Comment to article 535. Violation of the procedure for customs declaration of goods The Code of the Republic of Kazakhstan on Administrative Offences
1. Violation by the declarant and (or) the customs representative of the procedure for customs declaration of goods, that is, non-compliance with the requirements established by the customs legislation of the Eurasian Economic Union and (or) the Republic of Kazakhstan on the procedure for completing the customs declaration and customs declaration, including preliminary, incomplete, periodic and temporary customs declaration of goods, at the place of customs declaration of goods, except for cases provided for in other articles of this chapter - shall entail a warning.
2. The act provided for in the first part of this article, committed repeatedly within a year after the imposition of an administrative penalty, -
entails a fine in the amount of twenty-five monthly calculation indices.
The commented article establishes administrative liability for violation of the procedure for customs declaration of goods.
The generic object of offenses provided for in Article 535 of the Administrative Code is the customs regulation procedure established in the legislation of the Republic of Kazakhstan and protected by the state in the Republic of Kazakhstan.
The direct object of the offenses provided for in Article 535 of the Administrative Code is the procedure established and protected by the state for the customs declaration of goods and customs control in the Republic of Kazakhstan.
The subjects of offenses provided for in Article 535 of the Administrative Code are individuals and legal entities required to carry out customs declaration: in particular, the declarant and (or) the customs representative.
A declarant is a person who declares goods or on whose behalf the goods are declared.
A customs representative is a legal entity of the Republic of Kazakhstan included in the register of customs representatives that performs customs operations on behalf of and on behalf of a declarant or other interested person in accordance with the customs legislation of the EAEU and/or the Republic of Kazakhstan.
The subjective side of the unlawful acts provided for in Article 535 of the Administrative Code for individual offenders is characterized by guilt in the form of intent or negligence. The guilt of a person is revealed by his mental attitude towards the illegal acts committed by him and their harmful consequences.
The subjective side of offenses, the subjects of which are legal entities, is not subject to determination due to the existence of a legal requirement to establish guilt as a condition for bringing to administrative responsibility, only in relation to individuals. According to the legislation of the Republic of Kazakhstan on administrative responsibility, legal entities are administratively liable for the mere fact that they have committed an illegal act or omission, for which administrative liability is provided for in the Administrative Code, without taking into account the guilt of the officials of the legal entity who committed this act.
The administrative offences provided for in Article 535 of the Administrative Code are formal. To bring to administrative responsibility for their commission, it is not necessary to establish that the offender has caused material harm to the State or third parties.
Part 1 of the commented article establishes administrative liability for violation by the declarant and (or) the customs representative of the procedure for customs declaration of goods.
The objective side of the offense provided for in the commented article is characterized by the commission of illegal actions by the declarant and (or) the customs representative, which are expressed in violation of the procedure for customs declaration of goods.
Violation of the procedure for customs declaration of goods, by virtue of the direct indication of the legislator in the commented norm, is understood to mean non-compliance with the requirements established by the customs legislation of the EAEU and (or) the Republic of Kazakhstan on the procedure for completing the customs declaration and customs declaration, including preliminary, incomplete, periodic and temporary customs declaration of goods, at the place of customs declaration of goods.
At the same time, by virtue of the direct indication in the commented article, the exclusion from the objective side of the offense provided for in the commented article is specific cases of violations of the customs declaration procedure, which are provided for in other articles of Chapter 29 of the Administrative Code "Administrative offenses in the field of customs affairs" (for example, Article 551 of the Administrative Code "Non-declaration or unreliable customs declaration of goods, cash monetary funds, monetary instruments, false statement of information in customs documents").
Consequently, the commented article applies only to those cases of violations of the customs declaration procedure for goods that are not provided for as separate compounds in other separate articles of Chapter 29 of the Administrative Code. Accordingly, the commented article is not subject to application to the offenses provided for in other articles of Chapter 29 of the Administrative Code related to violation of the procedure for customs declaration of goods.
A customs declaration is a declaration by a declarant to a customs authority using a customs declaration of information about goods, about the chosen customs procedure and (or) other information necessary for the release of goods.
According to the general requirement of Clause 3 of Article 175 of the Code of the Republic of Kazakhstan "On Customs Regulation in the Republic of Kazakhstan", customs declaration is carried out in electronic form. In this case, a written customs declaration is allowed.: 1) when placing goods under the customs procedure of customs transit; 2) in respect of goods for personal use; 3) in respect of goods sent in international mail; 4) in respect of vehicles of international transportation; 5) when using transport (shipping), commercial and (or) other documents as a customs declaration, including those provided for by international treaties of the Republic of Kazakhstan; 6) in other cases determined by the EAEU Commission and the customs legislation of the Republic of Kazakhstan.
Accordingly, depending on the form of the customs declaration, an electronic customs declaration or a paper customs declaration is used.
A customs declaration is a customs document containing information about goods and other information necessary for the release of goods.
The following types of customs declaration are used in the customs declaration: 1) goods declaration; 2) transit declaration; 3) passenger customs declaration; 4) vehicle declaration.
The forms of customs declarations, the procedure for filling them out and the list of information to be entered in them are determined by the EAEU Commission.
According to the imperative requirement of paragraph 1 of Article 175 of the Code of the Republic of Kazakhstan "On Customs Regulation in the Republic of Kazakhstan", goods are subject to customs declaration when they are placed under the customs procedure or in other cases provided for by the Code.
Failure by the declarant, customs representative and (or) other obligated persons to fulfill or improperly fulfill the obligations stipulated for them by the customs legislation of the EAEU and (or) the Republic of Kazakhstan for the complete, timely and reliable completion of customs declarations, as well as non-compliance with other requirements for the procedure for completing the customs declaration and customs declaration of goods, constitutes the final offense provided for in the commented article.
For committing an offense under Part 1 of Article 535 of the Administrative Code, an administrative penalty is imposed in the form of a warning.
This penalty is imposed on offenders by specifying it in the decision on the imposition of an administrative penalty and its mandatory announcement, as well as handing over or sending a copy of the decision to the offender. In this case, in order to qualify further actions of the offender when committing similar offenses in the future, the person is considered to have been subjected to administrative punishment from the moment of delivery (referral) He likes it.
An administrative penalty under Part 1 of the commented article is imposed on the offender by the state revenue authorities or the court, if the case is considered in court.
Part 2 of the commented article establishes a more severe penalty for repeated commission of any of the acts provided for in Part 1 of the commented article within a year after the imposition of an administrative penalty.
At the same time, the object, the subjective side and the subjects of the offense provided for in Part 2 of the commented article coincide in their characteristics with the object, the subjective side and the subjects of the offense provided for in Part 1 of Article 535 of the Administrative Code.
In the description of the objective side of the offense provided for in Part 2 of Article 535 of the Administrative Code, a sign of repetition is added to any of the acts provided for in Part 1 of the commented article.
An offense is considered to have been committed repeatedly if a person has previously committed any of the acts provided for in Part 1 of Article 535 of the Administrative Code, has been subjected to administrative punishment for it, and the one-year period during which the person is considered to have been subjected to administrative punishment has not expired yet.
The repetition of an offense is an independent qualifying feature, entailing the qualification of an unlawful act as an independent element of an offense under Part 2 of Article 535 of the Administrative Code.
Repetition as a qualifying feature is established not only in fact by identifying the number and nature of illegal acts committed by the violator during the year, but also legally by establishing the fact of bringing this person to administrative responsibility for committing any of the acts provided for in Part 1 of Article 535 of the Administrative Code, the existence of an effective decree of an authorized state body or court on the imposition of administrative penalty under part 1 of art . 535 of the Administrative Code, the fact of its announcement, delivery or referral to the offender and the expiration of a one-year period from the date of imposition of the penalty.
If a person has committed an illegal act repeatedly or continues to commit it after the start of the commission and until it is revealed, but until that moment he has not previously been brought to administrative responsibility under Part 1 of Article 535 of the Administrative Code, then bringing him to responsibility under Part 2 of Article 535 of the Administrative Code is impossible, since there is no qualifying sign of repetition. In this case, the person must be brought to administrative responsibility and punished under Part 1 of art. 535 of the Administrative Code, even if there are signs of repeated violations during the year and the uniformity of violations committed.
For repeated commission of any of the acts provided for in Part 1 of Article 535 of the Administrative Code within a year after the imposition of the penalty, the offender is punished with a fine.
The amount of the fine for committing an offense under Part 2 of Article 535 of the Administrative Code is 25 MCI, is fixed and is not subject to change by the body imposing it.
An administrative penalty under Part 2 of the commented article is imposed on the offender by the state revenue authorities or the court, if the case is considered in court.
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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