Comment to article 888. Postponement and installment plan of execution of the resolution on the imposition of an administrative penalty, instructions on the need to pay a fine of the Code of the Republic of Kazakhstan on Administrative Offenses
If there are circumstances that make it impossible to execute an order to pay a fine, an order to impose an administrative penalty in the form of administrative arrest, deprivation of a special right, or a fine (with the exception of collecting a fine at the place of commission of an administrative offense) within the time limits established by law, the judge, the body (official) that issued the decision, or the body that issued the order, may, at the request of the person in respect of whom the decision has been issued, an order has been issued, delay the execution of the decision, prescriptions for up to one month. Taking into account the financial situation of the person brought to administrative responsibility, the payment of a fine may be delayed by the judge, the body (official) who issued the decision, or the body that issued the order, for a period of up to three months.
Postponement of execution may be applied to:
- instructions on the need to pay a fine;
- resolutions on the imposition of administrative penalties in the form of administrative arrest;
- deprivation of a special right or fine (except for the collection of a fine at the place of commission of an administrative offense).
Postponement of the execution of an order on the need to pay a fine, an order on the imposition of an administrative penalty means the decision of the judge, the body (official) who issued the decision, or the body that issued the order, to postpone their execution to a later date. The execution of an order or resolution may be postponed for up to one month.
This measure, as well as the installment plan, is applied in order to comply with the principle of humanism, which should guide the law enforcement officer in the conduct of proceedings on an administrative offense. This principle assumes that an administrative penalty applied to a person who has committed an offense cannot be intended to cause physical suffering or humiliation of human dignity.
A postponement is submitted at the request of the person against whom the decision has been issued, an order has been issued, if there are circumstances that make it impossible to execute them within the time limits established by law.
The fine must be paid by the person brought to administrative responsibility no later than 30 days from the date of entry into force of the decision on the imposition of a fine, the instruction on the need to pay the fine.
In case of postponement provided for in Article 888 of the Administrative Code, the fine is payable by the person brought to administrative responsibility from the date of expiration of the deferral period. According to the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No. 7 "On certain issues of application by courts of the norms of the Special Part of the Code of Administrative Offences of the Republic of Kazakhstan", in case of non-payment of the imposed fine after thirty days from the date of entry into force of the decision on the imposition of a fine, the order on the need to pay the fine into legal force or after the expiration of the deferral period provided for in Article 888 of the Administrative Code, such a person is liable under Article 669 of the Administrative Code, regardless of whether the resolution is enforced.
According to Part 4 of Article 884 of the Administrative Code, a decision to impose an administrative penalty in the form of deprivation of a special right and administrative arrest is subject to execution from the moment it is issued.
The legislator does not define the circumstances that make the execution of an order on the need to pay a fine, a decision on the imposition of an administrative penalty in the form of administrative arrest, deprivation of a special right or a fine (except for the collection of a fine at the place of commission of an administrative offense) impossible within the time limits established by law. At the same time, to resolve this issue, it seems advisable to use the provisions of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated March 31, 2017 No. 1 "On the application by courts of certain norms of legislation on enforcement proceedings". According to paragraph 23 of this resolution: "The debtor's property status as the basis for granting him a deferral or installment payment means that the debtor cannot voluntarily or forcibly fulfill the obligation in full at one time by selling his property provided for in Articles 20 and 44 of the Civil Code.
The grounds for granting a deferral or an installment plan for the execution of an enforcement document may be circumstances that cannot be eliminated at the time of applying to the court, preventing the debtor from executing the enforcement document. Whether there are such grounds is up to the court to decide on a case-by-case basis, taking into account all relevant factual circumstances. These may include the debtor's difficult financial situation, as well as reasons that significantly impede execution (for example, the debtor's serious illness, destruction or significant damage (through no fault of the debtor) to his real estate, etc.). The court must assess the possibility of executing the court's decision after the expiration of the deferral period or installment periods. Therefore, the court must be provided with evidence confirming that by the time the deferral of execution or installment periods ends, the debtor will have property and income sufficient to execute the judicial act."
For example, by a decision of the Zhelezinsky District Court, K. was found guilty of committing an administrative offense under Part 6 of Article 608 of the Administrative Code with the imposition of administrative arrest for a period of 20 days.
After the announcement of the decision, K. applied to the court for a delay in the execution of the administrative penalty in the form of arrest, arguing that he was caring for his mother, who was a disabled person of the second group, confined to a wheelchair and in need of daily care. There's no one else to take care of his mother.
By a court order, citizen K. was granted a delay for the execution of the administrative arrest order for a period of 1 month.
The issue of postponement is considered within three days from the date of filing the application by the person in respect of whom the decision was issued, the order was issued. The issue is resolved in the form of a resolution. The resolution on granting a deferral must specify the calendar date before which the deferral was granted.
Installment payment may be applied in relation to an order on the need to pay a fine, an order on the imposition of an administrative penalty in the form of a fine.
An installment plan for the execution of an order on the need to pay a fine, an order on the imposition of an administrative penalty in the form of a fine means a decision to pay the fine in installments within the prescribed period.
The execution of an order or resolution may be delayed by installments for up to three months. When calculating the time limit, the hour and day on which the time limit begins are not taken into account. It includes non-working hours. When calculating the term in months, the term expires on the corresponding day of the last month, and if this month does not have a corresponding date, the term ends on the last day of this month. If the end of the term falls on a non-working day (weekend, holiday), then the last day of the term is considered to be the first working day following it.
The basis for the installment payment is the financial situation of the person brought to administrative responsibility, which does not allow him to pay the fine in a lump sum in full.
The decision on the payment of a fine in installments may be made by a judge, the body (official) that issued the decision, or the body that issued the order. The decision taken on the issue of postponement is formalized in the form of a resolution.
Thus, by a court decision, citizen P. was found guilty under Article 383, Part 3 of the Administrative Code and subjected to an administrative penalty in the form of an administrative fine of 20 MCI, in the amount of 39,640 tenge, with the destruction of physical evidence.
Due to his financial situation and the presence of three minor children, gr. P. requested that the execution of the resolution be delayed.
By the resolution of 26.05.2015, the application of gr. P. is satisfied and the execution of the resolution is scheduled for 3 months.
Paragraph 23 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated March 31, 2017 No. 1 "On the application by courts of certain norms of legislation on enforcement proceedings" mentions that if the circumstances by virtue of which a person was granted a deferral or an installment plan have changed or disappeared before the expiration of the granted period, or the debtor violates the established procedure for granting a deferral or an installment plan execution (terms, amounts of payments, volume of actions performed), Upon the application of the parties to the enforcement proceedings, the court may decide on the termination of the postponement or installment of the execution of the judicial act.
The court's consideration of an application for termination of a deferral or an installment plan is carried out in the same manner as when it was submitted.
In case of postponement of execution of the resolution in accordance with art. 888 of the Administrative Code, the limitation period is suspended until the expiration of the deferral period, and in case of installment execution of the resolution, the limitation period is extended by the installment period.
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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