Comment to article 844. Inconsistency of the administrative penalty imposed by the decree with the nature of the offense committed, the identity of the perpetrator, or the financial status of the legal entity The Code of the Republic of Kazakhstan on Administrative Offences
1. Having recognized the administrative penalty imposed by the resolution as unfair due to its excessive severity, inconsistent with the nature of the offense committed, the identity of the perpetrator or the property status of the legal entity, the judge mitigates the penalty, guided by the general rules for imposing administrative penalties.
2. A judge may impose a more severe penalty on the guilty person than was determined by the decision in the case of an administrative offense, but only if a complaint has been filed or an appeal has been filed by the prosecutor.
Part 1. In accordance with Part 2 of Article 55 of the Administrative Code, an administrative penalty must be fair, appropriate to the nature of the offense, the circumstances of its commission, and the identity of the offender.
It is well known that due to the transition in the new Administrative Code to fixed amounts of fines, the imposition of penalties below the lowest limit of the sanction provided for in the relevant article of the Special Part of the Administrative Code is not allowed.
At the same time, in accordance with the norms of the Administrative Code (Part 2 of Article 819 of the Administrative Code), as explained by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 12 "On certain issues of application by courts of the norms of the General Part of the Code of Administrative Offenses of the Republic of Kazakhstan", when circumstances are established, in accordance with Article 56 of the Administrative Code, mitigating the responsibility of an individual, the judge has the right to reduce the amount of the administrative fine imposed, but not more than thirty percent of the total amount of the fine. This is directly stipulated by the Administrative Code itself.
Guided by the general rules for imposing an administrative penalty, the judge mitigates the penalty by recognizing the administrative penalty imposed by the decree as unfair due to its excessive severity, inconsistent with the nature of the offense committed, the identity of the perpetrator or the property status of the legal entity.
Accordingly, when imposing an administrative penalty on an individual, the nature of the administrative offense committed, the identity of the perpetrator, including his behavior before and after the offense, property status, circumstances mitigating and aggravating liability are taken into account. This approach contributes to the personification of administrative responsibility, bringing it closer to the offender, and justice. And in this sense, the imposed penalty will more fully achieve its goal.
Part 2. The judge may impose a more severe penalty on the guilty person than was determined by the decision in the case of an administrative offense, but only if a complaint has been filed or an appeal has been filed by the prosecutor.
The commentary to this provision was previously given in Articles 842, 829-14 of the Administrative Code, etc.
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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