Comment to article 809. Termination of proceedings on an administrative offense case before the transfer of the case for consideration The Code of the Republic of Kazakhstan on Administrative Offences
In the presence of at least one of the circumstances provided for in Articles 741 and 742 of this Code, the official in charge of the case shall issue a resolution on the termination of proceedings in the case of an administrative offense.
The commented article establishes the legislative possibility to terminate the case of an administrative offense before transferring it to the court, body (official), that is, at an intermediate stage after the initiation of the case, but without transferring it to the stage of consideration of the case. That is, a person in whose proceedings, at the current time, a decision is being made as a result of the establishment of new circumstances of the case, excluding the proceedings (art. 741 and 742 of the Administrative Code), should terminate the proceedings on an administrative offense case, without sending it to the authority (official) and even more so to the court for consideration, and on the merits, termination. Anything else should be considered as a gross violation of the law.
In addition to procedural economy, this approach also contributes to a more complete realization of the constitutional right of citizens to protection, since a person should not be subjected to administrative prosecution if the law explicitly prescribes that his case cannot be initiated, and the initiated case is subject to termination, that is, it excludes proceedings.
This article contains reference rules to Articles 741 (Circumstances precluding proceedings on an administrative offense) and 742 (Circumstances precluding administrative liability) of the Administrative Code. If there is at least one of the circumstances provided for in these articles, an administrative offense case should not be initiated, and the initiated case should be terminated.
In accordance with Part 1 of Article 741, such circumstances include:
1) the absence of an administrative offense event, that is, the non-occurrence of an offense event during the verification activities;
2) the absence of the composition of an administrative offense, in cases where there is at least one element of the composition of an administrative offense, including the failure of an individual at the time of the commission of an unlawful act (inaction) to reach the age provided for in the Administrative Code for bringing to administrative responsibility, or the insanity of an individual who committed unlawful acts (inaction);
3) repeal of the law or its individual provisions establishing administrative responsibility, in accordance with Part 2 of Article 46 of the Law of the Republic of Kazakhstan "On Legal Acts", the normative legal act (its part or parts) terminates in the following cases:: 1) the expiration of the period for which the act (its part or parts) was adopted; 2) the adoption of a new normative legal act, which contradicts the provisions of a previously issued normative legal act, its part (part) or which absorbs the previously issued act or its part (parts); 3) recognition of the adopted act as unconstitutional in accordance with the procedure established by the Constitution of the Republic of Kazakhstan; 4) recognition of the act or its part (parts) as invalid by the body that adopted this act or another authorized body.;
4) if the law or its individual provisions establishing administrative responsibility, or other normative legal act subject to application in this case of an administrative offense, on which the qualification of the act as an administrative offense depends, is recognized by the Constitutional Council of the Republic of Kazakhstan as unconstitutional, in accordance with Part 2 of art. 39 of the Constitutional Law of the Republic of Kazakhstan "On the Constitutional Council of the Republic of Kazakhstan", laws and other legal acts recognized as unconstitutional, including infringing on human and civil rights and freedoms enshrined in the Constitution, lose their legal force, are not subject to application and are repealed. Decisions of courts and other law enforcement agencies based on such a law or other legal act are not subject to execution.;
5) expiration of the limitation period for administrative liability, according to the rule of art. 62 of the Administrative Code, after a two–month period, a person is not subject to administrative liability, and for committing an administrative offense in the field of the environment, as well as for violating the legislation of the Republic of Kazakhstan on rehabilitation and bankruptcy - after one year from the date of its commission;
6) the existence of a decision of a judge, body (official) on the imposition of an administrative penalty or an unturned decision on the termination of an administrative offense case, as well as the existence of a decision on the recognition of a person as a suspect on the same fact in relation to the person being brought to administrative responsibility. Article 12 of the Administrative Code establishes that no one can be repeatedly brought to administrative responsibility for the same offense. This provision is one of the principles of the legislation on administrative offences. Separately, it is necessary to consider the recognition of a person as a suspect, in accordance with Part 1 of Article 64, "A suspect is a person against whom a decision has been made to recognize him as a suspect...";
7) the death of an individual, the liquidation of a legal entity in respect of which proceedings are underway. The biological definition of human death is the cessation of vital activity of an organism and, as a result, the death of an individual as a separate living system, accompanied by the decomposition of proteins and other biopolymers, which are the main material substrate of life. The procedure for the liquidation of a legal entity is regulated by art. 50 of the Civil Code. In accordance with part 10 of this article, the liquidation of a legal entity is considered completed, and the legal entity has ceased its activities after entering information about it into the National Register of Business Identification Numbers.;
8) in case of technical errors in the software, confirmed by the authorized body responsible for ensuring tax receipts and other mandatory payments to the budget, which led to the failure of the taxpayer to fulfill the tax obligation to submit tax reporting forms in electronic form within the time period established by the legislation of the Republic of Kazakhstan.;
9) other cases stipulated by the tax legislation of the Republic of Kazakhstan;
10) the availability of a document confirming the payment of an administrative fine in accordance with the procedure established by art. 897 of the Administrative Code, this subparagraph refers to the termination of proceedings for executed proceedings, for fines imposed by state revenue authorities;
11) a person brought to administrative responsibility is recognized as a victim in a criminal case on a crime related to human trafficking in accordance with the procedure established by law. Crimes related to human trafficking are provided for in Article 128 of the Criminal Code. Recognition of a person as a victim in these cases is carried out on the basis of Article 71 of the CPC;
12) in connection with the reconciliation of the parties in accordance with the procedure provided for in Article 64 of the Administrative Code. Reconciliation of the parties under Article 64 is possible only for offenses provided for in Articles 73, 73-1, 73-2, 79 (Part one), 146, 185, 186, 220, 229 ( part two). Reconciliation is carried out on the basis of a written agreement signed by the victim and the person who committed the administrative offense.
Article 742 of the Administrative Code provides for the termination of an administrative offense case due to the presence of signs of a criminally punishable act. The authorized person in charge of the administrative offense case transmits all materials related to the offense to the prosecutor or the pre-trial body for further investigation within the framework of the CPC.
The termination of proceedings in the case of an administrative offense is carried out by issuing a resolution by an authorized person.
This resolution must meet the requirements stipulated in art. 822 of the Administrative Code. In relation to the case under consideration, the decision must contain information about the body, the official who issued the decision; the date and place of consideration of the case; information about the person in respect of whom the case was considered; the circumstances established during the consideration; the article of the Code providing for the grounds for termination of proceedings; a reasoned decision; the time and procedure for appealing the decision. The resolution should also address the issues of seized items and documents, as well as items that have been seized.
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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