Comment to article 204. Trading in unidentified locations The Code of the Republic of Kazakhstan on Administrative Offences
1. Trade outside the places established by the local executive body, -
entails a warning or a fine in the amount of five monthly calculation indices.
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 in the amount of ten monthly calculation indices.
The commented article establishes administrative responsibility for trading in unidentified locations.
The generic object of offenses provided for in Article 204 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 offense 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 retail sale of goods in specially designated places.
The subjects of the offense provided for in Article 204 of the Administrative Code are individuals and business entities.
The subjective side of the acts provided for in Article 204 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 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.
Part 1 of the commented article establishes administrative responsibility for trading outside the places established by the local executive body.
The objective side of the administrative offense provided for in Part 1 of Article 204 of the Administrative Code is expressed in the commission by a business entity of illegal actions in the form of trade outside the places established by the local executive body.
As required by paragraph 1 of Article 12 of the Law of the Republic of Kazakhstan "On Regulation of Trading Activities", retail trade is carried out through stationary, non-stationary retail facilities and trading markets. The places where retail trade activities are carried out are determined by local executive bodies.
The implementation of retail trade outside the places established by local executive bodies is prohibited by virtue of a direct instruction to this effect in paragraph 5 of Article 12 of the Law of the Republic of Kazakhstan "On Regulation of Trading Activities".
At the same time, the objective side of the offense in question does not include cases of retail trade outside retail locations through network marketing, through public distributors, by mail and other means, which, as required by paragraph 4 of Article 12 of the said Law, are regulated in accordance with the procedure established by the Government of the Republic of Kazakhstan.
Similarly, the article being commented on does not apply to cases of wholesale trade, trade from warehouses, electronic commerce, or trade in goods carried out at their permanent location or storage.
For committing an offense provided for in the commented article, the person who committed it is punished with a fine or a warning.
The choice of one of the above types of alternative punishment is carried out at the discretion of the body imposing the penalty, depending on the circumstances of the case.
The amount of the fine for committing an offense under Part 1 of Article 204 of the Administrative Code is 5 MCI, is fixed and is not subject to change by the body imposing it.
This penalty is imposed on the offender by local executive authorities, internal affairs bodies or the court, in case the case is considered in court.
Part 2 of the commented article establishes a more severe penalty for repeated commission of an action 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 204 of the Administrative Code.
In the description of the objective side of the offense provided for in Part 2 of Article 204 of the Administrative Code, a sign of repetition is added to the action provided for in Part 1 of the commented article.
An offense is considered to have been committed repeatedly if the person has previously committed the action provided for in Part 1 of Article 204 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 204 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 204 of the Administrative Code, the existence of an effective resolution of the local executive body, internal affairs body or court. on the imposition of an administrative penalty under Part 1 of art. 204 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 204 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 under Part 2 of Article 204 of the Administrative Code is 10 MCI, is fixed and is not subject to change by the body imposing it.
This penalty is imposed on the offender by local executive authorities, internal affairs bodies or the court, in case the case is considered in court.
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:
Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);
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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