Comment to article 770. Providing evidence The Code of the Republic of Kazakhstan on Administrative Offences
1. The parties who have reason to fear that the presentation of the evidence necessary for them will become impossible or difficult may request the judge, the body (official) considering the case of an administrative offense to provide this evidence.
2. The provision of evidence is carried out by requiring organizations, regardless of their participation in the case, to submit documents, information and conclusions, conduct an expert examination, on-site inspection and by other means.
Part 1. The institution of evidence assurance is one of the ways to implement the right in evidentiary activities.
The provision of evidence should be understood as the prompt consolidation of factual data in accordance with the procedure established by law, performed by a judge, an authority (official) considering an administrative offense case in order to use them as evidence.
The conditions for providing evidence are:
- the petition of the parties who have the right to file a petition for securing evidence;
- compliance with the procedure provided for by law for the application for securing evidence;
- the relevance and admissibility of evidence that must be provided;
- the existence of grounds to believe the occurrence of circumstances in which the presentation of the necessary evidence will become impossible or difficult.
The following participants in the administrative process have the right to apply for evidence: the person against whom proceedings are being conducted on an administrative offense (Article 744 of the Administrative Code), the victim (Article 745 of the Administrative Code), the legal representatives of an individual (Article 746 of the Administrative Code), representatives of a legal entity (Article 747 of the Administrative Code), the defender (art. 748 of the Administrative Code), the victim's representative (Article 753 of the Administrative Code).
The procedure for submitting an application for securing evidence by the parties to the process is regulated by art. 771 of the Administrative Code.
Relevance means that there is an objective relationship between the information contained in the source of evidence and the facts, the presence and absence of which must be established during the trial.
Permissibility means obtaining factual data in ways prescribed by law.
According to the current administrative legislation, a judge, body (official) provides evidence by:
1) requesting documents, information and conclusions;
2) appointment of a forensic examination;
3) Production inspection;
4) in other ways.
By other means of providing evidence, one should mean the production of other procedural actions provided for by the Administrative Code.
For example, a survey of participants in the administrative process. However, the procedure for conducting a survey is not regulated by any norm of the Administrative Code.
Part 2. Evidence is provided by a judge according to the rules established by the Administrative Code.
Thus, the procedure for requesting documents is regulated by Article 779 of the Administrative Code, information by Article 780 of the Administrative Code, conclusions by Article 772 of the Administrative Code, the procedure for appointing a forensic examination is regulated by Articles 772, 774, 775 of the Administrative Code, and inspection by Articles 793, 794 of the Administrative Code. Some of these methods of providing evidence may be combined.
For example, certain evidence may be requested and immediately examined by a court, and, if necessary, a judicial examination may be ordered.
Due to the lack of necessary procedural rules, judges often use the analogy of the law when considering cases of administrative offenses. It is applied when there is no rule of law governing the specific case in question, but there is another rule in the legislation governing similar relations with it.
Applying the analogy of the law, when considering cases of administrative offenses, judges are guided by the Constitution, the Constitutional Law of the Republic of Kazakhstan dated December 25, 2000 "On the Judicial System and the Status of Judges", the Administrative Code, the Law of the Republic of Kazakhstan dated April 6, 2016 "On Legal Acts" and other laws adopted in accordance with them.
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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