Comment to article 671. Failure to notify the bailiff of a change of place of work and residence of a person who is a debtor in enforcement proceedings The Code of the Republic of Kazakhstan on Administrative Offences
Failure, for disrespectful reasons, by the person making the deduction under the enforcement document, within one month to the bailiff and the person receiving alimony, about the dismissal of the person paying the payments, as well as about his new place of work and residence, if he knows it., -
entails a fine in the amount of ten monthly calculation indices.
The general object of the administrative tort under consideration is the normal activity of the institution of state power.
The generic object is the procedure established by law for notifying the bailiff.
The objective side of the act in question is presented in the form of inaction – failure to report, not notify, not inform both the bailiff and the person receiving alimony, within a month, about the dismissal of the person paying the payments, as well as about his new place of work and residence, for disrespectful reasons.
In accordance with art . 100 "Information on the debtor's place of work and income", the Law of the Republic of Kazakhstan dated April 2, 2010 No. 261-IV "On Enforcement proceedings", persons with whom the debtor is in an employment relationship or from whom he receives income are required to provide reliable information about the debtor's place of work and income within the time period set by the bailiff., making deductions in accordance with the enforcement document and forwarding the recovered amount to the recoverer, foreclosing on monetary amounts and the debtor's property, as well as on the debtor's dismissal, his new place of work or residence, if they are aware of this.
Such information is mandatory due to the fact that in accordance with Article 52 of the Law "On Enforcement Proceedings", which regulates the place of enforcement actions, the enforcement document is presented at the place of registration of an individual debtor, either at his place of permanent residence or at his place of work with the implementation of enforcement actions at the place of presentation, as well as at the place of registration or location of his property.
In addition, in accordance with the Methodological Recommendations for the execution of judicial acts on the recovery of alimony, the bailiff sends the following documents to the organization at the place of income generation:
- resolution on foreclosure on wages and other incomes of the debtor;
- a copy of the enforcement document, which is the basis for the recovery;
- resolution on debt determination (if any);
- the details of the recoverer (a copy of the identity card, a certificate from a second-tier bank on the availability of a 20-digit checking account, contact information, and in the absence of the recoverer's data, a CSI account or a cash control account of the territorial division of justice).
The resolution on foreclosure on the debtor's wages and other income, along with other requirements, must require the bailiff to provide quarterly information on deductions and transfers of alimony to the claimant, accompanied by payment orders or receipts.
Nevertheless, in order to collect additional information, the bailiff has the right to send a request to the person paying the salary for mandatory provision of information in case of dismissal of the debtor.
At the same time, failure to provide information for unsubstantiated reasons is a mandatory offense of administrative responsibility. The question of whether the reasons for not providing relevant information are valid or disrespectful is decided on a case-by-case basis by the person who has the right to bring offenders to justice, since the article in question does not contain at least an approximate list of circumstances related to valid reasons.
For example, valid reasons for not providing the specified information to an alimony payer may be: illness of the payer himself or his family members, as a result of which he was forced to take care of them; delay in issuing or handing over to the alimony payer an order for employment or dismissal, a copy of an author's or other civil contract, delay in withdrawing from registration or registration at the place of residence or at the place of stay , etc. With respect to other persons who are required to provide the specified information, the exceptional circumstances prevailing in the relevant organization (natural disasters, a strike, seizure of documentation by unauthorized persons, etc.) may be valid reasons for non-fulfillment of this obligation.
Within the meaning of the commented article, the subjects of the offense are persons with whom the debtor has an employment relationship or from whom he receives income (i.e., persons who make deductions under the enforcement document).
In accordance with paragraph 21 of Part 1 of Article 1 of the Labor Code of the Republic of Kazakhstan, dated November 23, 2015 No. 414-V, labor relations are understood as relations between an employee and an employer arising in the exercise of rights and obligations provided for by the labor legislation of the Republic of Kazakhstan, agreements, labor, collective agreements and acts of the employer. In short, the subject of the administrative offense in question is the employer.
It should be noted that when a writ of execution is received by an organization in which the employee no longer works and no payments are made to him, the employer must return the writ of execution, explaining in any form the reason for the return (since he is not the person making the payment of wages or other income to the debtor).
The subjective side of the offense in question can only be presented in the form of intent, since the very disposition of the article indicates that in order for responsibility to occur, a person must be aware of the change of job of the person paying the payments, as well as of his new place of work and residence. If such information is not known, there can be no question of any administrative responsibility.
On the basis of part 1 of Article 694 of the Administrative Code, cases of administrative offenses provided for in Article 671 of the Administrative Code are subject to judicial review.
According to part 2 of the same article, the head of the authorized body in the field of state registration of normative legal acts, in the field of enforcement of executive documents and his deputies, the head of the regional, city of republican significance and the capital of the judicial authorities and his deputies have the right to impose administrative penalties.
In accordance with paragraph 2, Part 1, Article 126 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings", the protocol on an administrative offense may be drawn up by a bailiff (with the exception of a private one).
Thus, private bailiffs, who have the majority of judicial acts in execution, are forced to establish administrative violations.
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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