Comment to article 677. Receipt of illegal material remuneration by a person authorized to perform state functions, or by a person equated to it The Code of the Republic of Kazakhstan on Administrative Offences
Receipt by a person authorized to perform state functions or a person equated to him personally or through an intermediary of illegal material remuneration, gifts, benefits or services for actions (inaction) in favor of the persons who provided them, if such actions (inaction) fall within the official powers of the person authorized to perform state functions, or equated to if these actions do not contain signs of a criminally punishable act., –
entails a fine in the amount of six hundred monthly calculation indices.
The commented article reveals the composition of an administrative offense related to administrative corruption offenses.
This offense was included in the Administrative Code in 2007, previously it was subject to review under the Criminal Code. In many CIS countries, officials are criminally responsible for receiving illegal financial remuneration.
The general object of the offense is the established procedure for ensuring state functions, institutions of the state and society.
The generic object is social relations that arise in the process of accepting illegal material remuneration, gifts, benefits or services for actions (inaction) in favor of the persons who provided them, as well as third parties, by persons authorized to perform state functions or persons equated to them.
The subject of the offense is material remuneration (money, both in national and foreign currency), gifts, benefits and services (any services of a material nature).
Civil servants must resist manifestations of corruption and prevent corruption offenses, as prescribed by Article 52 of the Law of the Republic of Kazakhstan dated November 23, 2015 No. 416-V "On the Civil Service of the Republic of Kazakhstan".
Also, persons authorized to perform government functions, persons equated to them, and persons entering public service assume restrictions to prevent them from committing actions that may lead to them using their powers in personal, group, and other non-official interests.
In accordance with Article 12 of the Law of the Republic of Kazakhstan "On Combating Corruption", such restrictions include:
1) carrying out activities incompatible with the performance of government functions;
2) the inadmissibility of joint service (work) of close relatives, spouses and relatives;
3) the use of official and other information that is not subject to official dissemination in order to obtain or extract property and non-property benefits and advantages;
4) acceptance of gifts in connection with the performance of official duties in accordance with the legislation of the Republic of Kazakhstan.
It should also be noted that the above-mentioned law defines corruption. – illegal use by persons holding a responsible public position, by persons authorized to perform public functions, by persons equated to persons authorized to perform public functions, by officials of their official (official) powers and related opportunities in order to obtain or extract personally or through intermediaries property (non-property) benefits and advantages for themselves or third parties, as well as the bribery of these persons by providing benefits and advantages. That is, the acceptance of illegal financial remuneration by an official can be considered a bribe.
The objective side of the offense is expressed in the receipt by an official personally or through an intermediary of material remuneration, gifts, benefits or services (bribes) for actions (inaction) in favor of the persons who provided them, if such actions (inaction) fall within the official powers of a person authorized to perform state functions, or a person equivalent to him.
The disposition of the article describes the ways of receiving a bribe: personally by an official, or through an intermediary. Receiving financial remuneration personally implies that the official independently negotiates the terms, form and method of receiving a bribe, and what services they will be provided in return.
It is also possible to receive a bribe through an intermediary. The Code of Administrative Offences of the Republic of Kazakhstan does not provide for administrative liability for mediation in obtaining financial assets. However, such responsibility is provided for in Article 368 of the Criminal Code (Mediation in bribery), which defines mediation in bribery as facilitating the recipient and the payer of a bribe to reach or implement an agreement between them on receiving and giving a bribe. Thus, a person authorized to perform state functions will be brought to administrative responsibility, and an intermediary in receiving a bribe should be criminally liable, which in our opinion does not seem logical, due to the discrepancy between the public danger of the act.
Borchashvili I.S. notes that the law does not specify specific ways of receiving bribes, which is quite justified, since it is impossible to foresee all their diversity in advance. To date, there are known cases of receiving funds by transferring to a bank card, replenishing a mobile phone balance, etc.
It should be noted that responsibility comes if there is an administrative offense, but there are no signs of a criminal offense. Article 366 of the Criminal Code provides for the responsibility of civil servants for accepting bribes. A note to this article states: "It is not a crime due to insignificance and it is punishable by disciplinary or administrative proceedings to receive property, the right to property or other property benefits as a gift for the first time by a person specified in part one of this article, in the absence of a prior agreement for previously committed lawful actions (inaction), if the value of the gift it did not exceed two monthly calculation indices." That is, in order to qualify an offense, it is necessary to determine the amount of remuneration received by a civil servant.
For example, a Kostanay policeman has been brought to administrative responsibility for receiving financial remuneration, Kazinform news agency reports with reference to the press service of the regional department of the Agency for Civil Service Affairs and Anti-Corruption. As shown in the case file, on May 13, 2017, a 23-year-old employee of the traffic patrol service of the Department of Internal Affairs released from responsibility a resident of the city who violated traffic rules. But in return, he demanded two 450 tenge doners from the violator. The driver reported this fact to the Department of Internal Security of the Department of Internal Affairs of Kostanay region. The official was brought to administrative responsibility in the form of a fine.
The subject of the offense is a person authorized to perform state functions, or persons equated to him. The subject of this offense will be a special one.
In accordance with paragraph 3 of Article 1 of the Law of the Republic of Kazakhstan "On Combating Corruption", persons authorized to perform state functions include:
- civil servants in accordance with the Law of the Republic of Kazakhstan "On Civil Service of the Republic of Kazakhstan". This law provides the following definition: "civil servant is a citizen of the Republic of Kazakhstan who, in accordance with the procedure established by the legislation of the Republic of Kazakhstan, holds a public position in a state body paid from the republican or local budgets or from the funds of the National Bank of the Republic of Kazakhstan and exercises official powers in order to implement the tasks and functions of the state.";
- maslikhat deputies;
- persons who temporarily perform duties provided for by a public position before their appointment to public service.
According to the content of the article under study, responsibility comes for receiving financial remuneration not only by persons authorized to perform government functions, but also by persons equated to them. Paragraph 4 of article 1 of the Law specifies the circle of these persons, they include:
1) a person elected to local government bodies;
2) a citizen registered in accordance with the procedure established by the law of the Republic of Kazakhstan as a candidate for President of the Republic of Kazakhstan;
3) deputies of the Parliament of the Republic of Kazakhstan or maslikhats;
4) akims of cities of regional significance, towns, villages, rural districts, as well as members of an elected local government body;
5) an employee who permanently or temporarily works in a local government body, whose remuneration is made from the funds of the state budget of the Republic of Kazakhstan;
6) a person performing managerial functions in a state organization or a quasi-public sector entity;
7) employees of the National Bank of the Republic of Kazakhstan and its departments.
On the subjective side, the offense is committed only intentionally and with a selfish purpose.
According to part 1 of Article 804 of the Administrative Code, a protocol on this offense is drawn up:
- bodies of the military police of the Armed Forces of the Republic of Kazakhstan (Part 1, paragraph 4), in relation to the commanders (chiefs) of military units (institutions).
- by the military police bodies of the National Security Committee of the Republic of Kazakhstan on offenses committed by officials of military units (Part 1, paragraph 5), in relation to officials of military units;
- bodies of the military police of the National Guard of the Republic of Kazakhstan (Part 1, paragraph 6) in relation to the commanders of military units;
- the authorized body for civil service affairs and anti-corruption (Part 1, paragraph 60) in all other cases.
In accordance with paragraph 60 of Part 16 of the Decree of the President of the Republic of Kazakhstan dated October 5, 2016 No. 349, the preparation of the protocol is a function of the central office of the Agency of the Republic of Kazakhstan for Civil Service Affairs and Anti-Corruption.
The consideration of administrative cases and the imposition of administrative penalties provided for in this article belong to the jurisdiction of judges of specialized district and equivalent administrative courts (art. 684 of the Administrative Code).
An administrative offense provided for in this article is punishable by a fine in the amount of six hundred monthly calculation indices. The sanction of the article is absolutely definite.
In 2018, a total of 5 facts of the commission of the administrative offense in question were registered. Of these, the court considered 3 administrative cases, and the authorized body for civil service affairs and anti-corruption considered two administrative cases. In 4 cases, the court decided to impose an administrative penalty in the form of a fine, and the case was dismissed in 1 case.
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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