Comment to article 747. Representatives of an individual entrepreneur or a legal entity The Code of the Republic of Kazakhstan on Administrative Offences
1. The protection of the rights and legitimate interests of a legal entity in respect of which proceedings are being conducted on an administrative offense or who is a victim is carried out by its representatives.
2. The legal representative of a legal entity is the head of the executive body of the legal entity, who acts on behalf of the legal entity. The powers of the legal representative of a legal entity are confirmed by documents certifying his official position.
Other persons representing the interests of a legal entity are representatives on behalf, whose powers are determined by a power of attorney issued on behalf of the legal entity by the executive body of the legal entity and signed by the head of the executive body.
3. Representatives of a legal entity in respect of which proceedings on an administrative offense are being conducted and the victim have the rights and duties provided for by this Code in respect of the persons they represent.
4. The case of an administrative offense is considered with the participation of a representative of the legal entity in respect of which proceedings on the case of an administrative offense are being conducted. In the absence of the said person, the case may be considered only in cases where there is evidence that he has been duly notified of the place and time of the case, unless a motion has been received from him to postpone the case.
5. When considering a case of an administrative offense, the commission of which entails an administrative penalty in the form of confiscation of an object that was the instrument or object of an administrative offense, or confiscation of income (dividends), money and securities received as a result of an administrative offense, the presence of a representative of a legal entity brought to administrative responsibility is mandatory.
6. If a representative of a legal entity refuses to appear at the summons of the judge, body (official) in charge of the case, the said person may be brought by the internal affairs bodies (police), the anti-corruption service and the economic investigation service based on the determination of the judge, body (official) in charge of the case.
7. Representatives of an individual entrepreneur have the same procedural rights and obligations as representatives of a legal entity within the limits provided for by this Code.
Part 1. In accordance with the norms of the administrative legislation of the Republic of Kazakhstan, legal entities in the administrative process may be the subjects of offenses or victims. When considering an administrative case, the rights and legitimate interests of a legal entity are protected by its representatives.
In accordance with Article 37 of the Civil Code of the Republic of Kazakhstan, a legal entity acquires civil rights and assumes responsibilities only through its bodies acting in accordance with legislative acts and constituent documents.
In the theory of civil law, the body of a legal entity is understood as a person or a set of persons authorized in accordance with the law, other legal acts or constituent documents to manage the activities of a legal entity. The composition, the procedure for the formation of bodies, as well as the distribution of competence between them depend on the organizational and legal form of the legal entity and are determined by the law and the constituent documents of the legal entity.
As a general rule, a legal entity has at least two bodies: the body uniting (representing) the founders (participants) of the legal entity, as well as the executive body. The task of the supreme governing body is limited to shaping the will of the legal entity on the fundamental issues of the legal entity's activities that fall within the competence of such a body. The executive body (director, management board, etc.) is called upon to implement the will of the legal entity, expressed in the decisions of the founders (participants), when conducting the current affairs of the legal entity (organizing production, making transactions, representation in court, etc.).
Part 2. The legal representative of a legal entity is an individual who, by virtue of his official position and existing legal relations with the legal entity, is legally entitled to protect the rights and legitimate interests of legal entities. The legal representation of legal entities is based on documents certifying the official position of the legal representative. He is the head of the executive body of the legal entity.
Other persons may be representatives of a legal entity only on the basis of a power of attorney issued on behalf of the legal entity by an executive body signed by the head of that body and stamped by the legal entity.
Part 3. The scope of powers of a representative of a legal entity is equal to the scope of powers of the person in respect of whom proceedings on an administrative offense are being conducted and the victim.
Part 4. The presence of a representative of a legal entity during the consideration of a case on an administrative offense committed by this person is recognized as mandatory. Such a review makes it possible to clarify all the circumstances of the case more precisely and to perform all necessary procedural actions for the representative on behalf of the represented legal entity. However, the provisions of this article allow the consideration of a case against a legal entity without the presence of its representative, if there is evidence that the representative was properly notified of the place and time of the case, if he did not receive a request to postpone the case.
Part 5 of the Administrative Code also provides for a number of administrative offenses, cases of which are considered only in the presence of a representative of a legal entity. In this case, we are talking about those administrative offenses, the commission of which entails the application of an administrative penalty to a legal entity in the form of confiscation of an object that was an instrument or object of an administrative offense, as well as confiscation of income (dividends), money and securities received as a result of an administrative offense.
Part 6. If a representative of a legal entity evades appearing in court or in the body considering an administrative offense case, and it is impossible to consider the case in his absence, then a summons may be applied to him. The drive is carried out by authorized officials of the internal affairs bodies and the financial police.
Part 7. In accordance with the Entrepreneurial Code of the Republic of Kazakhstan dated October 29, 2015, an individual entrepreneur and a legal entity are now business entities, depending on the average annual number of employees and average annual income, which are divided into categories of small, medium or large businesses. The Entrepreneurial Code of the Republic of Kazakhstan can be said to have equated the status status of an individual entrepreneur and a legal entity. Such changes in the field of business activity could not but affect the administrative and tort legislation. In this regard, Part 7 of the commented article states that representatives of an individual entrepreneur have the same procedural rights and obligations as representatives of a legal entity within the limits provided for by the Administrative 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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