Comment to article 868. Compensation for damage to legal entities The Code of the Republic of Kazakhstan on Administrative Offences
The damage caused to legal entities by illegal actions of the body (official) authorized to consider cases of administrative offenses is subject to restoration by the state in full and within the time limits established by this chapter.
The commented article allows a legal entity, if it has been harmed by illegal actions of an authority (official) authorized to consider cases of administrative offenses, the right to compensation for damage in full, at the expense of the state, within the time limits established by Chapter 48 of the Administrative Code.
Previously, scientists in both the field of civil and criminal procedure law were skeptical about the very possibility of compensation for harm to legal entities. However, the updated administrative legislation of the Republic of Kazakhstan has preserved such an opportunity for a legal entity.
A legal entity is subject to administrative liability for an administrative offense in cases stipulated by the Special Part of the Administrative Code. A legal entity may be held administratively liable for an administrative offense if the act provided for in the Special Part was committed, authorized, or approved by the body or person performing the management functions of the legal entity.
Thus, in accordance with the current legislation, legal entities may be held administratively liable. However, legal entities, like individuals, are not protected from unlawful administrative prosecution by authorities (officials). Having analyzed Chapter 48 of the Administrative Code, we can come to the following conclusion: a legal entity cannot be rehabilitated, it can only be compensated for the damage caused by illegal actions of the body authorized to consider cases of administrative offenses. This is also stated in the title of the article under study, "Compensation for harm to legal entities."
The damage to the legal entity will be compensated if the actions of the body (official) were found to be illegal. What is the procedure for recognizing the actions of the body as illegal, and which actions are considered illegal, is not clearly defined in the Administrative Code.
The current legislation of the Republic of Kazakhstan contains norms providing for the right to appeal decisions, actions of state bodies and officials taken in the exercise of their functional duties to the court.
Chapter 29 of the Civil Procedure Code of the Republic of Kazakhstan regulates the procedure for considering applications for challenging decisions and actions (inaction) of state authorities, local governments, public associations, organizations, officials and civil servants.
According to the rules of Chapter 29 of the CPC RK, applications for appealing the actions of the body conducting administrative proceedings are not subject to consideration, as well as decisions of state bodies that are subject to court review in accordance with the procedure established by the CPC and the Administrative Code.
For example, based on the results of an investigation into violations of legislation in the field of competition protection, an official of the antimonopoly authority prepares an opinion, on the basis of which the antimonopoly authority makes an appropriate decision: to terminate the investigation, initiate proceedings on administrative offenses, transfer materials to law enforcement agencies for criminal proceedings, etc. The approval of the conclusion is formalized in accordance with art. 224 of the Business Code of the Republic of Kazakhstan, by an order that can be appealed in court.
The antimonopoly authority has decided to initiate proceedings on administrative offenses. A protocol on an administrative offense against the subject under review has been drawn up. Accordingly, by virtue of the requirements of Article 65 of the Law of the Republic of Kazakhstan "On Legal Acts", the legal act, the order, ceased to be valid from the moment of fulfillment of its requirements by the persons to whom this legal act is addressed. Consequently, an application to challenge such an order is not subject to consideration in civil proceedings; the subject under review has the right to bring arguments of disagreement with the revealed violations of the law during the consideration of an administrative offense case initiated against him.
Based on the above, the actions of the body (official) authorized to consider cases of administrative offenses can be declared illegal in court when considering this case.
Let's take a closer look at what kind of harm can be caused to a legal entity by illegal actions of an authority (official) authorized to consider cases of administrative offenses. Harm in civil law is the diminution or destruction of a subjective civil right or good. According to the general rule of the civil code, harm can be property and non-property (moral).
Property damage caused to a legal entity may be expressed in the form of real damage (expenses of the legal entity, seizure or destruction of things and objects) and losses (lost profits) in connection with activities to bring the legal entity to administrative responsibility.
Harm is also caused as a result of the issuance of acts, various rights of legal entities may be infringed (ownership rights, other property rights, the right to engage in business, etc.). Compensation for harm in this case must occur according to general rules, that is, if there is fault of the harm-doer. For example, knowing about the illegality of seizing goods from a merchant, a representative of, say, a tax authority seizes it and subsequently damages the goods, thereby causing damage to the value of the goods.
Moral harm to a legal entity cannot be inflicted. Only the business reputation of a legal entity may be harmed. The protection of the business reputation of a legal entity is carried out in the same way as the protection of the business reputation of a citizen. And here the rules on compensation of losses are applied in accordance with the procedure established by the Civil Code.
Civil legislation does not provide for compensation for moral damage to a legal entity, and courts should refuse to accept claims from legal entities for compensation for moral damage. If the claim is accepted, the proceedings are subject to termination.
The damage caused to a legal entity must be restored from the funds of the state or local budgets, regardless of the fault of the official or body, since their illegal actions are related to the performance of official duties.
The procedure for making monetary payments and the deadlines for submitting claims for payments are regulated by art. 867 of the Administrative Code. According to the rules of this article, a legal entity, as well as a citizen, has a period of one year to file a claim for monetary payments for property damage, and six months from the date of receipt of a notice explaining the procedure for restoring rights to file a claim for the restoration of other rights.
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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