Comment to article 769. Grounds for exemption from evidence The Code of the Republic of Kazakhstan on Administrative Offences
1. The circumstances recognized by the court, the body (official) authorized to consider an administrative offense, generally known, do not need to be proved.
2. The circumstances established by a court decision in a civil case that has entered into force or by a judge's decision in another administrative offense case do not need to be proved when considering other administrative offense cases involving the same persons.
3. The following circumstances are considered to be established without evidence, unless otherwise established within the framework of due process of law:
1) the correctness of research methods generally accepted in modern science, technology, art, and craft;
2) knowledge of the law by a person;
3) the person's knowledge of their official and professional duties;
4) the absence of special training or education from a person who has not submitted a document confirming their availability and has not indicated the educational institution or other institution where he received special training or education.
According to paragraph 1 of this article, circumstances recognized by the court as generally known do not need to be proved. This means that the well-known fact is due to limitations in time, space and in the circle of people.
Time constraints are associated with the natural property of human memory to forget events, their details and chronology.
The limited space is due to the fact that circumstances can have both global and regional jurisdiction, and only a specific court can determine for specific circumstances their general knowledge in a certain territory.
Well-known people are also associated with a certain circle of people. For example, specialists in a certain field of activity know the facts based on their daily practical activities. That is, it is necessary to consider as generally known those circumstances that are known by all or the preferred majority of citizens at least in the territory of a certain administrative-territorial unit.
Well-known facts are divided into world-famous (for example, the date of the Chernobyl accident - April 26, 1986); known on the territory of the Republic of Kazakhstan (for example, the date when the Republic of Kazakhstan acquired sovereignty - December 16, 1991); locally known, i.e. in a limited area.
A note should be made in the court decision about the well-known facts in the relevant territory. Such a note is necessary in case of revision of decisions that have entered into force and have not entered into force. The facts generally known in the world or on the territory of the Republic of Kazakhstan are not indicated in the court decision due to the fact that in the event of a review of the decisions, this information is public throughout the world or on the territory of the Republic of Kazakhstan.
The use of well—known facts in proving is closely related to the properties possessed by the facts under investigation, such as evidence — scientific evidence - the absence of doubt about the truth. Compliance with these properties guarantees the reliability of the use of any well-known fact in the system of procedural evidence.
The evidence and universal acceptance of a well-known fact is expressed in the degree of fame and scientific evidence of such a fact. Evidence means the ability to observe or experience vital phenomena (for example, the skin's ability to feel heat, cold, etc.).
Universal acceptance is associated with scientific evidence and, in turn, as the absence of doubt about the truth. There is no need for special proof, for example, the identity of fingerprints. For those who carry out procedural proof, this fact is obvious, scientifically justified and beyond any doubt of its truth.
The property of universal recognition of a fact is determined by the circle of persons, which includes those who produce evidence, participants in the process.
The circumstances specified in paragraph 2 of this Article are of a prejudicial nature. Prejudice literally means prejudice. Prejudice should be understood as the obligation of conclusions about facts established by a court decision that has entered into force for all other judicial and non-judicial bodies, as well as public organizations, to know these facts. In other words, prejudicial facts are facts established by a decision that has entered into force in an administrative or civil case and are not subject to re-proof.
The basis of the prejudice of facts is the legal force of the court decision. The administrative court, proving the facts newly established in these acts, is limited to requesting a copy of the relevant court decision, and the parties are not required to re-prove the prejudicial facts. The principle of the general obligation of a court decision in this norm is specified.
The circumstances established by a court decision in a civil or administrative case are formally indicated in the text of the court decision by the word "established" and the circumstances that the court takes as the basis for making the decision are listed.
It should be noted that prejudice occurs when the same persons or their representatives are involved in both cases. If a court decision affects the interests of persons who are not involved in the case by the administrative court, then prejudice cannot apply to such persons.
Part 3. Along with the above-mentioned circumstances, the Administrative Code regulates the so-called indisputable circumstances, that is, those that do not require their establishment with the help of evidence. These circumstances are fixed in Part 3 of this article. The existence of such circumstances saves time for the court, the body (official) in charge of the administrative offense case, and focuses their activities only by establishing the circumstances of the subject of proof.
The norm of subclause 1) of Part 3 of Article 769 of the Administrative Code establishes the correctness of research methods generally accepted in modern science, technology, art, and craft;
In each sphere of human activity, only its inherent theoretical and practical methods (a set of approaches, techniques, and methods) of investigating objective reality and obtaining knowledge are used, which have been developed over the years and do not cause doubts about their correctness. For example, in any science, universal (universal), general scientific (applied at certain stages of scientific cognition) and private scientific (applied within the framework of this science only or borrowed from other sciences) methods of cognition of objective reality have long been used.
The norm of paragraph 2) of Part 3 of Article 769 of the Administrative Code contains the constitutional requirement that everyone must comply with the Constitution and legislation of the Republic of Kazakhstan, respect the rights, freedoms, honor and dignity of others (Article 34 of the Constitution). This requirement applies not only to citizens of the Republic of Kazakhstan, but also to stateless persons and foreigners residing in the country.
The norm of subclause 3) of Part 3 of Article 769 of the Administrative Code does not require proof of a certain person's knowledge of his official and professional duties, which are provided for in the content of his employment contract with the employer. By virtue of the requirements of Article 28 of the Labor Code of the Republic of Kazakhstan dated November 23, 2015, the employment contract between an employer and an employee is required to specify work in a specific specialty, profession, qualification or position (labor function).
The norm of paragraph 4) of Part 3 of Article 769 of the Administrative Code recognizes the existence of special training or education for a participant in the administrative process who has not submitted a document to confirm and has not indicated the educational institution or other institution where he received special training or education.
The Constitution of the Republic of Kazakhstan (art.30) and the State guarantee free secondary education in public educational institutions. Accordingly, every citizen of the Republic of Kazakhstan has secondary education (grades 11), and in accordance with the Law of the Republic of Kazakhstan dated July 27, 2007 "On Education" (paragraph 1 of Article 39) and the Order of the Minister of Education and Science of the Republic of Kazakhstan dated January 28, 2015 No. 39 "On approval of types and forms of state education documents samples and the Rules for their issuance", has a certificate, a certificate, a diploma confirming this fact.
Also, one of the criteria for recognizing the fact that a participant in the administrative process has special knowledge and appropriate education is his place of work. For example, an expert working at the Center for Forensic Examination of the Ministry of Justice is a practicing physician of a certain specialization.
As for the availability of specialized knowledge for a person whose main activity is not related to special knowledge, their availability must be confirmed by an appropriate document, for example, a certificate of completion of courses of the appropriate sample and (or) the presence of a registration number.
An analysis of the norms of part 3 of the article under consideration has shown that if the facts of misuse of research methods generally accepted in modern science, technology, art, and craft are established, there is a real lack of special training or education for a person who has not submitted a document confirming their availability and has not indicated the educational institution or other institution where he received special training or education If the participants in the administrative process have grounds for bringing them to administrative or criminal responsibility.
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
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
