Comment to Article 267. Illegal actions of officials of a state institution and a state-owned enterprise on the right of operational management (state-owned enterprise) to accept monetary obligations at the expense of the state budget of the Code of the Republic of Kazakhstan on Administrative Offenses
1. Illegal actions of officials of a state institution or a state-owned enterprise on the right of operational management (state-owned enterprise) to accept monetary obligations at the expense of the state budget without registration of civil law transactions established by law and (or) in excess of the amounts of estimates approved by the authorized body, which have entailed the responsibility of the Government of the Republic of Kazakhstan or the relevant local executive body for the obligations of a state institution or a state-owned enterprise on the right of operational management (state-owned enterprise), -
they entail a fine in the amount of fifty monthly calculation indices.
2. The actions provided for in the first part of this Article, committed repeatedly within a year after the imposition of an administrative penalty, -
they entail a fine in the amount of one hundred monthly calculation indices.
The commented article establishes administrative responsibility for illegal actions of officials of a state institution and a state-owned enterprise on the right of operational management (state-owned enterprise) to accept monetary obligations at the expense of the state budget.
The generic object of offenses provided for in Article 267 of the Administrative Code is the procedure established in the legislation of the Republic of Kazakhstan and protected by the state for carrying out activities in the field of finance.
The direct object of administrative offenses provided for in the commented article is the procedure established by the legislation of the Republic of Kazakhstan for accepting monetary obligations from the budget by state institutions and state-owned enterprises.
The subjects of offenses provided for in Article 267 of the Administrative Code, by virtue of a direct indication of this in the dispositions of the commented article, are officials of state institutions or state-owned enterprises.
A state institution is a non-profit organization established by the state and maintained only at the expense of the budget or budget (cost estimates) of the National Bank of the Republic of Kazakhstan, unless additional sources of financing are established by the laws of the Republic of Kazakhstan, for the implementation of managerial, socio-cultural or other non-commercial functions.
A state–owned enterprise is a commercial organization endowed by the state with property on the right of operational management.
The subjective side of the acts provided for in Article 267 of the Administrative Code, for the officials who committed them, is characterized by guilt in the form of intent or negligence. The guilt of a person is revealed by the mental attitude of officials towards the illegal acts committed by him and their harmful consequences.
The offences provided for in the commented article are material. In order to calculate and impose a fine on the offender under the commented article, it is necessary to establish the fact that the offender caused damage to a state institution or a state-owned enterprise from monetary obligations assumed by their officials at the expense of the state budget and reimbursed by the Government of the Republic of Kazakhstan or the relevant local executive body for such monetary obligations of a state institution or a state-owned enterprise.
Part 1 of the commented article establishes administrative responsibility for illegal actions of officials of a state institution or a state-owned enterprise on the right of operational management (state-owned enterprise) to accept monetary obligations at the expense of the state budget without registration of civil law transactions established by law and (or) in excess of the amounts of estimates approved by the authorized body, which have entailed the responsibility of the Government of the Republic of Kazakhstan or the relevant local executive body for the obligations of a state institution or a state-owned enterprise on the right of operational management (state-owned enterprise).
The objective side of the offense provided for in Part 1 of Article 267 of the Administrative Code is that the offender commits unlawful acts in the form of:
1) accepting monetary obligations at the expense of the state budget without registration of civil law transactions established by law and (or)
2) accepting monetary obligations at the expense of the state budget in excess of the amounts of estimates approved by the authorized body.
As required by paragraph 5 of Article 96 of the Budget Code, civil law transactions of state institutions come into force after their mandatory registration in the territorial divisions of the central authorized body for budget execution.
Subject to registration within the limits of the amounts approved by the individual financing plan for obligations for the relevant financial year and the basic budget expenditures of the second and third financial years of the planning period, civil law transactions during their entire validity period related to:
1) budgetary development programs with a duration of more than one year;
2) current budget programs providing for the purchase of assets and other goods, the duration of the technological period of manufacture of which determines their delivery in the next (subsequent) financial year (fiscal years);
3) provision of services for a period of more than one financial year in cases established by the legislation of the Republic of Kazakhstan on public procurement, as well as the implementation of government assignments, provision of services and works for a period of more than one financial year in cases established by legislative acts of the Republic of Kazakhstan;
4) holding events at the expense of the reserve funds of the Government of the Republic of Kazakhstan, with a duration of more than one financial year.
Registration of public procurement contracts with a term exceeding three years is carried out in accordance with the procedure determined by the central authorized body for budget execution.
The confirmation document on the registration of a civil law transaction is the notification of the registration of the contract.
The procedure for registration of civil law transactions of state institutions is determined by the central authorized body for budget execution.
According to the prohibition set out in paragraph 4 of Article 97 of the Budget Code of the Republic of Kazakhstan, payments and money transfers are not allowed without a registered civil law transaction due to the specifics of the economic classification of expenses, according to which registration of concluded civil law transactions is mandatory.
As required by paragraph 1 of Article 165 of the Law of the Republic of Kazakhstan "On State Property", a state institution is liable for its obligations only with the money at its disposal. Foreclosure on the rest of the property of the State institution is not allowed.
Therefore, according to paragraph 2 of Article 165 of the Law of the Republic of Kazakhstan "On State Property", if a state institution does not have enough money, subsidiary responsibility for its obligations is borne by the Republic of Kazakhstan or an administrative-territorial unit with funds from the relevant budget.
As a general rule, paragraph 1 of Article 158 "On State Property", a state-owned enterprise is liable for its obligations with the money at its disposal. Foreclosure on the remaining property of a state-owned enterprise is not allowed, except in cases of liquidation of this legal entity.
Accordingly, a state-owned enterprise is obliged to assume monetary obligations only within the framework of the cost estimates approved by the authorized body and within the limits of the money at its disposal. Officials of a state-owned enterprise are prohibited from accepting monetary obligations for this state-owned enterprise in excess of the amounts of estimates approved for it by the authorized body and the money at its disposal.
If a state-owned enterprise does not have enough money, subsidiary responsibility for its obligations, according to paragraph 3 of Article 158 of the Law of the Republic of Kazakhstan "On State Property", is borne by the Republic of Kazakhstan or an administrative-territorial unit with funds from the relevant budget.
Violation of the above-mentioned legislative requirements and prohibitions by officials of state institutions and state-owned enterprises when they assume monetary obligations to these institutions and enterprises at the expense of the state budget forms the final composition of the offense provided for in Part 1 of the commented article.
For committing an offense under Part 1 of Article 267 of the Administrative Code, the official responsible for its commission is punished with a fine.
The amount of the fine for committing an offense under Part 1 of Article 267 of the Administrative Code is 50 MCI, is fixed and is not subject to change by the body imposing it.
This penalty is imposed on offenders by the authorities of the Ministry of Finance of the Republic of Kazakhstan or by the court, if 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 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 267 of the Administrative Code.
In the description of the objective side of the offense provided for in Part 2 of Article 267 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 267 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 267 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 267 of the Administrative Code, the existence of an effective resolution of the Ministry of Finance of the Republic of Kazakhstan or a court on the imposition of administrative penalties under Part 1 of art. 267 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 267 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 267 of the Administrative Code is 100 MCI, is fixed and is not subject to change by the body imposing it.
This penalty is imposed on offenders by the authorities of the Ministry of Finance of the Republic of Kazakhstan or by the court, if the case is considered in court.
The imposition of an administrative penalty on an offender does not release him from fulfilling his existing obligations, eliminating violations committed by him and compensating the damage caused by the offense to the State or third parties.
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.);
Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);
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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