Comment to Article 4. The effect of the legislation of the Republic of Kazakhstan on liability for administrative offenses in time The Code of the Republic of Kazakhstan on Administrative Offences
1. A person who has committed an administrative offense is liable on the basis of the legislation in force at the time of the commission of this offense.
2. The time of the commission of an administrative offense is the time of the commission of the act provided for in the Special Part of this Code, regardless of the time of the onset of consequences.
Of great practical importance is the issue of the effect of an act with an administrative sanction in time. As a general rule, the measure of coercion established for this act by the legal act in force at the time of its commission should be applied to offenders. This is the most common approach in civilized countries.
The basic principle of the operation of the law over time in our country is the immediate effect of the law. Immediate effect means that from the moment the law is put into effect (rather than coming into force), it applies to all existing relationships and terminates the old law on these relationships. Therefore, it is necessary to distinguish between these two definitions. According to paragraph 2 of Article 62 of the Constitution of the Republic of Kazakhstan, laws come into force after they are signed by the Head of State. The fact that a law has acquired legal force does not mean that it has begun to regulate certain social relations. This is dictated by a number of important circumstances specified in the sectoral Law of the Republic of Kazakhstan dated April 6, 2016 "On Legal acts". It is only from the moment of its enactment that the law begins to regulate public relations and generates legal consequences.
The procedure for the enactment of a law is understood as giving it legal force within the time limits specified in the law itself (as a rule, this procedure is regulated by the final article of the law) or in a special (accompanying) law. It is in this sense that the enactment of a law means that it is widespread in space, in time, and across a range of subjects of legal relations.
Legislative acts of the Republic of Kazakhstan shall enter into force upon the expiration of ten calendar days after the date of their first official publication, unless other terms are specified in the acts themselves or the acts on their entry into force. At the same time, a law providing for legal liability for actions (inaction) that previously did not entail such liability, or establishing stricter liability than before, may not be put into effect before the expiration of a ten-day period after the date of its first official publication.
For example, the current Administrative Code was adopted (signed by the Head of State) on July 5, 2014, and entered into force on January 1, 2015. A number of norms of the Administrative Code had a different procedure for their implementation, which is fixed in art. 920 of the Administrative Code. Undoubtedly, in this sense, as in any rule, there are exceptions. All of them, as well as other requirements for regulatory legal acts, including laws, are contained in the Law of the Republic of Kazakhstan dated April 6, 2016 "On Legal Acts", as well as in the Regulations of the Parliament of the Republic of Kazakhstan, approved by the resolution of the Parliament of the Republic of Kazakhstan dated May 20, 1996, as well as in the Regulations of the Mazhilis and the Senate of the Parliament RK (these documents have the force of law).
In accordance with part 1 of the commented article, the normative legal act that had legal force at the time of the commission of an administrative offense is subject to application.
Here, a question may arise regarding the relationship of this provision with the requirements of Article 3 of the Administrative Code, since the composition of administrative offenses can be not only formal and truncated, but also material. There are no contradictions. If an administrative tort was committed at the time of the old, milder law, and the consequences occurred at the time of the new, stricter law, then bringing administrative responsibility under the new, stricter law cannot be considered fair for a number of reasons. The main one is that the offender has already committed those actions (omissions) that are prohibited by law, and the onset of consequences related to these actions cannot depend (be controlled) by the consciousness and will of the offender.
If the administrative offense was committed at the time of the old, stricter law, and the consequences occur at the time of the new, milder law, then in this case it is necessary to talk about the retroactive effect of the law provided for in art. 5 of the Administrative Code.
The above is also true for those cases when, at the time of the commission of an administrative tort, its illegality was not provided for by law, as well as when the consequences occur at the time of the operation of the law eliminating responsibility for the committed administrative tort.
The administrative legislation to be applied to a person who has committed an administrative offense should be understood as the norms of the Special Part of the Code, as well as the norms of the General Part, since they also affect the decision on the responsibility of the person who has committed an administrative offense. A special part of the Administrative Code contains in the disposition a description of the signs of the offense and the sanctions that can be applied for its commission. The general part of the Code contains, in particular, the principles of sentencing. It must be remembered that in this article we are talking about the effect in time of only substantive (tort) legislation (on liability for administrative offenses).
Part 2 of the commented article establishes that the time of the commission of an act is recognized as the moment of the commission of an unlawful act (inaction), regardless of the time of the onset of consequences.
In science, a stable opinion has been developed on this issue that "this construction is due to the need to focus on the subjective attitude of a person to his behavior in accordance with the law in force at the time of the offense, rather than the consequences, which, as a rule, are objective and no longer controlled by the will of the perpetrator. This rule means that in a situation where an act was committed during the old law, and the consequences of this act, which are a necessary sign of an offense, occurred during the operation of the new law, the old law should be applied, which is less strict in relation to the person who committed the offense than the new one."
Indeed, it would be a gross deviation from the requirements of legality, leading to violations of the rights of a person who has committed an administrative offense, to impose an administrative penalty on him on the basis of a law that has lost its legal force. Only the current law, which has entered into force and has been put into effect in accordance with the established procedure, can serve as a real legal basis for applying administrative liability measures provided for by such a law to a person who has committed an administrative offense. Otherwise, this may be the case only in the case of retroactive force of the law, as described in the commentary to art. 5 of the Administrative Code.
An overview of judicial practice.
On July 3, 2017, a protocol was drawn up against Mr. B. stating that on that day in the city of Karaganda, when the vehicle was stopped by police officers, Mr. B. left the salon without their permission, that is, he violated the requirements of subclause 1) of clause 4.1 of the "Rules of the Road (hereinafter - SDA), approved by the decree of the Government of the Republic of Kazakhstan Dated November 13, 2014, No. 1196.
Part 12 of Article 613 of the Administrative Code established responsibility for the driver and passengers (passengers) leaving the cabin (cabin) of the vehicle in case of its stop by an officer of the Department of Internal Affairs without his permission, as well as their failure to comply with the requirements to exit the cabin (cabin) of the vehicle. However, the Law of the Republic of Kazakhstan dated July 3, 2017 "On Amendments and additions to certain legislative Acts of the Republic of Kazakhstan on traffic issues" excluded the words "and passengers (passenger)" and "and passengers (passenger)" from Part 12 of Article 613 of the Administrative Code.
In accordance with Part 1 of Article 5 of the Administrative Code, a law that mitigates or cancels administrative liability for an administrative offense or otherwise improves the situation of a person who committed an administrative offense is retroactive, that is, it applies to an offense committed before the enactment of this law and in respect of which the decision to impose an administrative penalty has not entered into force. legal force.
Under such circumstances, the SMAS of the city of Karaganda reasonably terminated the proceedings against gr. B according to Part 12 of Article 613 of the Administrative Code, applying paragraphs 3) of Part 1 of Article 741 of the Administrative Code.
Another example. By a resolution of the Burabay District Court of the Akmola region dated February 8, 2018, the case under Part 1 of Article 281 of the Administrative Code against BT LLP was terminated.
On August 29, 2017, for violating clause 11 of the Rules for Registration, Receipt, Issuance, Accounting, Storage and Submission of Accompanying invoices for petroleum products, approved by Order No. 138 of the Minister of Finance of the Republic of Kazakhstan dated February 27, 2015, a protocol on an administrative offense was drawn up against LLP under Part 1 of Article 281 of the Administrative Code. According to the protocol, in the accompanying invoice issued by the supplier of BT LLP to the recipient of K LLP, the "operation code" column mistakenly states "sale to wholesalers" instead of "to the end consumer".
Meanwhile, the Law of the Republic of Kazakhstan dated December 25, 2017 "On Amendments and Additions to certain Legislative Acts of the Republic of Kazakhstan on taxation" amended the above provision stating that until January 1, 2020, the following wording of Part 1 of Article 281 of the Administrative Code was in effect: "failure to submit or late submission of accompanying invoices, declarations for petroleum products tobacco products, as well as the failure or late provision of information necessary for monitoring." That is, the error in the operation code is not covered by the objective side of the imputed LLP offense.
In this regard, BT LLP was not subject to liability due to the repeal of the law or its individual provisions establishing administrative liability.
This is the effect of legislation on administrative liability for administrative offenses (including proceedings on them) in time.
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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