Comment to article 251. Failure to comply with the requirement to repatriate national and (or) foreign currency The Code of the Republic of Kazakhstan on Administrative Offences
Non-fulfillment by an individual entrepreneur or a legal entity of the requirement to repatriate national and (or) foreign currency, committed in the form of non-crediting of national and (or) foreign currency to bank accounts with authorized banks:
1) revenue in national and (or) foreign currency from exports;
2) national and (or) foreign currency transferred by a resident of the Republic of Kazakhstan in favor of a non-resident of the Republic of Kazakhstan for making import payments, which is subject to refund due to non-fulfillment or incomplete fulfillment of obligations by a non-resident of the Republic of Kazakhstan, -
entails a fine in the amount of twenty percent of the amount of unpaid national and (or) foreign currency, but not more than two thousand monthly calculation indices.
Note. Responsibility for the commission of offenses provided for in this article occurs in cases when, after the expiration of the repatriation period, the amount of unpaid national and (or) foreign currency exceeds the threshold value above which currency contracts for export or import are subject to control over the fulfillment of the repatriation requirement in accordance with the regulatory legal act of the National Bank of the Republic of Kazakhstan, and if these actions (inaction) they do not contain signs of a criminally punishable act.
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The commented article establishes administrative liability for failure to comply with the requirement to repatriate national and (or) foreign currency.
The generic object of the offense provided for in Article 251 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 offense provided for in the commented article is the procedure established in the legislation of the Republic of Kazakhstan for conducting currency transactions during export and import.
The subjects of the offense provided for in Article 251 of the Administrative Code, by virtue of the direct indication of this in the disposition of the commented article, are individual entrepreneurs and legal entities. Individuals are not the subjects of the offense.
The subjective side of the acts provided for in Article 251 of the Administrative Code, for the individuals who committed it (including individual entrepreneurs) is characterized by guilt in the form of intent. The guilt of an individual is revealed by his mental attitude towards the illegal acts committed by him and their harmful consequences.
The objective side of the offense provided for in Article 251 of the Administrative Code is the commission of unlawful inaction, expressed in the failure of individual entrepreneurs or legal entities to comply with the legislative requirement for the repatriation of national and (or) foreign currency from abroad.
According to paragraph 1 of Article 9 of the Law of the Republic of Kazakhstan "On Currency Regulation and Currency Control", the repatriation of national and (or) foreign currency for export or import consists in crediting to bank accounts in authorized banks.:
1) revenue in national and (or) foreign currency from exports;
2) national and (or) foreign currency transferred by a resident in favor of a non-resident for making import payments, in cases of non-fulfillment or incomplete fulfillment of obligations by a non-resident.
Accordingly, failure by an obligated person to transfer national and (or) foreign currency to bank accounts with authorized banks is a failure to comply with the requirement for its repatriation and constitutes the objective side of the offense provided for in the commented article.
According to the note to the commented article, responsibility for the commission of offenses provided for in the commented article occurs in cases when, after the expiration of the repatriation period, the amount of unpaid national and (or) foreign currency exceeds the threshold value above which currency contracts for export or import are subject to control of fulfillment of the repatriation requirement in accordance with the regulatory legal act of the National Bank of the Republic of Kazakhstan, and if these actions (inaction) they do not contain signs of a criminally punishable act.
As required by clause 2 of Article 9 of the Law of the Republic of Kazakhstan "On Currency Regulation and Currency Control", a resident (with the exception of a branch (representative office) of a foreign organization) is obliged to ensure the repatriation of national and (or) foreign currency within the time limits stipulated by the currency agreement on export or import (the period of repatriation).
According to paragraph 4) paragraph 1 of the Rules for the implementation of export-import currency control in the Republic of Kazakhstan, the period of repatriation is calculated by the exporter or importer, based on the terms of fulfillment of obligations by the parties under the currency agreement on export or import, the time period between: 1) the date of export and the date of receipt of the currency in payment for export; 2) the date of payment and (or) transfer of money for import and the date of refund of the unused advance payment for import in case of non-fulfillment and (or) incomplete fulfillment of obligations by a non-resident; or 3) the date of payment and/or transfer of money for import and the date of import, if there is no deadline in the currency import agreement for the refund of the unused advance payment.
According to Clause 6 of Article 9 of the Law of the Republic of Kazakhstan "On Currency Regulation and Currency Control", the procedure, conditions and criteria, including the threshold value of the amount of a currency agreement for export or import, in which currency agreements for export or import are subject to control of the fulfillment of the repatriation requirement, and exceptions to the repatriation requirement are determined by the rules for the implementation of export-import currency control in the Republic of Kazakhstan.
According to paragraph 22 of the above Rules, if the deadline for repatriation has expired and the amount of outstanding obligations by a non-resident under a foreign exchange export or import agreement to the exporter or importer has exceeded 50,000 (fifty thousand) US dollars in equivalent, the authorized bank (its branch) or the territorial branch of the National Bank, which is the bank of registration, no later than 5 (on the fifth) day of the month following the month of expiry of the repatriation period, sends a request in any form to the exporter or importer for the submission of: 1) information on the reasons for non-fulfillment of the repatriation requirement; 2) documents confirming the occurrence of circumstances affecting the terms and conditions of fulfillment of obligations by a non-resident under a foreign exchange agreement on export or import.
Failure by a resident of the Republic of Kazakhstan to comply with the above-mentioned legislative requirements for the repatriation of currency within the time period of repatriation in an amount exceeding the equivalent of 50,000 US dollars constitutes a complete offense provided for in the commented article.
The offender is brought to administrative responsibility under the commented article only if there are no signs of a criminal offense in the offender's actions – failure to comply with the requirement to repatriate currency on a large scale.
A large amount, according to paragraphs 38) of Article 3 of the Criminal Code, is the amount of unpaid funds in national and (or) foreign currency exceeding 45,000 MCI.
In case of non-fulfillment of the requirement to repatriate national and (or) foreign currency on a large scale, offenders - officials of a legal entity and individual entrepreneurs are subject to criminal liability for committing the specified offense in accordance with the norms of the Criminal Code.
In this regard, the initially illegal act of a person for non-compliance with the requirement to repatriate national and (or) foreign currency should be checked by law enforcement agencies for the presence or absence of signs of a criminal offense and grounds for bringing the perpetrator to criminal responsibility.
The composition of the offense provided for in the commented article is formal. In order to calculate and impose a fine on an offender under the commented article, it is not necessary to establish the fact and amount of damage caused to third parties by failure to comply with the requirement to repatriate national and (or) foreign currency.
For committing an offense provided for in the commented article, individual entrepreneurs and legal entities are subject to punishment in the form of a fine.
The fine for committing an offense under Article 251 of the Administrative Code is 20% of the amount of unpaid national and (or) foreign currency, but not more than 2000 MCI.
This penalty is imposed on offenders by the court by virtue of a direct indication of this in the relevant norms of the Administrative Code.
Authorized employees of the National Bank of the Republic of Kazakhstan have the right to draw up protocols on administrative offenses provided for in the commented article.
The imposition of an administrative penalty on an offender for committing an offense under the commented article does not release him from fulfilling the duty assigned to him (if possible), eliminating violations committed by him and compensating for the damage caused by the offense.
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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