Comment to Article 294. Violation of restrictions on the sale and use of products in the field of energy conservation and energy efficiency improvement The Code of the Republic of Kazakhstan on Administrative Offences
1. The use of incandescent electric lamps with a power of 25 watts and above, which can be used in alternating current circuits for lighting purposes, -
They impose a fine on small businesses in the amount of twenty, on medium-sized businesses in the amount of forty, on large businesses in the amount of one hundred monthly calculation indices, with confiscation of incandescent electric lamps with a capacity of 25 watts and above, which can be used in alternating current circuits for lighting purposes.
2. The acts 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 for small businesses in the amount of forty, for medium-sized businesses in the amount of eighty, for large businesses in the amount of two hundred monthly calculation indices, with confiscation of incandescent electric lamps with a capacity of 25 watts and above, which can be used in alternating current circuits for lighting purposes.
3. Sale and (or) use of energy-consuming devices that do not contain information on the class and characteristics of energy efficiency in accordance with the technical regulations of the Customs Union or the Eurasian Economic Union in the technical documentation and on the labels., -
They impose a fine on small businesses in the amount of three, on medium-sized businesses in the amount of six, and on large businesses in the amount of one hundred monthly calculation indices.
4. The acts provided for in the third part of this article, committed repeatedly within a year after the imposition of an administrative penalty, -
A fine of six is imposed on small businesses, twelve on medium-sized businesses, and two hundred monthly calculation indices on large businesses.
Part 1 of the commented article provides for administrative liability of business entities in the form of an administrative fine with confiscation of incandescent electric lamps for the use of incandescent electric lamps with a power of 25 watts and above, which can be used in alternating current circuits for lighting purposes.
The direct object of the administrative offense provided for in part 1 of the commented article is the procedure established by law and protected by the state for complying with the requirement to prohibit the use of incandescent electric lamps with a power of 25 watts or higher, which can be used in alternating current circuits for lighting purposes.
The objective side of the administrative offense provided for in part 1 of the commented article is expressed in action, namely, in the use of incandescent electric lamps with a power of 25 watts and above, which can be used in alternating current circuits for lighting purposes, which is prohibited by subparagraph 1) paragraph 1 of Article 13 of the Law of the Republic of Kazakhstan dated January 13, 2012 "On Energy Conservation and Energy Efficiency Improvement" (hereinafter - the Law).
As already mentioned in the preface to this paragraph, the ban on the use of incandescent electric lamps is one of the priorities of the state policy in the field of energy conservation and energy efficiency. Thus, by prohibiting the use of incandescent electric lamps, it is intended to create conditions for the widespread use of energy-saving lamps.
So, today, there has been a significant increase in the use of mercury (fluorescent) lamps. At the same time, according to the opinion of the Energy Charter Secretariat and the KAZENERGY Association, reflected in the Review, the issue of their safe disposal remains unresolved, which poses real threats to public health and can lead to negative environmental consequences. In this regard, there is a need to organize a common republican system for the collection, storage and disposal of mercury-containing lamps.
The subjects of the administrative offense provided for in part 1 of the commented article are business entities. The sanction provides for administrative liability in the form of an administrative fine and is applied differentially depending on the category of business entities: small, medium and large enterprises. In addition to an administrative fine, confiscation is also applied as an additional administrative penalty.
The subjective side of the acts provided for in Part 1 of Article 294 of the Administrative Code is characterized by guilt in the form of intent or negligence.
The composition of the administrative offense provided for in the commented article is formal, that is, it is considered completed from the moment the fact of the offense is discovered by the controlling body and it is not necessary to establish the fact of causing material harm.
Part 2 of the commented article establishes a more severe punishment for repeated commission of an act provided for in Part 1 of Article 294 of the Administrative Code within a year after the imposition of an administrative penalty. In this case, the repetition of the offense is a mandatory qualifying sign of an independent composition of the offense in order to attract the offender already under Part 2 of Article 294 of the Administrative Code.
According to paragraph 1 of Article 684 of the Administrative Code, judges of specialized district and equivalent administrative courts consider cases of administrative offenses provided for in part 1,2 of Article 294 of the Administrative Code.
According to subparagraph 50) of paragraph 1 of Article 804 of the Administrative Code, protocols on an administrative offense provided for in parts 1,2 of Article 294 of the Administrative Code may be drawn up by local executive bodies of regions, cities of republican significance, the capital, districts, cities of regional significance.
As an example, let us consider the decision of the judge of the specialized administrative court of Pavlodar in the case of administrative offense No. 5512-18-00-3/248 dated January 16, 2018 against PAVLODARENERGO Joint Stock Company under part 1 of Article 294 of the Administrative Code. According to the plot of the case, it is known that during the random inspection of PAVLODARENERGO, violations were identified, namely, the use of incandescent electric lamps with a power of 25 watts and higher in alternating current circuits for the purpose of lighting the turbine shops of CHP-3, CHP-2. Since the business entity fully admitted his guilt, the judge found PAVLODARENERGO JSC guilty and imposed an administrative penalty in the form of an administrative fine with confiscation of electric lamps.
Part 3 of Article 294 of the Administrative Code provides for administrative liability of business entities in the form of an administrative fine for the sale and (or) use of energy-consuming devices that do not contain information on the class and characteristics of energy efficiency in accordance with the technical regulations of the Customs Union or the Eurasian Economic Union in technical documentation and labels.
The direct object of the administrative offense provided for in part 3 of the commented article is the procedure established by law and protected by the state for complying with the requirement to prohibit the sale and (or) use of energy-consuming devices that do not contain information on the class and characteristics of energy efficiency in technical documentation and labels in accordance with the technical regulations of the Customs Union or the Eurasian Economic Union.
The objective side of the administrative offense provided for in part 3 of the commented article is expressed in action, namely:
- sale of energy-consuming devices that do not contain information on the class and characteristics of energy efficiency in accordance with the technical regulations of the Customs Union or the Eurasian Economic Union in the technical documentation and on the labels.;
- and (or) the use of energy-consuming devices that do not contain information on the class and characteristics of energy efficiency in accordance with the technical regulations of the Customs Union or the Eurasian Economic Union in the technical documentation and on the labels.
According to subparagraph 4) of paragraph 1 of Article 13 of the law, in order to save energy and increase energy efficiency, it is not allowed:
"4) sale and (or) use of electric energy-consuming devices that do not contain information about the class and characteristics of their energy efficiency in accordance with the technical regulations of the Eurasian Economic Union."
According to the law, the energy efficiency class is defined as a characteristic of a product reflecting its energy efficiency.
The subjective side of the acts provided for in Part 3 of Article 294 of the Administrative Code is characterized by guilt in the form of intent or negligence.
The composition of the administrative offense provided for in the commented article is formal, that is, it is considered completed from the moment the fact of the offense is discovered by the controlling body and it is not necessary to establish the fact of causing material harm.
Part 4 of the commented article establishes a more severe punishment for repeated commission of an act provided for in Part 3 of Article 294 of the Administrative Code within a year after the imposition of an administrative penalty. In this case, the repetition of the offense is a mandatory qualifying sign of an independent composition of the offense in order to attract the offender already under Part 4 of Article 294 of the Administrative Code.
The Law of the Republic of Kazakhstan dated May 24, 2018 No. 156-VI SAM "On Amendments and additions to certain Legislative Acts of the Republic of Kazakhstan on improving the regulation of entrepreneurial activity" amended Part 1 of Article 689 of the Administrative Code, excluding the authority of the body exercising state control in the field of energy conservation and energy efficiency to consider cases of administrative offenses, provided for by parts 3.4 of Article 294 of the Administrative Code. At the same time, the above-mentioned law does not provide for this authority from another state body (court). Consequently, there is a gap, since the composition of an administrative offense exists, while the authority of the state body to draw up a protocol and review the case of an administrative offense is absent. In this regard, it becomes necessary to make appropriate additions to the Administrative Code.
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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