Comment to article 46. Deprivation of a special right The Code of the Republic of Kazakhstan on Administrative Offences
1. The deprivation of a special right granted to a specific person is applied by a judge.
2. The term of deprivation of a special right may not be less than one month or more than two years.
3. The term of deprivation of the right to drive vehicles may not be less than six months and more than ten years.
4. Deprivation of the right to drive vehicles may not be applied to persons who use these means due to disability, except in cases of driving while intoxicated or evading an inebriation examination in accordance with the established procedure, as well as leaving the scene of a traffic accident in violation of the established rules, the participants of which they appeared.
5. The deprivation of the right to hunt, fish, store and carry hunting weapons, ammunition for them and fishing gear may not be applied to persons for whom hunting (fishing) is the main legitimate source of livelihood, except for the systematic violation of the procedure for the use of this right.
Part 1. One of the types of administrative punishment is the deprivation of a special right granted to a specific person who is appointed by a judge. After analyzing this article, we can conclude that the legislator means by deprivation of a special right – the deprivation of a particular person's right to drive a vehicle and the deprivation of the right to hunt, fish, store and carry hunting weapons, ammunition and fishing gear.
Deprivation of a special right can be applied as a basic type of penalty, as well as an additional one.
The imposition of a penalty in the form of deprivation of a special right is carried out only by a judge.
The courts widely practice the use of administrative penalties in the form of deprivation of a special right. If the guilt of the person being held administratively liable is proven, the deprivation of the right to drive vehicles is mandatory according to the following provisions of the law:
608 of the Administrative Code "Driving a vehicle by a driver who is in a state of alcoholic, narcotic and (or) substance abuse intoxication, as well as transferring control of a vehicle to a person who is in a state of alcoholic, narcotic and (or) substance abuse intoxication";
- Part 2 of Article 610 of the Administrative Code "Violation of traffic rules by drivers of vehicles, resulting in injury to human health, damage to vehicles or other property";
- Part 2 of Article 611 of the Administrative Code "Driver's failure to perform duties in connection with a traffic accident";
- Part 4 of Article 613 of the Administrative Code "Failure to comply with the requirements of an employee of the internal affairs bodies (police), transport control at vehicle checkpoints across the State border of the Republic of Kazakhstan and at transport control posts on the territory of the Republic of Kazakhstan, military police, evading examination for alcohol, narcotic and (or) substance abuse intoxication".
At the same time, the goals of administrative punishment provided for in Part 2 of Article 40 of the Administrative Code are achieved, such as educating the person who committed the offense in the spirit of compliance with the requirements of the law and respect for the rule of law, as well as preventing the commission of new offenses by both the offender and others.
However, today there is a problem with the imposition of this type of penalty. Using the example of imposing an administrative penalty in the form of deprivation of a special right for committing administrative offenses under Article 608 of the Administrative Code, one can verify the validity of the above conclusion.
The composition of administrative offenses provided for in parts of Article 608 of the Administrative Code can be divided into subjects of an administrative offense, namely: an offense committed by a person who has the right to drive a vehicle; a person deprived of the right to drive a vehicle; a person who does not have the right to drive a vehicle.
The practice of imposing administrative penalties develops in such a way that a person who has committed an administrative offense is deprived not only of the actual, but also of the alleged right, since in their rulings the courts indicate the deprivation of the right to drive vehicles, without specifying which categories of vehicles the offender is deprived of the right to drive. Thus, a person who has the right to drive vehicles of category "B" is deprived of the right to drive vehicles of other categories, for which he did not receive a driver's license.
At the same time, the offender is recognized as not having the right to drive vehicles if he has a driver's license for the right to drive a certain category of vehicle, but actually drove a vehicle of another category (he has the right to drive a vehicle of category "B", but actually drove a vehicle of category "C" or "D") and is subject only to administrative arrest.
The provisions of the articles of the Special Part of the Code, which provide for the deprivation of a special right, explicitly indicate gross violations of the relevant rules (for example, driving a motor vehicle while intoxicated).
Part 2. The term of deprivation of a special right has a relatively definite character and is imposed within the limits of the sanctions of the articles of the Special Part. The minimum term of deprivation of a special right may not be less than one month, and the maximum - more than two years.
Part 3. The term of deprivation of the right to drive vehicles also has a relatively specific character and is also imposed within the limits of the sanctions of the articles of the Special Part. The minimum term of deprivation of the right to drive a vehicle may not be less than six months, and the maximum - more than ten years.
Part 4-5. Within the meaning of this article, the deprivation of a special right applies to individuals. Its regulations provide for the following restrictions on the use of deprivation of a special right:
deprivation of the special right to drive a vehicle may not be applied to a person who uses a vehicle due to a disability, except in cases of driving while intoxicated, evading a medical examination for intoxication in accordance with the established procedure, as well as leaving the place of a traffic accident in violation of the established rules, a participant in which He was;
The deprivation of a special right in the form of the right to hunt cannot be applied to persons for whom hunting (fishing) is the main legitimate source of livelihood.
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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