the offender is punished with a fine and suspension of the license.

The amount of the fine for committing an offense under Part 3 of Article 200 of the Administrative Code is differentiated depending on the legal status of the offender, and if the offender is a business entity, it also depends on which category of business entities he belongs to. In this regard, the body bringing the offender to administrative responsibility must first establish the legal status of this person and the category of entrepreneurship to which he belongs before bringing a person to justice.

Depending on the legal status of the offender and the business category to which he belongs, the amount of the fine is:

- for individuals – 10 MCI

- for small businesses – 40 MCI,

- for medium-sized businesses - 80 MCI,

- for large business entities – 120 MCI

The penalty rates for offenders of each of the above categories of persons are fixed and are not subject to change by the body imposing them.

Officials of the internal affairs bodies 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 a more severe penalty for repeated commission of actions provided for in Part 3 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 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 3 of Article 200 of the Administrative Code.

In the description of the objective side of the offense provided for in Part 4 of Article 200 of the Administrative Code, a sign of repetition is added to the actions provided for in Part 3 of the commented article.

An offense is considered to have been committed repeatedly if a person has previously committed any of the actions provided for in Part 3 of Article 200 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 4 of Article 200 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 actions provided for in Part 3 of Article 200 of the Administrative Code, the existence of a court order that has entered into force imposing an administrative penalty under Part 3 of art. 200 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 actions provided for in Part 3 of Article 200 of the Administrative Code within a year after the imposition of the penalty, the offender is punished by a fine with the deprivation of a license.

The amount of the fine for committing an offense under Part 4 of Article 200 of the Administrative Code is:

- for individuals - 20 MCI,

- for small businesses - 80 MCI,

- for medium-sized businesses - 140 MCI,

- for large business entities - 180 MCI.

Officials of the internal affairs bodies have the right to draw up protocols on administrative offenses provided for in Part 3 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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