Comment to article 678. Provision of illegal financial remuneration by legal entities The Code of the Republic of Kazakhstan on Administrative Offences
1. Provision by legal entities of illegal material remuneration, gifts, benefits or services to persons authorized to perform state functions, or persons equated to them, if these actions do not contain signs of a criminally punishable act, -
entails a fine in the amount of seven hundred and fifty monthly calculation indices.
2. The actions provided for in the first part of this Article, committed repeatedly within a year after the imposition of an administrative penalty, -
they entail a fine in the amount of one thousand five hundred monthly calculation indices.
The general object of this offense is public relations in the sphere of ensuring the normal functioning of legitimate public activities of persons authorized to perform state functions, or persons equated to them.
The generic object is social relations that arise in the process of material remuneration of persons authorized to perform state functions and persons equivalent to them by legal entities.
The subject of the offense in question is any property, including money, securities (bonds, promissory notes, checks, etc.), tangible assets, the right to property, the illegal provision of property-related services, as well as partial or complete exemption from property obligations, the provision of benefits (reduction of rent payments, emergency housing, receipt of preferential loan), provision of services payable free of charge (repair work, provision of tourist trips, trips to health resorts, travel tickets, loans, etc.P.).
It should be noted that material things that do not have a value expressed in a monetary unit or that do not have the possibility of its realization cannot be the subject of the administrative offense in question. Therefore, the subject is not made up of things that are valuable only to a relative or close person (photographs of loved ones, letters, household items, etc.) that are not of historical significance and cannot be valued in monetary terms.
The objective side is the commission of illegal actions that violate the normal, legally regulated activities of persons authorized to perform state functions, or persons equated to them, consisting in the provision by legal entities of illegal material remuneration, gifts, benefits or services to persons authorized to perform state functions, or persons equated to them.
To qualify what has been done, it does not matter when the material assets (services) were transferred (rendered) to a person authorized to perform government functions, or to a person equated to him – before, during, or after his actions, in the interests of a legal entity.
According to the construction of the objective side, the offense in question has a formal structure. The offense is considered completed from the moment the recipient accepts at least part of the transferred benefits.
Actions to provide illegal material remuneration may not be recognized as an administrative offense if the recipient was not a person authorized to perform government functions or a person equivalent to him.
The provision of financial remuneration may be considered illegal only in cases where:
1) it is a condition for the commission of actions (omissions) in favor of a legal entity;
2) it is related to the expected actions (inactions) of the authorized person, with the nature of the managerial functions performed by him.
As A. M. Subbotin correctly notes, in the framework of the consideration of an administrative offense case according to these facts, it is mandatory to clarify whether there were unlawful acts consisting in the transfer or promise to an official of the relevant property or the provision of property-related services, the granting of property rights for the commission of actions (inaction) in the interests of a legal entity.), related to the official position held by this official.
For example, a legal entity engaged in pharmaceutical activities for the production, processing and storage of medicines transfers a monetary reward to a person authorized to exercise state control and supervision in the field of trafficking in narcotic drugs, psychotropic substances and precursors for issuing an appropriate license, without conducting inspections provided for by law.
The subject of the administrative act in question is a legal entity, regardless of the form of ownership.
The scope of the Law of the Republic of Kazakhstan dated November 18, 2015 No. 410-V "On Combating Corruption" applies equally to both individuals and legal entities.
In accordance with the provisions of Article 33 of the Civil Code of December 27, 1994, an organization is recognized as a legal entity that has separate property by right of ownership, economic management or operational management and is responsible for its obligations with this property, can acquire and exercise property and personal non-property rights and obligations on its behalf, and be a plaintiff and defendant in court. A legal entity must have an independent balance sheet or estimate.
It should be noted that in the Republic of Kazakhstan, for the first time, legal entities have been recognized as subjects of administrative responsibility since the entry into force of the Code of Administrative Offences of the Republic of Kazakhstan, previously in force as amended on January 30, 2001.
As B. A. Zhetpisbayev correctly notes, the experience of law enforcement activities in recent years shows that legal entities must necessarily be recognized as subjects of administrative offenses, and therefore as subjects of administrative responsibility, since the role of legal entities as the main producers of goods for the Republic of Kazakhstan is great in all spheres of state activity: both social and economic, both in the cultural and political life of the country.
In accordance with Article 33 of the Administrative Code, a legal entity is subject to administrative liability for administrative offenses in cases expressly provided for in the Special Part of the Administrative Code.
The subjective side of the commented composition is characterized by direct intent. However, despite the fact that the principle of guilt is fundamental in the system of administrative legislation, there is a definite approach to establish the guilt of a legal entity in administrative law.
In accordance with Article 33 of the Administrative Code, legal entities are subject to administrative liability for an administrative offense if the act (action or omission) provided for in the Special Part of the Administrative Code was committed, authorized, approved by an authority, a person performing the management functions of a legal entity, or an employee of a legal entity performing organizational, administrative or administrative functions.
Thus, the guilt of legal entities is considered through the guilt of individuals representing them, i.e. a subjective criterion is used. As S. D. Shatalov correctly points out, an organization can never act independently, and all its actions are mediated and expressed in the actions of those persons who, by virtue of law, constituent documents, other similar documents, or by virtue of specially issued powers, represent this organization in relations with third parties and act on its behalf, make decisions and (or) exercise control.
Adhering to a similar point of view, J. O. Omrali notes that the actions of a legal entity can only be recognized as the actions of officials and, in some cases, the actions of its employees. In this case, the actions of an official are determined by his official functions.
It should be noted that the responsibility of a legal entity for the offense in question comes regardless of the admission of guilt of an individual, despite the fact that illegal actions are committed by the latter. In turn, such actions of an individual do not fall under the criteria of mediation.
It should also be noted that this administrative offense is aimed at making it economically unprofitable and costly to use corrupt methods to achieve commercial (corporate) goals. The use of administrative and legal methods of influence is a logical complement to the criminal law policy in the field of combating corruption.
Based on part 1 of Article 684 of the Administrative Code, cases of this type of offense are subject to consideration by judges of specialized district and equivalent administrative courts.
According to paragraph 60 of part 1 of Article 804 of the Administrative Code, a protocol on this offense is drawn up by the authorized bodies for civil service affairs and anti-corruption. 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 an administrative protocol is a function of the central office of the Agency of the Republic of Kazakhstan for Civil Service Affairs and Anti-Corruption.
Part 2 of the commented article, in contrast to the first part, provides for the qualified composition of an administrative offense, consisting in the actions of a legal entity provided for in the first part of Article 678 of the Administrative Code, committed repeatedly within a year after the imposition of an administrative penalty.
It should be noted that in accordance with paragraph 30 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 Administrative Offenses of the Republic of Kazakhstan", for committing administrative corruption offenses, the sanctions of articles of Chapter 34 of the Administrative Code do not provide for the confiscation of property obtained as a result of committing an administrative offense. When resolving cases on such administrative offenses, the courts should decide the fate of the material evidence by transferring it to the appropriate institutions or destroying it, indicating this circumstance in the decision on the case of an administrative offense (in accordance with art. 822 of the Administrative Code).
In accordance with Part 2 of Article 62 of the Administrative Code, a legal entity is not subject to administrative liability for committing an administrative corruption offense after three years from the date of its commission.
According to statistics, in 2017-2018, no legal entity was brought to administrative responsibility for the commission of the offense in question.
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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