Comment to article 612. Driving a vehicle by an undocumented person who does not have the right to drive The Code of the Republic of Kazakhstan on Administrative Offences
1. Driving a vehicle by a driver who does not have a driver's license or a temporary license issued in place of a driver's license for the right to drive, an insurance policy for compulsory insurance of civil liability of vehicle owners and (or) for compulsory insurance of civil liability of the carrier to passengers, registration and other documents established by law for the vehicle the tool, -
entails a fine in the amount of five monthly calculation indices.
2. Driving a vehicle by a person who does not have the right to drive it (except for educational driving), as well as driving a vehicle by a driver who does not have the right to drive the corresponding category of transport, -
they entail a fine in the amount of fifteen monthly calculation indices.
3. Driving a vehicle by a driver deprived of the right to drive a vehicle, -
entails a fine in the amount of ten monthly calculation indices.
4. The actions provided for in the second part of this Article, committed repeatedly within a year after the imposition of an administrative penalty, -
they entail a fine in the amount of thirty monthly calculation indices.
4-1. The actions provided for in the third part of this Article, committed repeatedly within a year after the imposition of an administrative penalty, -
they entail a fine in the amount of twenty monthly calculation indices.
5. Transfer of control of a vehicle to a person who does not have the right to drive (except in cases of driving instruction in accordance with established rules), or to a person deprived of the right to drive a vehicle, -
entails a fine in the amount of fifty monthly calculation indices.
6. The action provided for in part five of this article, committed repeatedly within a year after the imposition of an administrative penalty, -
entails a fine in the amount of seventy monthly calculation indices.
The common object of the offense is the social relations that arise in ensuring road safety.
In accordance with Article 74 of the Law of the Republic of Kazakhstan dated April 17, 2014 No. 194 "On Road Traffic", the right to drive vehicles can be granted to persons who have reached a certain age (depending on the category), who have a medical opinion on the absence of contraindications to driving, and after appropriate preparation are allowed to take exams for obtaining driving rights.
The objective side of Part 1 of the act is manifested in illegal actions (omissions) that violate Traffic Rules by:
1) driving a vehicle without a driver's license or a temporary license issued in place of a driver's license for the right to drive;
2) driving a vehicle without an insurance policy for compulsory insurance of civil liability of vehicle owners and (or) for compulsory insurance of civil liability of the carrier to passengers;
3) driving a vehicle without registration and other legally prescribed documents for the vehicle.
According to the second section of the Traffic Rules, the driver of a mechanical vehicle is required to carry it with him and, at the request of authorized officials of the internal affairs bodies and transport control bodies, transfer it to them for verification.:
1) a driver's license for the right to drive a vehicle or a temporary certificate issued in place of a driver's license with a document certifying the identity of the driver;
2) a certificate of state registration of a vehicle or a document certifying ownership of the vehicle;
3) an insurance policy for compulsory insurance of civil liability of vehicle owners and (or) an insurance policy for compulsory insurance of civil liability of the carrier to passengers;
4) a waybill, a document for the transported cargo (waybill) and other documents for the vehicle established by the legislation of the Republic of Kazakhstan.
Similar requirements (duties of drivers of vehicles) are established by paragraph 4 of Article 54 of the Law of the Republic of Kazakhstan dated April 17, 2014 No. 194 "On Road Traffic".
If one of the above acts is committed, the person is subject to administrative liability. But various scientific sources indicate that human memory has a remarkable and amazing biological property that it can forget. Indeed, it is impossible to find a person in nature who never forgets anything. That is, it is a biological flaw of any person for which there is legal responsibility, which in our opinion is unacceptable. In this regard, it is justified that administrative liability, due to the fact that the driver of the vehicle forgot to take the relevant documents with him, should not exist or cease due to insignificance.
The objective side of part 2 of the commented article is manifested in illegal actions (inaction) that violate Traffic Rules by:
1) driving a vehicle by a person who does not have the right to drive it (except for educational driving);
2) driving a vehicle by a driver who does not have the right to drive the corresponding category of transport.
The right to drive a vehicle is granted depending on the category of transport and the age of the candidate for such a right.
In accordance with Article 74 of the Law of the Republic of Kazakhstan dated April 17, 2014 No. 194 "On Road Traffic", the right to drive vehicles is granted:
1) vehicles of the subcategory "A1" – persons who have reached the age of sixteen;
2) vehicles of categories "A", "B" and subcategories "B1", "C1" – persons who have reached the age of eighteen;
3) vehicles of categories "C" and subcategory "D1" – persons who have reached the age of twenty-one and have at least three years of experience as a driver, including at least one year of experience driving vehicles belonging to category "C1";
4) vehicles of categories "D", "Tm" and "Tb" – persons who have reached the age of twenty-five and have at least five years of experience as a driver, including at least three years of experience driving vehicles belonging to category "D1";
5) compositions of vehicles of categories "VE", "CE", "DE" - to persons who have the right to drive vehicles of categories "B", "C" or "D" respectively for at least twelve months;
6) compositions of vehicles of subcategories "C1E", "D1E" - to persons who have the right to drive vehicles of categories "C", "D" or subcategories "C1", "D1" respectively for at least twelve months.
According to article 73 of the Law "On Road Traffic", certain categories and subcategories of vehicles included in them are established in the Republic of Kazakhstan, for which a special right is granted.:
1) category "A" – motorcycles;
2) category "B" – cars, the permitted maximum mass of which does not exceed three thousand five hundred kilograms and the number of seats of which, in addition to the driver's seat, does not exceed eight; cars of category "B" coupled to a trailer, the permitted maximum mass of which does not exceed seven hundred and fifty kilograms; vehicles of category "B" coupled to a trailer, the permitted maximum mass of which exceeds seven hundred and fifty kilograms, but does not exceed the mass of the vehicle without load, and the total permitted maximum mass of such a combination of vehicles does not exceed three thousand five hundred kilograms;
3) category "C" – vehicles, with the exception of those belonging to category "D", the permitted maximum mass of which exceeds three thousand five hundred kilograms; vehicles of category "C" coupled to a trailer, the permitted maximum mass of which does not exceed seven hundred and fifty kilograms;
4) category "D" – vehicles intended for the carriage of passengers and having more than eight seats, in addition to the driver's seat; category "D" vehicles coupled to a trailer, the maximum permissible mass of which does not exceed seven hundred and fifty kilograms;
5) category "VE" – vehicles of category "B" coupled to a trailer, the permitted maximum mass of which exceeds seven hundred and fifty kilograms and exceeds the mass of the vehicle without load; vehicles of category "B" coupled to a trailer, the permitted maximum mass of which exceeds seven hundred and fifty kilograms, and the total permitted maximum mass of such a combination of vehicles exceeds three thousand five hundred kilograms;
6) category "CE" – vehicles of category "C" coupled to a trailer, the maximum permissible mass of which exceeds seven hundred and fifty kilograms;
7) category "DE" – vehicles of category "D" coupled to a trailer, the maximum permissible mass of which exceeds seven hundred and fifty kilograms, as well as articulated buses;
8) Tm category – trams;
9) category "Tb" – trolleybuses;
10) subcategory "A1" – motorcycles, tricycles, ATVs and mopeds with a maximum design speed of more than fifty kilometers per hour, with an internal combustion engine displacement not exceeding one hundred and twenty-five cubic centimeters, and a maximum power not exceeding eleven kilowatts;
11) subcategory "In 1" – tricycles and ATVs;
12) subcategory "C1" – vehicles, with the exception of those belonging to category "D", the permitted maximum mass of which exceeds three thousand five hundred kilograms, but does not exceed seven thousand five hundred kilograms; vehicles of subcategory "C1" coupled to a trailer, the permitted maximum mass of which does not exceed seven hundred and fifty kilograms;
13) subcategory "D1" – vehicles intended for the carriage of passengers and having more than eight, but not more than sixteen seats, in addition to the driver's seat; vehicles of subcategory "D1" coupled to a trailer, the permitted maximum mass of which does not exceed seven hundred and fifty kilograms;
14) subcategory "C1E" – vehicles of subcategory "C1" coupled to a trailer, the permissible maximum mass of which exceeds seven hundred and fifty kilograms, but does not exceed the mass of the vehicle without load, and the total permissible maximum mass of such a combination of vehicles does not exceed twelve thousand kilograms;
15) subcategory "D1E" – vehicles of subcategory "D1" coupled to a trailer not intended for the carriage of passengers, the maximum permissible mass of which exceeds seven hundred and fifty kilograms, but does not exceed the mass of the vehicle without load, and the total permissible maximum mass of such a combination of vehicles does not exceed twelve thousand kilograms.
Unlike part one, when a penalty is imposed for driving a vehicle without a driver's license or a temporary license issued in place of a driving license, in the commented part of this article, the guilty person initially has no right to drive it (except for educational driving), as well as driving a vehicle by a driver who does not have the right to drive the appropriate category. transport.
The objective side of part 3 of the commented article is manifested in illegal actions that violate the Rules of the road by driving a vehicle, being deprived of the right to drive it. He is recognized as such during the term of the imposed administrative punishment in the form of deprivation of the right to drive a vehicle.
The regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No. 7 "On certain issues of the application by courts of the norms of the Special Part of the Code of Administrative Offenses of the Republic of Kazakhstan" provides explanations on the correct qualification and application of the investigated norm of the Administrative Code.
Drivers who do not have the right to drive the corresponding category of transport cannot be equated with drivers who do not have the right to drive a vehicle at all, with the exception of norms that explicitly mention both subjects at the same time (for example, in the second part of Article 612 of the Administrative Code).
If, after executing an administrative penalty in the form of deprivation of the right to drive a vehicle, the driver has not received a driver's license again in accordance with the established procedure, then for the purposes of determining administrative or criminal liability for committing similar offenses, he should be considered as a driver who does not have such a right.
When driving a vehicle by a driver deprived of the right to drive a vehicle, his actions are qualified under part three of Article 612 of the Administrative Code. Such actions are not subject to additional qualification under Article 669 of the Administrative Code.
According to the degree of public danger, part 3 of the commented article is no less than the acts specified in part 2, but for some reason the sanction in the form of an administrative fine is less by five minimum calculated indicators (by 33%).
According to Article 12.7 of the Russian Code of Administrative Offences, an administrative fine in the amount of five thousand to fifteen thousand rubles is provided for driving a vehicle by a driver who does not have the right to drive a vehicle (with the exception of educational driving). And driving a vehicle by a driver deprived of the right to drive vehicles entails the imposition of an administrative fine in the amount of thirty thousand rubles, or administrative arrest for up to fifteen days, or compulsory labor for a period of one hundred to two hundred hours.
According to the Code of the Republic of Belarus on Administrative Offenses, the categories of persons who do not have the right to drive vehicles and those deprived of the right to drive vehicles are identical. For such an act, an administrative fine of up to 20 basic units is provided.
Based on Article 18.8 of the Code of Administrative Offences, drivers who do not have a driver's license or other documents provided for by the Rules of the Road entail a warning or a fine of up to two basic units.
In this regard, it is justified that Article 612 of the Administrative Code needs to be improved.
The objective side of parts 4 and 4-1 of the article in question is characterized by the actions (omissions) provided for in parts 2 and 3 of this article, respectively, committed repeatedly within a year after the imposition of an administrative penalty.
The difference between parts 4 and 4-1 of this article is the different sizes of sanctions.
The objective side of part 5 of the commented article is characterized by two qualifying features:
1) transfer of control of a vehicle to a person who does not have the right to drive (except in cases of driving instruction in accordance with established rules);
2) transfer of control of a vehicle to a person deprived of the right to drive a vehicle.
According to paragraph 4 of section 2 of the Rules of the Road, drivers of vehicles are prohibited from transferring control of a vehicle to persons.:
1) except for learners who do not have a driver's license (a temporary certificate issued in place of a driver's license and a driver's identity document) for the right to drive a vehicle of this category.;
2) not specified in the waybill (itinerary);
3) not having the right to drive a vehicle;
4) deprived of the right to drive a vehicle.
The objective side of part 6 of the article under study provides for illegal actions (inactions) specified in part 5 of this article, committed repeatedly within a year after the imposition of an administrative penalty.
Paragraph 21 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No. 7 "On certain issues of the application by courts of the norms of the Special Part of the Code of the Republic of Kazakhstan on Administrative Offenses" explains the specifics of the repetition of an administrative offense. An offence is not considered repeated if a person has been released from administrative responsibility and administrative punishment for a previously committed offence on the grounds established by law.
Paragraph 17 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 clarified that when describing the event of an offense, it is necessary to indicate all the qualifying signs of the offense, based on the disposition of the article of the Special Part of the Administrative Code imputed to the offender, including the repetition of actions. A copy of the effective court order (official) confirming the fact of repeated commission of the offense, or information from the bodies of the Committee on Legal Statistics and Special Records of the Prosecutor General's Office of the Republic of Kazakhstan, must be attached to the materials of the administrative offense case. When determining the repetition, the court must proceed from the provisions of the general part of the Administrative Code on the period during which a person is considered to have been subjected to an administrative penalty provided for in Article 61 of the Administrative Code.
The subjective side can be expressed in an intentional or careless form of guilt.
The subjects of an administrative offense under this article are individuals who drive vehicles and have reached the age of 16.
They have the right to consider proceedings on administrative offenses provided for in the commented article.:
1) in all parts - chairmen of committees and heads of departments of the Ministry of Internal Affairs, heads of territorial internal affairs bodies, administrative police units, migration police, local police service of the region, the city of republican significance, the capital, their deputies (paragraph 1 of part 2 of Article 685 of the Administrative Code);
2) according to parts 4, 5 and 6 - heads of departments, police departments, administrative divisions, migration police, local police service of the district (city, district in the city) and their deputies (paragraph 2 of part 2 of Article 685 of the Administrative Code);
3) according to parts 1,2 and 3 - employees of the internal affairs bodies (police) with special ranks (paragraph 4 of part 2 of art. 685 of the Administrative Code);
4) in all parts - inspection engineers of the district and regional authorized bodies for registration of agricultural machinery (Article 716 of the Administrative Code).
5) according to parts 1, 3 and 4-1 - heads of state revenue bodies and their deputies (parts 2 and 3 of Article 720 of the Administrative Code);
6) in all cases - authorized officials of the military police (part 1 of Article 727 of the Administrative Code).
When committing an offense provided for in Parts 1, 2, 4 and 5 of Article 612 of the Administrative Code, police officers have the right to detain, deliver and prohibit the operation of vehicles by delivering them for temporary storage to special sites, parking lots or sites adjacent to a stationary transport control post, including using another vehicle (tow truck), until the reasons for the detention are eliminated (paragraph 1, part 1, Article 797 of the Administrative Code).
On the basis of Article 812 of the Administrative Code, all types of offenses provided for in all parts of 606 of the Administrative Code may also be considered at the place of registration of vehicles, or at the place of residence of the person against whom proceedings on an administrative offense are being conducted.
Cases of administrative offenses of minors, their parents, or persons replacing them are considered at the place of residence of the person in respect of whom proceedings on the case of an administrative offense are being conducted.
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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