Comment to article 536. Violation of the procedure for carrying out activities in the field of customs affairs by a customs representative of the Code of the Republic of Kazakhstan on Administrative Offenses
1. Carrying out activities in the field of customs affairs by a customs representative in the interests of a third party without concluding a civil contract with a third party, either after the expiration of the contract or after its termination -
entails a fine in the amount of thirty monthly calculation indices.
2. The action provided for in the first part of this Article, performed by a customs representative repeatedly during the year, -
entails a fine in the amount of fifty monthly calculation indices.
The commented article establishes administrative liability for violation of the procedure for carrying out activities in the field of customs affairs by a customs representative.
The generic object of offenses provided for in Article 536 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 536 of the Administrative Code is the procedure established and protected by the state for carrying out the activities of a customs representative in the interests of a third party, as well as the procedure for customs control over his activities.
The subjects of offenses provided for in Article 536 of the Administrative Code are customs representatives.
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 Eurasian Economic Union and (or) the Republic of Kazakhstan.
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 536 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 responsibility for the performance by a customs representative of activities in the field of customs affairs in the interests of a third party without concluding a civil contract with a third party, either after the expiration of the contract or after its termination.
The objective side of the offense provided for in the commented article is characterized by the commission by a customs representative of illegal actions in the form of activities in the field of customs affairs in the interests of a third party without concluding a civil contract with him or after the expiration of the contract or after its termination.
As required by paragraph 2 of Article 488 of the Code of the Republic of Kazakhstan "On Customs Regulation in the Republic of Kazakhstan", the relations of the customs representative with the declarants or other interested parties arise on a contractual basis. The procedure and form of concluding a contract for the provision of customs representative services are regulated by the civil legislation of the Republic of Kazakhstan and the legislation of the Republic of Kazakhstan on entrepreneurship. According to the general requirement of civil legislation, business contracts must be concluded in writing.
Violation by a customs representative of the requirements of the customs legislation of the EAEU and (or) the Republic of Kazakhstan to the procedure for carrying out his activities in the field of customs affairs in the interests of a third party on the basis of a concluded and valid agreement forms the final composition of the offense provided for in the commented article.
For committing an act provided for in Part 1 of the commented article, the offender is punished with a fine.
The amount of the fine for committing an offense under Part 1 of Article 536 of the Administrative Code is 30 MCI, is fixed and is not subject to change by the body imposing 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 536 of the Administrative Code.
In the description of the objective side of the offense provided for in Part 2 of Article 536 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 536 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 536 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 536 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 . 536 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 536 of the Administrative Code, then bringing him to responsibility under Part 2 of Article 536 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. 536 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 536 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 536 of the Administrative Code is 50 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.);
Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);
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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