Comment to article 766. Circumstances to be proved in the case of an administrative offense The Code of the Republic of Kazakhstan on Administrative Offences
In the case of an administrative offense, they are subject to proof.:
1) the event and the elements of an administrative offense provided for by this Code;
2) a person who has committed an unlawful act (action or omission) for which this Code provides for administrative liability;
3) the guilt of an individual in committing an administrative offense;
4) circumstances mitigating or aggravating administrative liability;
5) the nature and amount of damage caused by an administrative offense;
6) circumstances leading to exemption from administrative responsibility;
7) the reasons and conditions that contributed to the commission of an administrative offense, as well as other circumstances relevant to the proper resolution of the case.
The commented article defines the circumstances to be clarified when considering an administrative offense case, which are necessary and sufficient for the proper resolution of the case. In the theory of administrative law, it is called the subject of proof.
The system of circumstances determined by the legislator, which must be proved in the case of an administrative offense, is set out in the logical sequence of their resolution.
The process of exercising administrative responsibility begins with clarifying the question: whether an administrative offense has been committed, that is, the actual basis of administrative responsibility is established - the presence or absence of an administrative offense event. Answering the question whether an administrative offense has been committed, it is necessary to establish the signs of an administrative offense.
From the definition of an administrative offense given in art. 25 of the Administrative Code, the following signs can be distinguished.
1) illegality of an action (inaction). Illegality should be understood as an action (inaction) that is not based on the law and violates the norms of legislation governing certain relations.
2) the culpable act (inaction) of an individual. Guilt implies guilt. Guilt is the conscious and volitional attitude of the subject of the offense towards the committed act and its consequences in the form of intent or negligence (Articles 26, 27 of the Administrative Code).
3) the subject of the offense. The subject of an administrative offense is an individual or a legal entity (Article 28 of the Administrative Code). In practice, it remains difficult to establish the guilt of a legal entity in committing an administrative offense and the problem of distinguishing responsibility between a legal entity and the excess of an individual.
When resolving this issue, it is necessary to take into account a number of circumstances (how correctly, in accordance with the law, the activities of a legal entity are organized; whether the legal entity has taken the necessary measures to properly fulfill the duties assigned to it, for non-fulfillment of which administrative responsibility is provided; whether it has made the necessary efforts to prevent an administrative offense and eliminate its causes), etc.
Bringing a legal entity to administrative responsibility is carried out through an act (action or omission) committed, authorized, approved by an authority, a person performing the management functions of a legal entity, or an employee of a legal entity performing organizational, administrative, or economic functions.;
4) the punishability of an act means that administrative responsibility is established by law for the commission of an act (inaction) of an individual or a legal entity.
An act containing the listed signs may be recognized as an administrative offense if there are elements of an administrative offense.
The composition of an administrative offense is a set of signs, in the presence of which a specific act becomes an administrative offense. For a more complete description, see the commentary to the General Part of the Administrative Code.
The composition of the administrative offense is as follows:
1) The object of an administrative offense is public relations protected by measures of administrative responsibility, which are harmed by an unlawful act.
2) The objective side of an administrative offense is a set of features that characterize the external manifestation of this offense.
3) The subject of an administrative offense is an individual or a legal entity.
4) The subjective side of an administrative offense is the subject's mental attitude to an unlawful act or omission and its consequences.
The second circumstance to be clarified in the case of an administrative offense is related to the person who committed the illegal act, which must be reliably established (art. 28 of the Administrative Code).
Common subjects of offense are any sane persons who have reached the age of 16.
Special subjects of offense are officials, minors, drivers of vehicles, military personnel, persons with special ranks and other persons.
It is also necessary to find out the social status of the latter, whether he is subject to administrative responsibility as an official; whether he is a soldier or a person subject to disciplinary regulations for committing an administrative offense; whether he is a member of Parliament, judge or Prosecutor General, etc.
This is due to the fact that the personality of a member of Parliament is inviolable. He may not be subjected to a court-ordered administrative penalty without the consent of the relevant chamber of the Parliament of the Republic of Kazakhstan.
A judge may not be arrested, brought before a court, or subjected to administrative penalties without the consent of the President of the Republic of Kazakhstan based on the opinion of the Supreme Judicial Council of the Republic, and in respect of the Chairman and judges of the Supreme Court of the Republic - without the consent of the Senate of the Parliament of the Republic of Kazakhstan.
The next circumstance to be proved is the guilt of an individual in committing an administrative offense. The guilt of a person is the main feature of the subjective side of an administrative offense. If no fault has been established in the actions of a person, and the harmful consequences were the result of a combination of circumstances, it means that there is no guilt, there is no subjective side, there is no administrative offense, and there can be no responsibility. Guilt encompasses two possible forms of mental state: intent and negligence (Articles 26, 27 of the Administrative Code) The next circumstance to be proved is the guilt of an individual in committing an administrative offense. Thet of a person is the main feature of the subjective side of an administrative offense. If no fault has been established in the actions of a person, and the harmful consequences were the result of a combination of circumstances, it means that there is no guilt, there is no subjective side, there is no administrative offense, and there can be no responsibility. Guilt encompasses two possible forms of mental state: intent and negligence (Articles 26, 27 of the Administrative Code). Only intentional or careless attitude towards one's unlawful behavior is condemned by the State. Only in these two forms does wine exist.
Further, the subject of proof includes circumstances mitigating and aggravating liability. In the Code, they are formulated in articles 56 and 57 of the Administrative Code. The establishment of these circumstances is necessary for the individualization of responsibility, the imposition of penalties within the scope of the sanction of the article.
Mitigating circumstancetigating circumstances indicate that the offense and the offender are relatively less socially harmful, reduce the degree of responsibility of the latter, and provide grounds for mitigation of penalties. Aggravating circumstances increase the social harmfulness of the offense and the offender, increase the degree of his responsibility.
It should be borne in mind that the list of circumstances mitigating liability is established in such a way that it is subject to broad interpretation, i.e. it remains open.
A judge, body (official) considering a case of an administrative offense may also recognize circumstances not specified in the law as mitigating. It must be remembered that only those circumstances that are not included in the administrative offense can be aggravating. If they are part of the qualifying circumstances of the offense or form an independent part of the offense, then they cannot be considered as aggravating circumstances. For example, part 7 of art. 608 of the Administrative Code provides for responsibility for driving vehicles by drivers who are intoxicated, etc., committed repeatedly. In this case, "repetition" is included in the offense as an element of the objective side, therefore, the sign of "repetition" here cannot be considered as an aggravating circumstance.
An administrative offense may be accompanied by causing property damage to an individual or a legal entity. Such damage, in accordance with Article 59 of the Code, is subject to An administrative offense may be accompanied by causing property damage to an individual or a legal entity. Such damage, in accordance with Article 59 of the Code, is subject to mandatory compensation. Compensation for property damage is one of the ways to protect civil rights. But in order for the damage to be compensated, the fact of the damage must be proved, its size established, to whom it was caused, and the causal relationship between the administrative offense and property damage established.
An administrative offense may be accompanied by causing property damage to an individual or a legal entity. Such damage, in accordance with Article 59 of the Code, is subject to mandatory compensation. Compensation for property damage is one of the ways to protect civil rights. But in order for the damage to be compensated, the fact of the damage must be proved, its size established, to whom it was caused, and the causal relationship between the administrative offense and property damage established.
In the vast majority of cases, the composition of administrative offenses is formal, they do not contain such a feature as causing damage by the offender. Nevertheless, material damage is a qualifying feature of some administrative offenses (for example: part 2 of art. 615 of the Administrative Code). Also, the amount of damage caused determines the application of either administrative or criminal liability. For example, violation of the rules of hunting, fishing and protection of fish stocks, violation of traffic rules, etc. Depending on the damage caused, they are classified as a criminally punishable act or an administrative offense.
When clarifying the issue of the occurrence of an administrative offense and the responsibility of a person for its commission, competent persons should clarify the circumstances leading to exemption from administrative responsibility (Chapter 8 of the Administrative Code). These circumstances include:
1) expiration of the limitation period. The limitation period for bringing a person to administrative responsibility is understood as the period of time calculated from the date of commission or the day of detection of an administrative offense, and until the date of entry into force of the resolution on bringing a person to administrative responsibility. The legislator provided for a general limitation period for bringing a person to administrative responsibility – 2 months, however, the legislator provides for cases of calculating longer periods (art. 62 of the Administrative Code);
2) the act of amnesty (art. 63 of the Administrative Code). An amnesty is a regulatory legal act that is adopted by the Parliament of the Republic of Kazakhstan in relation to an individually unspecified group of persons designated in the act, which has retroactive effect. If an amnesty act is issued, the following legal consequences will occur::
a) proceedings on an administrative offense cannot be initiated (art. 741 of the Administrative Code);
b) the proceedings initiated in the case of an administrative offense are terminated (art. 741 of the Administrative Code);
c) the execution of the decision on the imposition of an administrative penalty is terminated (Article 889 of the Administrative Code);
3) reconciliation of the parties. In accordance with this provision of the law, cases of administrative offenses are subject to termination upon reconciliation of the parties only upon the application of the victim and for certain types of administrative offenses: articles 73, 73-1, 73-2, 79 (part one), 146, 185, 186, 220, 229 Administrative Code (Article 64 of the Administrative Code).
For persons who have committed administrative offenses provided for in Articles 73, 73-1 or 73-2 of the Administrative Code for the first time, reconciliation may not entail the expected consequences, since part 1-1 of Article 64 refers this issue to the discretion of the court.
It is important to identify the causes and conditions that contribute to the commission of administrative offenses. According to Article 23 of the Law of the Republic of Kazakhstan dated April 29, 2010 "On the Prevention of offenses", making a presentation on the elimination of the causes and conditions conducive to the commission of offenses is one of the measures to prevent offenses. This is due to the fact that, having found out the causes and conditions conducive to the commission of an administrative offense, the competent person conducting proceedings on an administrative offense has the opportunity to promptly take measures to eliminate these negative phenomena and prevent the recurrence of similar offenses.
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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