Comment to Article 366. Illegal uprooting, construction of buildings, processing of wood, arrangement of warehouses on the lands of the forest fund of the Code of the Republic of Kazakhstan On Administrative Offenses
Illegal uprooting, construction of buildings, wood processing, and storage facilities on forest lands –
They entail a warning or fine for individuals in the amount of five, for officials, small businesses or non–profit organizations – in the amount of ten, for medium–sized businesses - in the amount of fifteen, for large businesses - in the amount of one hundred and fifty monthly calculation indices.
Note. Persons who have committed administrative offenses provided for in articles 366, 368, 370, 371, 375, 381, 382, 386, 387 388 of this Code, are subject to administrative penalty in the form of an administrative fine in case they cause damage five or more times higher than the monthly calculation index.
The object of the offense being commented on is the socio-legal relations that arise during uprooting, construction of buildings, wood processing, and storage facilities on forest lands.
According to Article 6 of the Forest Code of the Republic of Kazakhstan dated July 8, 2003 No. 477, all forests located on the territory of the Republic of Kazakhstan, as well as forest lands not covered with forest vegetation, but intended for forestry, form the forest fund of the Republic of Kazakhstan (hereinafter referred to as the forest fund).
The Forest fund consists of public and private forest funds.
The State forest fund includes:
1) forests of natural and artificial origin (including forest and non-forest lands) on the lands of specially protected natural territories;
2) forests of natural and artificial origin, as well as land plots not covered with forest vegetation provided for the needs of forestry on the lands of the state forest fund;
3) protective plantings on the right-of-way of railways and public roads of international and national importance, canals, main pipelines and other linear structures with a width of ten meters or more, with an area of more than 0.05 hectares.
The private forest fund includes those created at the expense of funds from individuals and non-governmental legal entities on lands granted to them for private ownership or long-term land use, in accordance with the Land Code of the Republic of Kazakhstan with the intended purpose for afforestation.:
1) artificial plantings;
2) plantings of natural origin that have arisen by seed and (or) vegetative means;
3) private forest nurseries;
4) plantation plantations for special purposes;
5) agroforestry plantations;
6) protective plantings on the right-of-way lanes of privately owned commercial highways.
The forest fund does not include:
1) individual trees and groups of trees with an area of less than 0.05 hectares located outside the lands of the state forest fund, shrubby vegetation on agricultural lands;
2) landscaping within the boundaries of populated areas, except urban forests;
3) trees and shrubs on household, suburban and garden plots.
In accordance with paragraph 1 of Article 113 of the Forest Code of the Republic of Kazakhstan, violations in the field of protection, protection, use of the forest fund, reproduction of forests and afforestation are "illegal use of plots of the state forest fund for uprooting, erecting buildings, processing wood, setting up warehouses and other purposes without proper permission."
The objective side of the offense is expressed in actions (inaction) for illegal uprooting, construction of buildings, wood processing, and storage facilities on forest lands.
Consequently, the lawful nature of the above actions precludes the possibility of applying art. 366 of the Administrative Code.
For example, paragraphs 6 to 8 of the "Rules for logging in areas of the State Forest Fund", approved by the Order of the Minister of Agriculture of the Republic of Kazakhstan dated June 30, 2015 No. 18-02/596, states that logging in areas of the state forest fund is carried out taking into account the steepness and exposure of slopes.
The steepness of the mountain slopes is divided into gentle (up to 10 degrees), sloping (from 11 to 20 degrees), steep (from 21 to 30 degrees) and very steep (31 degrees or more).
The slopes of the northern expositions include the northern, north-western, north-eastern and eastern; the southern expositions include the southern, south-western, south-eastern and western slopes.
The steepness of the slopes is determined from the lower to the upper boundary of the allotment, if individual sections of the slope do not differ in steepness by more than 5 degrees. If the difference in the steepness of individual sections of the slope is more than 200 meters long, exceeding 5 degrees, and entailing a change in cutting methods, each of them determines its own steepness.
According to the degree of resistance to soil erosion, mountain slopes are divided into unstable ones with a capacity of up to 70 centimeters and stable ones with a capacity of more than 70 centimeters.
The preliminary selection of forest plots for logging in kind is carried out by the forester. If individual sections are found to be inconsistent with the data of the tax description and the tablets, they are excluded from the cabin.
In accordance with paragraph 120 of the "Rules for logging in areas of the state forest Fund", selective sanitary logging refers to forest protection measures and is aimed at improving tree stands by harvesting trees infected with diseases and pests of the forest and is prescribed in a sanitary condition requiring surgical intervention, where logging is not planned.
According to paragraphs 122-123 of the "Rules for logging in areas of the State Forest Fund," selective sanitary logging should not lead to a violation of the integrity and stability of plantings. With selective sanitary logging, the abundance of plantings does not decrease below 0.3, and for spruce and fir plantings – below 0.4.
In plantings for which low abundance is their natural state (juniper, pistachio, saxaul, and others), as well as in landscape forests and mountain forests of Schrenk spruce affected by Gauser bark beetle and microphage, the abundance during selective sanitary logging decreases to 0.3.
Selective sanitary logging is planned based on data from forest management or a special forest pathology survey.
In paragraphs 4 – 8 "Rules for providing forest users with plots for construction sites on the lands of the state Forest Fund, where forest resources are provided for long-term forest use for recreational, historical, cultural, tourist and sports purposes, hunting needs, and secondary forest use," approved by Order of the Minister of Agriculture of the Republic of Kazakhstan dated January 26, 2015 No. 18-02/39, specified, that the provision of plots for construction facilities on the lands of the state forest fund is carried out in accordance with the Rules of tenders for the provision of forest resources on the sites of the state forest fund for long-term forest management, approved by the Order of the Minister of Agriculture of the Republic of Kazakhstan dated October 7, 2015 No. 18-02/896 (registered in the Register of State Registration of Regulatory Legal Acts No. 12247) by the department of the authorized body in the field of forestry or the local executive body of the region based on the results of a tender for the provision of forest resources on state forest fund sites for long–term forest management (hereinafter referred to as the tender).
To obtain plots for construction projects with an application for participation in the tender, a sketch (draft) of the proposed facilities is provided in accordance with subparagraph 40) of Article 1 of the Law of the Republic of Kazakhstan dated July 16, 2001 "On Architectural, Urban Planning and Construction activities in the Republic of Kazakhstan", depending on the types of forest management.
When developing a sketch (draft design), it is necessary to provide for the improvement of the adjacent territory of the facility for construction sites.
After developing a sketch (draft design), the forest user coordinates it with the structural unit of the local executive body responsible for architecture and urban planning and sends it to the agency for approval.
The sketch (draft) is reviewed by the agency within two working days from the date of its receipt. The sketch (draft), in the absence of comments, is agreed upon and certified with the seal of the department. If there are comments on the sketch (draft), it is returned to the forest user to eliminate these comments for a period of no more than five working days, after which the documents are re-submitted to the agency.
Prior to the start of work, the forest user notifies the state forest owner and the territorial divisions of the agency in writing about the start of construction. The construction period of the facility is set to be no more than three years.
The construction of facilities on the lands of the state forest fund, where forest resources are provided for long-term forest use for recreational, historical, cultural, tourist and sports purposes, hunting needs, and secondary forest use, is carried out in accordance with Article 102-2 of the Forest Code and Article 27-2 of the Law of the Republic of Kazakhstan "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan Kazakhstan".
The subjective side of the offense is expressed in the form of direct intent or negligence.
The general subject of the offense is an individual, an official, a small business entity or a non-profit organization, a medium-sized business entity, or a large business entity.
In accordance with Part 1 of Article 709 of the Administrative Code, authorized bodies in the field of forestry, fishing and hunting consider cases of administrative offenses provided for in Article 366 of the Administrative Code.
According to Article 709 of the Administrative Code, cases of administrative offenses under Article 366 of the Administrative Code are considered and imposed by authorized bodies in the field of forestry, fishing and hunting.
In paragraph 2) of Part 3 of Article 804 of the Administrative Code, it is stated that in cases of administrative offenses, the consideration of which is attributed to the jurisdiction of the bodies specified in Articles 685 – of this Code, protocols on offenses may be drawn up by authorized officials of these bodies. In addition, officials of specialized organizations of authorized bodies in the field of forestry, fishing and hunting have the right to draw up protocols on administrative offenses (art. 366 of the Administrative Code).
It should also be borne in mind that according to Part 2 of Article 43 of the Administrative Code, in the absence of the circumstances provided for in Article 57 and the note to Article 366 of this Code, the court (judge), the body (official) imposing an administrative penalty is obliged to apply the warning provided for in the relevant article of the Special Part of this Code.
The note to Article 366 of the Administrative Code stipulates that persons who have committed administrative offenses provided for in Articles 366, 368, 370, 371, 375, 381, 382, 386, 387 388 of this Code, are subject to administrative penalty in the form of an administrative fine in the event of damage caused by them, five or more times higher than the monthly estimated the indicator. The introduction of such a rule is related to the specifics of the offense in this area.
Currently, the monthly calculation index is set by the Law of the Republic of Kazakhstan dated November 30, 2018 No. 197-VI "On the Republican Budget for 2019-2021".
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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