Comment to article 742. Circumstances that make it possible not to bring to administrative responsibility The Code of the Republic of Kazakhstan on Administrative Offences
Proceedings on an administrative offense case may be terminated in accordance with the procedure provided for by this Code in the event that the material is transferred to the prosecutor or the pre-trial body due to the presence of signs of a criminally punishable act provided for by criminal law.
The circumstance that makes it possible not to bring to administrative responsibility includes the transfer of material on an offense to a prosecutor or a pre-trial body due to the presence of signs of a criminally punishable act provided for by criminal law.
The criminal legislation of the Republic of Kazakhstan consists of the Criminal Code. Other laws providing for criminal liability are subject to application only after their inclusion in the Criminal Code. The objectives of the Criminal Code are: protection of the rights, freedoms and legitimate interests of man and citizen, property, the rights and legitimate interests of organizations, public order and security, the environment, the constitutional order and territorial integrity of the Republic of Kazakhstan, the legally protected interests of society and the state from socially dangerous encroachments, protection of peace and security of mankind, as well as the prevention of criminal offenses. To carry out these tasks, the Criminal Code establishes the grounds for criminal liability, determines which acts dangerous to the individual, society or the state are criminal offenses, that is, crimes or criminal offenses, establishes penalties and other measures of criminal legal impact for their commission.
The only basis for criminal liability is the commission of a criminal offense, that is, an act that contains all the elements of a crime or a criminal offense provided for in the Criminal Code.
Criminal offenses, depending on the degree of public danger and punishability, are divided into crimes and criminal offenses.
A crime is a culpably socially dangerous act (action or omission) prohibited by this Code under threat of punishment in the form of a fine, correctional labor, community service, restriction of liberty, imprisonment or the death penalty (Part 2 of art. 10 of the Criminal Code).
A criminal offense is an act committed guiltily (action or omission) that does not pose a great public danger, has caused minor harm or has created a threat of harm to a person, organization, society or the state, for which punishment is provided in the form of a fine, correctional labor, community service, arrest, expulsion from the Republic of Kazakhstan of a foreigner or stateless persons (Part 3 of Article 10 of the Criminal Code).
It is worth noting that the legislation defining the procedure for proceedings in cases of administrative offenses establishes the same termination procedure for the circumstances listed in articles 741 and 742. At the same time, the circumstances contained in art. 742 of the Administrative Code, as their name implies, only allow (make it possible) not to bring to administrative responsibility, and the circumstances set out in art. 741 of the Administrative Code exclude (explicitly prohibit) any proceedings in the case.
According to Article 809 of the Administrative Code, in the presence of at least one of the circumstances provided for in Articles 741 and 742 of the Administrative Code, the official in charge of the case issues a decision to terminate proceedings on an administrative offense even before the case is referred for consideration.
The court, the authorized body (official), when considering a case of an administrative offense, complaint, protest, is obliged to find out whether there are circumstances provided for in Articles 741 and 742 of the Code. The decision to terminate the proceedings in the case is made based on the results of consideration of the case of an administrative offense in the following cases::
1) the existence of circumstances precluding the proceedings provided for in art. 741 of the Code;
2) the existence of circumstances that make it possible not to bring to administrative responsibility provided for in art. 742 of the Code;
3) transfer of case materials to the relevant authorities to resolve the issue of bringing a person to disciplinary responsibility in accordance with art. 32 of the Code.
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 the Republic of Kazakhstan on Administrative Offenses" provides certain clarifications on the distinction between an administrative offense and a criminally punishable act.
According to its provisions, 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 Article 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.
Thus, non-fulfillment and (or) improper fulfillment by individuals and officials of the duties provided for by the legislation of the Republic of Kazakhstan on accounting and financial reporting, committed in the form of preparation of distorted financial statements, concealment of data to be reflected in accounting, as well as destruction of accounting documentation that did not cause major damage, entail administrative liability under pp. 2) part 1 of Article 238 of the Administrative Code. The amount of major damage is specified in clause 38) of Article 3 of the Criminal Code.
Article 610 of the Administrative Code provides for administrative liability for the commission of an administrative offense when, as a result of a violation by a person driving a vehicle of the established rules for ensuring road safety, damage was caused to vehicles, goods, roads, road and other structures or other property, resulting in material damage or minor harm to the health of the victim. The same act, which caused moderate harm to the victim's health, is a criminal offense in accordance with art. 345 of the Criminal Code.
If, as a result of the above-mentioned unlawful actions, the driver driving the vehicle, along with causing material damage, inflicted harm to several victims of varying severity (mild, moderate, severe) or caused other consequences in the form of death, then the guilty person is subject to criminal liability under the relevant part of articles 345, 346. Criminal Code without bringing to administrative responsibility.
In the event that the actions of the driver, along with causing minor harm to the victim's health, also caused material damage in the form of damage to vehicles or other property, the guilty person is subject to administrative liability only under Part 2 of Article 610 or, if the driver is intoxicated, under Part 3 of Article 608 of the Administrative Code.
If, after executing an administrative penalty in the form of deprivation of the right to drive a vehicle, the driver has not received a driver's license again in accordance with the established procedure, then for the purposes of determining administrative or criminal liability for committing similar offenses, he should be considered as a driver who does not have such a right. If, after the execution of the decision to deprive the driver of the right to drive a vehicle, the driver regained such a right in accordance with the procedure established by law, then for committing an offense under parts 1, 2, and 3 of art. 608 of the Administrative Code, within a year after the expiration of the administrative penalty, he is liable under Part 4 of Article 608 of the Administrative Code, and in the case of committing the same offense after a year, under parts 1, 2 and 3, respectively.
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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