Comment to article 746. Legal representatives of an individual  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. The protection of the rights and legitimate interests of an individual against whom proceedings on an administrative offense are being conducted, or of a victim who is a minor or who, due to his physical or mental condition, is unable to exercise his rights independently, shall be carried out by their legal representatives.

     2. The legal representatives of an individual are parents, adoptive parents, guardians, curators and other persons in whose care or dependent they are.

     3. Family ties or the relevant powers of persons who are legal representatives of an individual are certified by documents provided for by the legislation of the Republic of Kazakhstan.

     4. The legal representative of an individual in respect of whom proceedings on an administrative offense are being conducted is allowed to participate in the case from the moment of administrative detention of the person being held administratively liable or drawing up a protocol on an administrative offense.

     5. The legal representatives of an individual against whom proceedings on an administrative offense are being conducted and the victim have the rights and duties provided for in this Code in relation to the persons they represent.

     6. When considering a case of an administrative offense committed by a person under the age of eighteen, the participation of his legal representative is mandatory. In case of evasion from appearance, the legal representative of a minor may be subjected to a drive carried out by the internal affairs body (police).

     comment________________________________________

     Part 1. Representation is a legal relationship in accordance with which one person (representative), on the basis of his authority, acts on behalf of another (represented), directly creating (changing, terminating) rights and obligations for him. A representative relationship that arises on the direct instructions of the law is called legal representation.

     The legal representatives of an individual are persons who, by virtue of their kinship or other ties with an individual, in accordance with the law, can protect the rights and legitimate interests of minors or persons who, due to their physical or mental condition, are unable to exercise their rights independently (those with limited legal capacity or incapacity).  

     The legal representatives of citizens can act in the interests of only two participants in the administrative process: the person against whom the proceedings on the case of an administrative offense are conducted, and the victim.  

     Part 2. The basis for the legal representation of individuals is family ties or powers certified by legally prescribed documents. The legal representatives are the parents, adoptive parents, guardians or guardians and other persons in whose care or dependent they are.  

     These persons, representing the interests of the person in respect of whom proceedings on an administrative offense are being conducted, are required, at the request of a judge, body (official) authorized to consider cases of administrative offenses, to present documents certifying their identity, as well as confirming the fact of adoption, establishment of guardianship or guardianship.  

     Part 3. In accordance with Part 1 of Article 6 of the Law of the Republic of Kazakhstan dated January 29, 2013 No. 73-V "On Identity documents", in the territory of the Republic of Kazakhstan, identity documents are:  

     1) passport of a citizen of the Republic of Kazakhstan;

     2) identity card of a citizen of the Republic of Kazakhstan;

     3) a foreigner's residence permit in the Republic of Kazakhstan;

     4) certificate of a stateless person;

     5) the diplomatic passport of the Republic of Kazakhstan;

     6) official passport of the Republic of Kazakhstan;

     7) Refugee certificate;

     8) identity card of a seafarer of the Republic of Kazakhstan;

     9) a foreign passport;

     10) Certificate of return;

     11) birth certificate.

     The documents confirming adoption or the establishment of guardianship or guardianship are court decisions on the establishment of adoption, as well as on the establishment of guardianship or guardianship.  

     In part 4 of the commented article, it is stated that the legal representative of an individual who is being held administratively liable is allowed to participate in proceedings on an administrative offense from the moment of the administrative detention of this person, or from the moment the protocol on an administrative offense is drawn up against the person. There is undoubtedly a legislative gap here, due to the fact that a legal representative, as well as a defender, should be allowed to participate in the case not only from the moment the protocol is drawn up, but also from the application of measures to ensure the proceedings against the represented person, the initiation of proceedings on an administrative offense, as well as at any stage of the proceedings on the case of an administrative offense by analogy with part 3 of art. 748 of the Administrative Code.  

     Part 5. Legal representatives have the rights and perform the duties stipulated by the Administrative Code in relation to the persons they represent. On behalf of the person in respect of whom the proceedings are being conducted and the victim, their legal representatives carry out all procedural actions, the right to commit which belongs to the represented.

     Part 6. In the case of consideration of a case of an administrative offense committed by a person under the age of eighteen, the presence of a legal representative of the said person is mandatory. The presence of a legal representative of a minor during the consideration of a case provides more substantial protection of the rights and legitimate interests of the represented person.  

     If the legal representative of a minor who is being held administratively liable does not appear for consideration of the case for disrespectful reasons and clearly avoids appearing, then a summons may be applied to him in accordance with art. 790 of the Administrative Code. The drive is carried out by authorized officials of the internal affairs bodies (in this case, the district police inspector or the district police inspector for minors).

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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