Comment to article 210. Conducting payments and (or) money transfers for foreign exchange transactions without submitting a currency agreement in accordance with the procedure provided for by the currency legislation of the Republic of Kazakhstan  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. Conducting a payment and (or) money transfer by an authorized bank for a currency transaction without submitting a currency agreement or a currency agreement with an assigned account number, when the submission of such a currency agreement is mandatory in accordance with the regulatory legal acts of the National Bank of the Republic of Kazakhstan., -

     entails a warning.

     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 fifty monthly calculation indices.

     The commented article establishes administrative responsibility for making payments and (or) money transfers for currency transactions without submitting a currency agreement in accordance with the procedure provided for by the currency legislation of the Republic of Kazakhstan.

     The generic object of offenses provided for in Article 210 of the Administrative Code is the procedure for conducting currency transactions established in the legislation of the Republic of Kazakhstan and protected by the state.

     The direct object of the administrative offenses provided for in the commented article is the procedure established by the currency legislation of the Republic of Kazakhstan and protected by the state for making payments and transfers for currency transactions.

     210 of the Administrative Code, by virtue of a direct indication of this in the norm of the commented article, is an authorized bank – a second-tier bank that carries out currency transactions on behalf of the client.

     Part 1 of the commented article establishes administrative responsibility for conducting a payment and (or) money transfer by an authorized bank for a currency transaction without submitting a currency agreement or a currency agreement with an assigned account number, when the submission of such a currency agreement is mandatory in accordance with the regulatory legal acts of the National Bank of the Republic of Kazakhstan.

     The objective side of the offense provided for in Part 1 of Article 210 of the Administrative Code is that the offender commits unlawful acts in the form of:

     1) making a payment on a currency transaction without submitting a currency agreement or a currency agreement with an assigned account number;

     2) transfer money for a currency transaction without submitting a currency agreement or a currency agreement with an assigned account number.

     As required by clauses 1 and 2 of Article 14 of the Law of the Republic of Kazakhstan "On Currency Regulation and Currency Control", the registration of a currency agreement on capital movements provides for the assignment of an accounting number to this agreement and subsequent submission by a resident participant of a currency agreement on capital movements to the National Bank of the Republic of Kazakhstan of information and reports on it using an accounting number. The registration requirements apply to foreign exchange contracts for the movement of capital, the participants of which are residents (with the exception of authorized banks and branches (representative offices) of foreign organizations). A resident (with the exception of an authorized bank and a branch (representative office) of a foreign organization) who is a participant in a foreign exchange agreement on capital movements must apply to the National Bank of the Republic of Kazakhstan for assigning an account number to a foreign exchange agreement on capital movements before any of its parties begin fulfilling their obligations under such a currency agreement.

     According to foreign exchange contracts for the movement of capital subject to registration, payments and (or) money transfers through bank accounts with authorized banks are carried out only if an account number is available.

     Accordingly, without the payer submitting to the authorized bank a currency agreement or the account number of the currency agreement under which payments and/or transfers are made, the authorized bank has no right to make the specified payments and/or transfers.  

     Violation by an authorized bank of the above-mentioned prohibition forms the final composition of the offense provided for in Part 1 of the commented article.

     The composition of the offense provided for in Part 1 of the commented article is formal. In order to calculate and impose a fine on the offender in accordance with Part 1 of the commented article, it is not necessary to establish the fact and amount of damage caused by making a payment and (or) transferring money for a currency transaction without submitting a currency agreement or a currency agreement with an assigned account number.

     For the commission of an offense provided for in Part 1 of the commented article, the authorized bank is subject to punishment 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 National Bank of the Republic of Kazakhstan 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 any of the actions (inaction) 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 210 of the Administrative Code.  

     In the description of the objective side of the offense provided for in Part 2 of Article 210 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 (omissions) provided for in Part 1 of Article 210 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 art. 210 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 actions provided for in Part 1 of Article 210 of the Administrative Code, the existence of an effective resolution of the National Bank of the Republic of Kazakhstan or a court on the imposition of administrative penalties. according to part 1 of art . 210 of the Administrative Code, the fact of its announcement, delivery or referral to the subject of the offense 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 210 of the Administrative Code within a year after the imposition of the penalty, the offender is punished with a fine.  

     The fine for committing an offense under Part 2 of Article 210 of the Administrative Code is 50 MCI.

     This penalty is imposed on the offender by the National Bank of the Republic of Kazakhstan 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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