Comment to Article 231. Violation of the deadlines established by the legislation of the Republic of Kazakhstan for the approval of senior officials of financial organizations, banking and insurance holdings, and the Insurance Benefit Guarantee Fund The Code of the Republic of Kazakhstan on Administrative Offences
1. Violation by a financial organization, a banking and insurance holding company, or an Insurance Benefit Guarantee Fund of the terms of approval of a senior employee of a financial organization, a banking and insurance holding company, or an Insurance Benefit Guarantee Fund -
entails a fine on legal entities in the amount of ninety 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 on legal entities in the amount of two hundred monthly calculation indices.
The commented article establishes administrative liability for violation of the deadlines established by the legislation of the Republic of Kazakhstan for the approval of senior employees of financial organizations, banking and insurance holdings, and the Insurance Benefit Guarantee Fund.
The generic object of offenses provided for in Article 231 of the Administrative Code is the procedure established in the legislation of the Republic of Kazakhstan and protected by the state for conducting business in the field of finance.
The direct object of the administrative offenses provided for in the commented article is the procedure established by the legislation of the Republic of Kazakhstan for coordinating senior officials of financial organizations, banking and insurance holdings, and the Insurance Benefit Guarantee Fund.
231 of the Administrative Code, by virtue of the direct indication of this in the commented article, are legal entities: financial organizations, banking and insurance holdings, Insurance Benefit Guarantee Fund.
The subjective side of the acts provided for in Article 231 of the Administrative Code cannot be established due to the fact that the subjects of offenses under the commented article are legal entities.
The offences provided for in the commented article are formal. In order to calculate and impose fines on offenders under the commented article, it is not necessary to establish the fact and amount of damage caused to third parties from the commission of offenses.
Part 1 of the commented article establishes administrative liability for violation by a financial organization, a banking and insurance holding company, or an Insurance Benefit Guarantee Fund of the terms of approval of a senior employee of a financial organization, a banking and insurance holding company, or an Insurance Benefit Guarantee Fund.
The objective side of the offense provided for in Part 1 of Article 231 of the Administrative Code is that the offender commits unlawful acts (inaction) in the form of violating the deadlines for approving a senior employee of a financial organization, a banking and insurance holding company, and an Insurance Benefit Guarantee Fund.
A financial institution is a legal entity engaged in business activities for the provision of financial services. Accordingly, 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 non–licensed activities: the unified accumulative pension fund; the central depository; a single operator in the field of accounting for state property in terms of exercising the functions of nominal holding of securities owned by the state, quasi-public sector entities, the list of which is approved by the authorized body for state property management, or in respect of which the state, these quasi-public sector entities have property rights; mutual insurance companies.
All the above-mentioned financial organizations, as well as banking and insurance holdings and the Insurance Benefit Guarantee Fund, are required by the legislation of the Republic of Kazakhstan on relevant financial organizations to coordinate their senior staff with the authorized bodies within the time limits established by the legislation of the Republic of Kazakhstan.
Thus, as required by clause 6 of Article 20 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities", a senior employee has the right to perform relevant functions without approval from the authorized body for no more than sixty calendar days from the date of his appointment (election, assignment of relevant functions) or from the date of acquisition of bank shares upon receipt by a legal entity of the status of a bank holding company. Upon expiration of the above-mentioned period and in cases of failure to submit a complete package of documents for approval to the authorized body or refusal by the authorized body to approve, the bank is obliged to terminate the employment contract with this person or, in the absence of an employment contract, take measures to terminate the powers of this senior employee. It is prohibited to perform duties (to replace a temporarily absent) senior employee of the bank without the approval of the authorized body for more than the above-mentioned period.
As required by clause 6 of Article 34 of the Law of the Republic of Kazakhstan "On Insurance Activities", a senior employee has the right to perform relevant functions without approval from the authorized body for no more than sixty calendar days from the date of his appointment (election, assignment of relevant functions) or from the date of acquisition of shares of an insurance (reinsurance) organization upon receipt by a legal entity of the status of an insurance holding company. Upon expiration of the specified period and in cases of failure to submit a complete package of documents for approval to the authorized body or refusal by the authorized body to approve, the insurance (reinsurance) organization and the insurance broker are obliged to terminate the employment contract with this person or, in the absence of an employment contract, take measures to terminate the powers of this senior employee.
As required by clause 5 of Article 54 of the Law of the Republic of Kazakhstan "On the Securities Market", a senior employee has the right to perform relevant functions without approval from the authorized body for no more than sixty calendar days from the date of his appointment (election, assignment of relevant functions). Upon expiration of the above-mentioned period and in cases of failure to submit a complete package of documents for approval to the authorized body or refusal by the authorized body to approve, the applicant (licensee) is obliged to terminate the employment contract with this person or, in the absence of an employment contract, take measures to terminate the powers of this senior employee. It is prohibited to perform the duties (replacement of a temporarily absent) senior employee of the applicant (licensee) without the approval of the authorized body for more than the prescribed sixty-day period.
As required by paragraph 4 of Article 55 of the Law of the Republic of Kazakhstan "On Pension Provision in the Republic of Kazakhstan", a senior employee has the right to perform relevant functions without approval from the authorized body for no more than sixty calendar days from the date of his appointment (election, assignment of relevant functions). Upon expiration of the above-mentioned period and in cases of failure to submit a complete package of documents for approval to the authorized body or refusal by the authorized body to approve, the unified accumulative pension fund or the voluntary accumulative pension fund are obliged to terminate the employment contract with this person or, in the absence of an employment contract, take measures to terminate the powers of this senior employee. It is prohibited to perform duties (to replace a temporarily absent) senior employee of a single accumulative pension fund or a voluntary accumulative pension fund without the approval of the authorized body beyond the sixty-day period established by law.
Similar requirements are imposed by the legislation of the Republic of Kazakhstan to other financial organizations mentioned above and the Insurance Benefit Guarantee Fund.
Accordingly, the obligated person must, within the sixty-day period established by law, apply to the authorized body for the approval of a senior employee of a financial institution, a banking and insurance holding company, and an Insurance Benefit Guarantee Fund.
It is prohibited to perform duties (to replace a temporarily absent) senior employee of a financial institution, a banking and insurance holding company, or an Insurance Benefit Guarantee Fund without approval from the authorized body for more than the above-mentioned period.
Violation by obligated persons of the above-mentioned legislative prohibition, failure by them to fulfill the duty assigned to them by law to apply to the authorized body for approval of a senior employee within the time limit established for this purpose forms the final composition of the offense provided for in Part 1 of the commented article.
For committing an offense provided for in Part 1 of the commented article, offenders are punished with a fine.
The amount of the fine for committing an offense under Part 1 of Article 231 of the Administrative Code is 90 MCI, is fixed and is not subject to change by the body imposing 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 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 231 of the Administrative Code.
In the description of the objective side of the offense provided for in Part 2 of Article 231 of the Administrative Code, a sign of repetition is added to the act provided for in part 1 of the commented article.
An offence is considered to have been committed repeatedly if the person has previously committed the act provided for in Part 1 of Article 231 of the Administrative Code, has been subjected to administrative punishment for this 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 231 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 231 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 . 231 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 the act provided for in Part 1 of Article 231 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 231 of the Administrative Code is 200 MCI, is fixed and is not subject to change by the body imposing 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.
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
