Comment to article 7. The significance of the principles of legislation on administrative offences The Code of the Republic of Kazakhstan on Administrative Offences
The importance of the principles of legislation on administrative offenses lies in the fact that their violation, depending on its nature and materiality, entails the recognition of the proceedings in the case as invalid, the cancellation of decisions made during such proceedings, or the recognition of materials collected that do not have the force of evidence.
The principles of law are traditionally understood as fundamental ideas, guiding principles that characterize the unity and fundamental trends in the development of specific legal norms governing the relevant sphere of public relations. Similar concepts are described in many textbooks and other literature. The specific principles of national legislation on administrative offences are set out in articles 8-24 of the Administrative Code.
The commented norm contains a number of blank concepts on which the meaning of the principles of legislation on administrative offenses depends.:
1) the nature of the administrative offense;
2) the materiality of the administrative offense.
Unfortunately, codified and other legislation on administrative offences does not provide a clear definition of the nature of an administrative offence.
There are various points of view in the legal literature regarding its content. The term "nature of offenses" is interpreted differently in the legal literature, and also differs in the scope of definitions included in this term.
It should be assumed that the term "nature of an administrative offense" is generalized, has a collective image, which makes sense depending on the specific tort situation. Therefore, the term "nature of the offense" encompasses the qualifying features of the objective and subjective sides of the offense. We believe that the "nature" of an administrative offense is synonymous with the "degree" (level) of public danger of an administrative offense. In turn, the degree of public danger is individual for each administrative offense.
Paragraph 5 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No. 7 clarifies the specific nature of the administrative offense, which depends on the provisions of the Criminal Code. Some articles of the Administrative Code contain as a condition of administrative responsibility the occurrence of consequences that did not cause major damage. In such cases, the definition of the amount of damage is contained in the Criminal Code, since in accordance with Part 2 of art. 25 of the Administrative Code, administrative liability for offenses provided for in articles of the Special Part of the Administrative Code occurs if these offenses by their nature do not entail criminal liability in accordance with the legislation.
The nature of the administrative offense is also taken into account when imposing an administrative penalty. 55 of the Administrative Code stipulates that administrative penalties must be fair, appropriate to the nature of the offense, the circumstances of its commission, and the identity of the offender. When imposing an administrative penalty on an individual or a legal entity, the nature of the administrative offense committed, the identity of the perpetrator, including his behavior before and after the offense, property status, circumstances mitigating and aggravating liability are taken into account.
Having recognized the administrative penalty imposed by the resolution as unfair due to its excessive severity, inconsistent with the nature of the offense committed, the identity of the perpetrator or the property status of the legal entity, the judge mitigates the penalty, guided by the general rules for imposing administrative penalties (art. 844 of the Administrative Code).
Violation of the requirements of the principles of legislation on administrative offenses may entail the following consequences:
1) recognition of the proceedings in the case of an administrative offense as invalid;
2) cancellation of the decisions rendered during the proceedings on an administrative offense;
3) recognition of materials collected during the proceedings on an administrative offense that do not have the force of evidence.
Thus, Part 4 of Article 9 of the Administrative Code states that "Violation of the law by a court, bodies (officials) authorized to consider cases of administrative offenses in proceedings on administrative offenses is unacceptable and entails liability established by law, invalidation of adopted acts and their cancellation."
The legal grounds for the cancellation or amendment of the decision in the case of an administrative offense, or the cancellation of the order on the need to pay a fine are provided for in Articles 826-5 and 840 of the Administrative Code. The grounds for revoking or changing a court order and issuing a ruling are:
1) the inconsistency of the judge's conclusions about the factual circumstances of the case set out in the court's decision with the evidence examined during the consideration of the complaint, the prosecutor's appeal motion;
2) incorrect application of the law on administrative responsibility;
3) significant violation of the procedural rules of the Administrative Code;
4) inconsistency of the administrative penalty imposed by the resolution with the nature of the offense committed, the identity of the perpetrator, or the property status of the legal entity.
The recognition of materials collected during the proceedings on an administrative offense that do not have the force of evidence is carried out during the evaluation of evidence. 784 of the Administrative Code, evaluation of evidence is a logical mental activity consisting in the analysis and synthesis of evidence and culminating in a conclusion about the relevance, admissibility, reliability and significance of individual evidence and the sufficiency of their totality to justify the decision.
A judge, an authority (official) conducting proceedings on an administrative offense case, evaluates evidence according to their inner conviction, based on a comprehensive, complete and objective examination of the evidence in its entirety, guided by the law and conscience. No evidence has a pre-established validity. Evidence is considered admissible if it is obtained in accordance with the procedure provided for in the Administrative Code. A proof is considered reliable if, as a result of verification, it turns out that it corresponds to reality. The totality of evidence is considered sufficient to resolve a case if all relevant admissible and reliable evidence has been collected that indisputably establishes the truth about each and every one of the circumstances to be proved. In more detail, the specifics of recognizing the collected factual data that does not have the force of evidence are regulated in Chapter 39 of the Code.
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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