Comment to article 465. Violation of the procedure and deadline for issuing a permit The Code of the Republic of Kazakhstan on Administrative Offences
1. Violation of the permit deadline -
entails a fine for officials in the amount of twenty monthly calculation indices.
2. Issuance of a permit in violation of the procedure established by the legislation of the Republic of Kazakhstan on permits and notifications, as well as unjustified refusal to issue a permit -
they impose a fine on officials in the amount of thirty monthly calculation indices.
3. The actions provided for in the first and second parts of this Article, committed repeatedly within a year after the imposition of an administrative penalty, -
they impose a fine on officials in the amount of fifty monthly calculation indices.
The object of the offense is the established management procedure in the field of licensed activities in the Republic of Kazakhstan.
The offense was caused by a violation of the provisions on the procedure for obtaining licenses (permits, notifications) for carrying out activities provided for by the Law of the Republic of Kazakhstan dated May 16, 2014 "On Permits and Notifications". This Law regulates public relations related to the introduction and implementation of a permissive or notification procedure for the implementation of certain types of activities or actions by private business entities and other persons provided for by this Law.
The objective side of part 1 of the offense under consideration is expressed in illegal actions (omissions) in the form of violation of the deadline for issuing a permit.
The deadlines for issuing permits are stipulated by the Law of the Republic of Kazakhstan dated May 16, 2014 No. 202 "On Permits and Notifications". During licensing or during the implementation of licensing procedures, the licensing authority is obliged to verify the completeness of the submitted documents within two working days from the date of receipt of the applicant's documents for the issuance of a permit and (or) its annex. If the applicant submits an incomplete package of documents, the licensing authority within the specified time limits gives a reasoned refusal to further consider the application.
For permits of the second category, regulatory legal acts may establish other deadlines for the cases specified in the previous paragraph.
Permits of the first and second categories, which are approved by Appendices 1 and 2 to the Law of the Republic of Kazakhstan dated May 16, 2014 "On Permits and Notifications", are not subject to the above deadlines.
If the licensing authority has not issued a permit and (or) an annex to the permit to the applicant within the time limits determined by law, or has not provided a reasoned refusal to issue them, then from the date of expiry of the time limits for their issuance, the permit and (or) the annex to the permit are considered issued and are simultaneously included by the licensing authority in the state electronic register of permits and notifications..
The licensing authority is obliged to issue the relevant permit and/or the application to the permit to the applicant no later than five working days after the expiration of the period for issuing the permit and/or the annex to the permit. If the permitting authority does not issue the permit and/or the annex to the permit after five working days, the permit and/or the annex to the permit are considered received. In this case, the confirmation of the legality of the activity or action (operation) for which a permit procedure is established by this Law, prior to obtaining a permit, is a document confirming the acceptance of the relevant application for a permit by a licensing authority or a State Corporation, issued at the time of receipt of the application.
The objective side of part 2 of the commented article is expressed by two illegal actions (omissions) in the form of:
1) issuing a permit in violation of the procedure established by the legislation of the Republic of Kazakhstan on permits and notifications;
2) unjustified refusal to issue a permit.
The procedure for issuing permits is approved by Articles 25-26 of the Law of the Republic of Kazakhstan dated May 16, 2014 No. 202 "On Permits and Notifications". All documents submitted to the relevant licensing authority or to the State Corporation for the issuance of a permit and (or) an attachment thereto are accepted according to the inventory, a copy of which is sent (handed over) to the applicant with a note on the date of receipt of documents by the specified authority. In this case, the inventory is compiled by the applicant.
If an application is submitted in electronic form through the state information system of permits and notifications, a document confirming the acceptance of the relevant application is issued, certified by an electronic digital signature of an authorized person of the licensing authority.
In the case of submitting an application in electronic form through the state information system of permits and notifications, the confirmation of acceptance of the application is a document certified by an electronic digital signature of an authorized person of the licensing authority.
The objective side of part 3 of the commented article provides for bringing to administrative responsibility for actions provided for in part one of this article, committed repeatedly within a year after the imposition of an administrative penalty.
The subjects of the analyzed offense are officials, namely licensors, who are determined by subordinate regulatory legal acts. For example, the licensor responsible for licensing activities related to the distribution of television and radio channels is defined by the Decree of the Government of the Republic of Kazakhstan dated June 1, 2015 No. 395 "On determining the licensor for licensing activities related to the distribution of television and radio channels and the body authorized to issue permits of the second category in the field of mass media." In this case, the subject of administrative responsibility will be an official of the Committee for State Control in the Field of Communications and Informatization and Mass Media of the Ministry of Information and Communications, authorized to issue permits.
In accordance with Article 30 of the Administrative Code, an official is held administratively liable if he commits an administrative offense in connection with non-performance or improper performance of his official duties. In the absence of this circumstance, an official guilty of committing an administrative offense is liable on general grounds.
The subjective side of the offenses provided for in all parts of the article in question can be committed either in the form of direct intent or through negligence.
Judges of specialized district and equivalent administrative courts have the right to consider cases of administrative offenses provided for in all parts of Article 465 of the Administrative Code (art. 684 of the Administrative Code);
In accordance with part 1 of Article 804 of the Administrative Code, authorized officials have the right to draw up protocols on all parts of Article 465 of the Administrative Code.:
1) the authorized body in the field of tourism activities (paragraph 13);
2) bodies that are licensors or authorized to issue permits of the second category in accordance with the legislation (paragraph 34);
3) the authorized body for entrepreneurship (paragraph 36);
4) the authorized body for civil service affairs and anti-corruption (paragraph 60);
If the prosecutor identifies an offence under Article 465 of the Administrative Code, he has the right to initiate proceedings on an administrative offence by issuing an appropriate resolution. According to paragraph 9, paragraph 1, Article 44 of the Law of the Republic of Kazakhstan "On the Prosecutor's Office", the prosecutor is authorized to initiate and terminate proceedings on an administrative offense in accordance with the procedure provided for by the legislation on administrative offenses.
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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