Comment to article 459. Violation of the procedure for the subsequent official publication of texts of regulatory legal acts The Code of the Republic of Kazakhstan on Administrative Offences
Violation of the procedure for the subsequent official publication of the texts of regulatory legal acts, committed in the form of:
1) the subsequent official publication of the texts of regulatory legal acts that have not been examined for compliance of the texts published by them with the reference control bank of regulatory legal acts of the Republic of Kazakhstan;
2) non-publication of regulatory legal acts of the Republic of Kazakhstan in strict accordance with the reference control bank;
3) failure to specify the effective date;
4) subsequent publication of official texts of normative legal acts with comments of the printed edition to the published normative legal acts, -
entails a fine for small businesses in the amount of thirty, for medium-sized businesses in the amount of sixty, for large businesses in the amount of one hundred monthly calculation indices.
The object of the administrative offense being commented on is the established management procedure in the field of compliance with the legislation of the Republic of Kazakhstan on the publication of regulatory legal acts.
The subject of the offense is a regulatory legal act, the concept of which is given in paragraph 25 of Article 1 of the Law of the Republic of Kazakhstan dated April 6, 2016 No. 480 "On Legal Acts". A regulatory legal act is a written official document on paper and an identical electronic document of the prescribed form, adopted at a republican referendum or by an authorized body, establishing legal norms, amending, supplementing, terminating or suspending their operation.
The objective side of the commented article is characterized by illegal actions (inaction) expressed in violation of the procedure for subsequent official publication of texts of regulatory legal acts. Violations of the process of official publication of regulatory legal acts are characterized as:
1) the subsequent official publication of the texts of regulatory legal acts that have not been examined for compliance of the texts published by them with the reference control bank of regulatory legal acts of the Republic of Kazakhstan;
2) non-publication of regulatory legal acts of the Republic of Kazakhstan in strict accordance with the reference control bank;
3) failure to specify the effective date;
4) subsequent publication of official texts of normative legal acts with comments of the printed edition to the published normative legal acts.
Only the above-mentioned illegal actions (omissions) form part of the offense listed in the disposition of Article 459 of the Administrative Code, and are not subject to expanded interpretation.
The mandatory official publication of regulatory legal acts is provided for in Article 37 of the Law of the Republic of Kazakhstan dated April 6, 2016 "On Legal Acts". The official publication of normative legal acts concerning the rights, freedoms and duties of citizens is a prerequisite for their application. The official publications are the Gazette of the Parliament of the Republic of Kazakhstan, the Collection of Acts of the President of the Republic of Kazakhstan and the Government of the Republic of Kazakhstan, and the Bulletin of the National Bank of the Republic of Kazakhstan. The official publication of legislative acts is also carried out by periodicals that have received such a right on a competitive basis. The mechanism for holding a competition for the right to officially publish legislative acts in periodicals was approved by Resolution No. 762 of the Government of the Republic of Kazakhstan dated December 2, 2016. This legal act defines the following concepts:
1) a competition is a way to identify periodicals in order to grant them the right to officially publish legislative acts.;
2) periodical print edition – newspaper, magazine, almanac, bulletin, appendices to them, having a permanent name, current issue and issued at least once every three months.;
3) legislative act – a law introducing amendments and additions to the Constitution of the Republic of Kazakhstan, a constitutional law, a decree of the President of the Republic of Kazakhstan having the force of a constitutional law, a code, a consolidated law, a law, a decree of the President of the Republic of Kazakhstan having the force of law, a resolution of the Parliament of the Republic of Kazakhstan, resolutions of the Senate and the Majilis of the Parliament of the Republic of Kazakhstan.
The competition is held in order to grant the right to official publication of the following legislative acts:
1) laws introducing amendments and additions to the Constitution of the Republic of Kazakhstan;
2) constitutional laws of the Republic of Kazakhstan and decrees of the President of the Republic of Kazakhstan having the force of constitutional law;
3) codes of the Republic of Kazakhstan;
4) consolidated laws of the Republic of Kazakhstan, laws of the Republic of Kazakhstan, as well as decrees of the President of the Republic of Kazakhstan having the force of law;
5) resolutions of the Parliament of the Republic of Kazakhstan, resolutions of the Senate and the Mazhilis of the Parliament of the Republic of Kazakhstan.
The official publication of regulatory legal acts is also carried out in the Reference Control Bank of Regulatory Legal Acts of the Republic of Kazakhstan in electronic form.
In accordance with paragraph 15 of Article 1 of the Law of the Republic of Kazakhstan dated April 6, 2016 "On Legal Acts", the Reference Control Bank of Regulatory Legal Acts is a set of regulatory legal acts on paper and an electronic system of regulatory legal acts in the form of an electronic document, information about which is entered into the state register of regulatory legal acts of the Republic of Kazakhstan.
According to Clause 12 of Article 1 of the Law of the Republic of Kazakhstan "On Electronic Document and Electronic Digital Signature", an electronic document is a document in which information is presented in electronic digital form and certified by means of an electronic digital signature.
The procedure for forming a Reference Control Bank of regulatory legal acts of the Republic of Kazakhstan, as well as for entering information into it, was approved by Order No. 786 of the Minister of Justice of the Republic of Kazakhstan dated September 22, 2016. Regulatory legal acts marked "For official use", "Without publication in print", "Not for printing" are placed in the Reference Control Bank in electronic form in the form of banking details. Regulatory legal acts with the stamp of "special importance", "top secret", "secret" are not subject to inclusion in the Reference Control Bank.
The first official publication of regulatory legal acts must be carried out simultaneously in Kazakh and Russian languages within thirty calendar days after the date of their entry into force. Official publications of regulatory legal acts should be used in law enforcement practice. Unofficial publication of regulatory legal acts is allowed only after their official publication.
Joint regulatory legal acts are sent to the RCPI by the authorized body designated responsible for the development of the regulatory legal act.
The signing of regulatory legal acts must be carried out by the registration certificate of the certification center, which is used for electronic digital signatures (when checking the value of the KeyUsage field, the registration certificate contains the values "Digital signature" and "Non-Repudiation") in accordance with the Rules for verifying the authenticity of electronic digital signatures, approved by order of the Minister of Investment and Development of the Republic Kazakhstan dated December 9, 2015 No. 1187.
The signing of joint regulatory legal acts with an electronic digital signature is provided by an authorized body designated responsible for the development of a regulatory legal act. For regulatory legal acts sent by government agencies, a card is filled out in the electronic document management system, which includes the details of regulatory legal acts and reference information about the regulatory legal act. The details of regulatory legal acts and reference information about the regulatory legal act, with the exception of the title, are not included in the texts of regulatory legal acts in DOC or DOCX format.
The subject of the offense is legal entities in the form of small, medium and large businesses. In accordance with article 33 of the Administrative Code, legal entities are subject to administrative liability if the act was committed, authorized, approved by an authority, a person performing the management functions of a legal entity, or an employee of an individual entrepreneur and a legal entity performing organizational, administrative, or economic functions.
The subjective side of the article in question can be expressed as either direct intent or carelessness.
The heads of the judicial authority in the field of state registration of normative legal acts, in the field of enforcement of executive documents and his deputies, the head of the regional, city of republican significance and the capital of the judicial authorities and his deputies have the right to draw up protocols on administrative offenses and impose administrative penalties (art. 694 of 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.);
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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