Comment to article 679. Carrying out illegal business activities and obtaining illegal income by state and local government bodies. The Code of the Republic of Kazakhstan on Administrative Offences
Engaging in entrepreneurial activities by state bodies and local self-government bodies outside the functions assigned to them by law, or accepting material benefits and advantages in addition to established sources of financing, -
entails a fine on the heads of these organizations in the amount of six hundred monthly calculation indices.
The general object of this offense is public relations in the field of governance and ensuring the normal functioning of legitimate public activities of state bodies and local governments.
The generic object is the procedure established by regulatory legal acts for carrying out the activities of state bodies and local self-government bodies, as well as the established procedure for financing the activities of these bodies.
The objective side of the tort in question involves the commission of actions. In accordance with article 13 of the Law "On Public Service", the restrictions related to staying in public service include engaging in entrepreneurial activity, namely, activities aimed at generating net income through the use of property, production, sale of goods, performance of works, provision of services based on the right of private ownership (private entrepreneurship) or on the right of economic management or operational management of a state enterprise (state entrepreneurship).
It should be noted that in addition to carrying out entrepreneurial activities, the objective side of this offense also covers the acceptance of material benefits and advantages, in addition to the established sources of financing.
According to the Law "On Civil Service", the sources of financing for state bodies and local governments are the republican or local budgets or funds from the National Bank of the Republic of Kazakhstan.
Acceptance of property benefits and advantages should be understood as acceptance by a person, not only for himself, but also for other persons or organizations, of all kinds of services provided free of charge, payable, or illegal use of benefits, construction, repair work, provision of sanatorium or tourist vouchers, travel tickets, loans or loans on preferential terms, etc..
However, unlike the administrative offense provided for in Article 677 of the Administrative Code (Receiving illegal financial remuneration by a person authorized to perform government functions or a person equivalent to him), this article provides for liability for obtaining material benefits and advantages from unidentified sources of financing that are not related to the implementation of one-time actions in favor of the interests of individuals or legal entities. persons. This is explained by the fact that in accordance with paragraph 3 of part 1 of Article 13 of the Law "On Combating Corruption" and paragraph 2 of part 1 of Article 13 of the Law "On Public Service", the performance of public functions is incompatible with any other paid activity, except for teaching, scientific and other creative activities.
It should also be noted that it is not an administrative offense to provide anyone with any assistance not provided for by the legislation of the Republic of Kazakhstan in carrying out entrepreneurial and other income-generating activities. Such acts, in accordance with Article 50 of the Law "On Civil Service", are regarded as disciplinary offenses discrediting the civil service.
As noted by Kazakh lawyer and business expert A. Lobkov, in Kazakhstan, there are the following types of illegal entrepreneurship, for which administrative or criminal liability is provided.:
1. Carrying out business activities without state registration or in violation of the rules of registration with an authorized body.
2. Carrying out business activities without a license, special permit, qualification certificate (certificate) in cases where the availability of such documents is mandatory for the production of any goods, works or services.
3. Carrying out business activities in violation of the license terms or during the period of suspension of the license.
4. Engaging in prohibited types of entrepreneurial activity.
5. Submission of documents containing deliberately false information to the authorized body that carries out state registration or issues licenses and other permits.
6. Carrying out business activities without the appropriate re-registration of a legal entity, branch or representative office.
7. False entrepreneurship.
However, attention should be paid to the fact that the actions in question, "the conduct of entrepreneurial activity by state bodies", in relation to this article, are considered illegal not because of the presence of the above conditions, but because the very practice of entrepreneurial activity by state bodies is prohibited.
The subject of the offense in question, in terms of accepting material benefits and advantages, may be any material benefits and advantages, including - money, securities (bonds, promissory notes, cheques, 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, preferential loans), the provision of gratuitous services payable (repair work, provision of tourist trips, trips to health resorts, etc.).
The commented article provides for a special subject - heads of state bodies and local governments. However, it should be noted that the disposition of the article indicates a collective nature – the implementation of entrepreneurial activities by state bodies or local governments, and not by individual civil servants.
The concept of a state body is ambiguously defined in the theory of law. In one case, this term is considered as part of the state apparatus.
In another case, the State body is considered as part of the mechanism of the state.
Other authors do not refer the organ of the state either to its apparatus or to its mechanism, but consider it either as a part of the state as a whole, or as an organization solving state tasks.
Persons who carry out their activities in government agencies are recognized as civil servants.
In turn, E. M. Khasenov points out that civil servants in the Republic of Kazakhstan should include a certain group of society that concentrates state power in its hands and is responsible for developing a strategy for the development of the entire system.
Local self-government bodies in the Republic of Kazakhstan are bodies that, in accordance with the Law "On Local Public Administration and Self-Government in the Republic of Kazakhstan", are entrusted with the functions of resolving issues of local importance.
The Law of the Republic of Kazakhstan "On Combating Corruption" establishes a ban on engaging in entrepreneurial activity for persons authorized to perform state functions (with the exception of deputies of maslikhats who do not carry out their activities on a permanent or exempt basis), persons equated to persons authorized to perform state functions (with the exception of candidates for President of the Republic of Kazakhstan, deputies of the Parliament of the Republic of Kazakhstan or maslikhats, akims of cities of regional significance, towns, villages, rural districts, as well as members of elected local government bodies, persons operating in quasi-public sector entities).
The subjective side of this administrative offense is characterized by guilt in the form of direct intent. The presence of direct intent means that the offender is aware of the unlawful nature of his act, anticipates the harmful consequences of his act and desires their occurrence.
Thus, a person realizes that he is the head of a state body or a local government body and, despite the prohibition established by law, under his leadership, the organization carries out business activities or accepts material benefits and advantages, in addition to the established sources of financing.
For example, a government agency that owns several official vehicles, on the instructions of the head, carries out actions to transfer these vehicles for rent (into operation) for a certain amount of money, despite the fact that this activity is in no way related to the organization's performance of functions assigned to it by the state.
It should be noted that one of the main responsibilities assigned to the heads of state bodies and local governments and enshrined in the Law of the Republic of Kazakhstan "On Civil Service" is to ensure compliance with the requirements of the legislation of the Republic of Kazakhstan on combating corruption within its competence, namely, it must ensure that state bodies and local governments do not engage in entrepreneurial activities..
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 31 of part 1 of Article 804 of the Administrative Code, a protocol on this offense is drawn up by authorized state revenue authorities and in accordance with paragraph 60 of the same article, a protocol may be drawn up by 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 the protocol is a function of the central office of the Agency of the Republic of Kazakhstan for Civil Service Affairs and Anti-Corruption. In accordance with part 17 of paragraph 12 of the Order of the Minister of Finance of the Republic of Kazakhstan dated June 14, 2016 No. 306, drawing up an administrative protocol is the right of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan.
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, an individual is not subject to administrative liability for committing an administrative corruption offense after one year from the date of its commission.
According to statistics, in 2017-2018, not a single person 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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