Commentary on Article 33. Administrative Liability of Private Notaries, Private Bailiffs, Advocates, Individual Entrepreneurs and Legal Entities of the Code of the Republic of Kazakhstan on Administrative Offences

1. Private notaries, private bailiffs, advocates, individual entrepreneurs and legal entities shall be subject to administrative liability for an administrative offence in the cases provided for in the Special Part of this Section.

2. Individual entrepreneurs and legal entities shall be subject to administrative liability for an administrative offence if the act (action or omission) provided for in the Special Part of this Section was committed, sanctioned or approved by a body or person performing management functions in a legal entity, or by an employee of an individual entrepreneur or legal entity performing organisational and administrative or administrative and economic functions.

3. Structural subdivisions of a legal entity that have committed administrative offences and are independent taxpayers (with the exception of financial organisations) shall bear administrative liability as legal entities.

4. Bringing individual entrepreneurs and legal entities to administrative liability shall exempt an employee of an individual entrepreneur or legal entity from administrative liability for the given offence.

Note. For the purposes of this Code, individual entrepreneurs and legal entities shall bear administrative liability as business entities.

Part 1. This provision establishes the specific features of the administrative liability of a group of special subjects, which includes private notaries, private bailiffs, advocates, individual entrepreneurs and legal entities.

The condition for bringing these persons to liability must be the inclusion of a specific reference to these persons in the sanction of the relevant article of the Special Part of the Code of the Republic of Kazakhstan on Administrative Offences. If no such reference exists, these persons shall bear liability on general grounds.

Notariat in the Republic of Kazakhstan is a legal institution for the provision of qualified legal assistance, ensuring the protection of the rights and legitimate interests of individuals and legal entities through the performance of notarial acts.

A notary may be a citizen of the Republic of Kazakhstan who has attained the age of twenty-five years, has a higher legal education, has at least two years of work experience in the legal profession, has completed an internship with a notary for a period of at least one year, has passed certification before the certification commission of justice, and has obtained a licence to engage in notarial activities, unless otherwise provided for by legislation. Notaries work in state notarial offices (state notaries) or engage in private practice (private notaries).

A private notary is a citizen who carries out notarial activities without establishing a legal entity on the basis of a licence, has insured their civil liability for obligations arising as a result of causing harm through the performance of notarial acts, and is a member of a notarial chamber.

The objectives of enforcement proceedings are the mandatory and timely adoption of measures aimed at the compulsory enforcement of enforcement documents issued on the basis of court decisions, rulings, directives and resolutions in civil and administrative cases, judgments and resolutions in criminal cases insofar as they concern property-related recoveries, as well as resolutions of other bodies.

A private bailiff may be a citizen of the Republic of Kazakhstan who engages in private practice in the enforcement of enforcement documents without establishing a legal entity, on the basis of a licence to engage in activities relating to the enforcement of enforcement documents issued by the authorised body.

The legal profession in the Republic of Kazakhstan is intended to facilitate the exercise of the human right, guaranteed by the State and enshrined in the Constitution, to judicial protection of one's rights and freedoms and to receive qualified legal assistance, as well as to facilitate the peaceful settlement of disputes.

An advocate may be a citizen of the Republic of Kazakhstan who has a higher legal education, has obtained a licence to practise advocacy, is mandatorily a member of an advocates' collegium, and provides legal assistance on a professional basis within the framework of advocacy.

Entrepreneurship is an independent and initiative-driven activity of citizens, kandas and legal entities aimed at obtaining net income through the use of property, the production and sale of goods, the performance of work and the provision of services, based on the right of private ownership (private entrepreneurship) or on the right of economic management or operational management of a state enterprise (state entrepreneurship). Entrepreneurial activity is carried out in the name of, at the risk of, and under the property liability of the entrepreneur. An individual who is a business entity shall be registered as an individual entrepreneur.

A legal entity is an organisation that owns separate property under the right of ownership, economic management or operational management and is liable for its obligations with that property, may acquire and exercise property and personal non-property rights and obligations in its own name, and may be a claimant and defendant in court.

In the commentary on Part 1, it is necessary to examine in greater detail such subjects of administrative offences as individual entrepreneurs and legal entities.

Part 2 of Article 34 of the repealed Code equated individual entrepreneurs with officials in matters of liability.

Such a combination of two different subjects of administrative delicts (an individual entrepreneur and an official) was обусловлено by the task of simplifying the drafting of sanctions for the elements of offences in which, alongside officials and legal entities, possible subjects also included persons carrying out entrepreneurial activities without establishing a legal entity, that is, individual entrepreneurs.

At the same time, the amounts of fines for individual entrepreneurs were initially equated specifically with the amounts of fines for officials, making them higher than the amounts of fines imposed on citizens, but substantially lower than the amounts of penalty sanctions imposed on legal entities. Individual entrepreneurs were also subject to such a type of administrative penalty as suspension of activities. Thus, on the one hand, an individual entrepreneur was equated with officials and, on the other hand, with legal entities, which resulted in an even more uncertain and contradictory legal status.

In accordance with the Entrepreneurial Code of the Republic of Kazakhstan, individual entrepreneurs and legal entities are now business entities which, depending on the average annual number of employees and average annual income, are divided into the categories of small, medium-sized or large businesses. Thus, it can be said that the Entrepreneurial Code of the Republic of Kazakhstan has equated the legal status of individual entrepreneurs and legal entities.

Such changes in the field of entrepreneurial activity prompted the drafters of the Code of Administrative Offences to revise the structure and substance of the sanctions and to separate the subjects of administrative offences into the following categories: individuals, officials and business entities (individual entrepreneurs and legal entities), which, as previously noted, are divided into the categories of small, medium-sized or large businesses depending on the average annual number of employees and average annual income.

Depending on the type of the listed subjects of an offence, the legal consequences differ accordingly. Different types of administrative penalties are applied to them on a differentiated basis. For example, the amounts of fines imposed on entrepreneurs and notaries differ (Part 2 of Article 44 of the Code of Administrative Offences).

Thus, the legislator has clearly distinguished the liability of each subject of an administrative offence depending on the category to which that subject belongs.

Part 2 of the provision under consideration regulates a mandatory condition without which administrative liability of individual entrepreneurs and legal entities cannot arise. Such a condition is the sanctioning or approval of an action or omission that constitutes an element of the offence.

A legal entity should not and cannot bear liability for an act committed by an employee of their own volition, contrary to the established procedure. For example, in the event of a violation of safety requirements when handling explosive materials, radioactive and other environmentally hazardous substances (Article 297 of the Code of Administrative Offences), a legal entity shall not be held liable if an employee disposes of pyrotechnic products in an open fire without the approval of an authorised person. In this case, the employee themselves shall bear liability as an individual. This legal structure reveals signs of culpable liability of a legal entity, although this is not expressly stated.

The same applies to employees hired under an employment contract by an individual entrepreneur.

In general, it should be noted that one of the most problematic and uncertain issues in theory and practice is the fundamental question of the guilt of legal entities.

As is known, a legal entity is established, operates and ceases to exist in accordance with the rules of civil law. Having been endowed with civil legal personality, a legal entity possesses legal capacity. However, the current legislation does not contain a legal definition of the legal entity's capacity to act, possibly because, owing to the artificial nature of a legal entity, its capacity to act is exercised through management bodies composed of individuals.

It is quite difficult to formulate a single universal definition of the guilt of individuals and legal entities. The nature of the guilt of these subjects in administrative and other delicts is heterogeneous, which is обусловлено by the different ways in which their will is formed, expressed and manifested.

The Kazakh legislator has chosen a straightforward approach to resolving this problem by adopting a subjective approach to determining the guilt of a legal entity through establishing the guilt of a representative of the legal entity, which constitutes a kind of “legal fiction”.

Thus, when bringing an individual entrepreneur or a legal entity to liability, it is necessary to prove that the act was sanctioned or approved by a body or person performing management functions in the legal entity, or by an employee of the individual entrepreneur or legal entity performing organisational and administrative or administrative and economic functions. If there is no evidence of such sanctioning, the employee of the individual entrepreneur (legal entity) must be held liable as an individual. For more detailed information on the guilt of a legal entity, see the commentary on Articles 10, 11 and 25 of the Code of Administrative Offences.

Part 3 of this provision takes into account the characteristics of a legal entity relating to its structure. In accordance with civil legislation (Article 43 of the Civil Code), a legal entity has the right to establish its own:

Branches — separate subdivisions of a legal entity located outside its place of location and performing all or part of its functions, including representative functions;

Representative offices — separate subdivisions of a legal entity located outside its place of location and protecting and representing the interests of the legal entity, carrying out transactions and other legal acts on its behalf, except in cases provided for by legislative acts of the Republic of Kazakhstan;

Other structural subdivisions — territorially separate subdivisions at whose location permanent workplaces are equipped and which perform part of the functions of the legal entity.

Branches and representative offices are not legal entities (Article 43 of the Civil Code, Article 3 of the Law of the Republic of Kazakhstan dated 17 April 1995 “On State Registration of Legal Entities and Record Registration of Branches and Representative Offices”). However, their registration as independent taxpayers recognises them as subjects of tax legislation and, accordingly, they may become subjects of administrative offences in the field of taxation in the same capacity as legal entities. This is precisely what is declared in Part 3 of the article under consideration.

Part 4 of the provision under consideration represents the reverse side of the rule established in Part 2 of this provision, whereby a legal entity and an individual entrepreneur are exempted from administrative liability for unauthorised actions of an employee.

This new provision in the Code of Administrative Offences eliminates the problem that previously existed in legislation on administrative offences, whereby both a legal entity and its officials or manager could be held liable for the same offence.

The updated provision establishes the condition for exempting an employee of a legal entity or an individual entrepreneur from liability. Such a condition is the bringing of the legal entity or individual entrepreneur themselves to liability. An example is the opposite situation, in which an employee acts with the approval of a legal entity or an individual entrepreneur, in which case liability is imposed on the latter.

The note to this article serves to establish the conceptual framework used in this Code. In the provisions (sanctions) of the Special Part of the Code of Administrative Offences, administrative penalties are addressed to business entities, which are to be understood as individual entrepreneurs and legal entities. The content of this note applies throughout the entire Code of Administrative Offences.

Scientific and Practical Commentary on the Code of the Republic of Kazakhstan on Administrative Offences (Article-by-Article), by the Team of Authors:

Bachurin Sergey Nikolaevich, Candidate of Legal Sciences, Associate Professor — Chapter 48 (co-authored with Khakimov E. M.);

Gabdualiev Mereke Tреkovich, Candidate of Legal Sciences — Chapters 11, 21, 22, 23;

Zhusipbekova Ainur Maratovna, Master of Law — Chapter 13 (co-authored with Karpekin A. V.); Chapters 33 and 39 (co-authored with Seitjanov O. T.);

Karpekin Aleksandr Vladimirovich, Candidate of Legal Sciences, Associate Professor — Chapter 13 (co-authored with Zhusipbekova A. M.);

Korneychuk Sergey Vasilyevich — Chapter 2; Chapter 6 (co-authored with Seitjanov O. T. and Khakimov E. M.); Chapter 8; Chapter 25 (co-authored with Khakimov E. M.); Articles 457–470, 488, 488-1, 491–506; Chapters 28, 30 and 52;

Koryakin Ilya Petrovich, Doctor of Legal Sciences, Professor — Chapter 49;

Kysykova Gulnara Bauyrzhanovna, Candidate of Legal Sciences — Chapter 20;

Omarova Botagoz Akimgereevna — Chapter 17; Chapter 18 (co-authored with Parmankulova B. A.); Chapters 26 and 31; Chapter 32 (co-authored with Parmankulova B. A.);

Parmankulova Bayan Askhanbaevna — Chapter 18 (co-authored with Omarova B. A.); Chapter 19; Chapter 32 (co-authored with Omarova B. A.); Chapter 43 (co-authored with Tukiev A. S.);

Podoprigora Roman Anatolyevich, Doctor of Legal Sciences, Professor — Chapter 24, Articles 489, 489-1 and 490;

Porokhov Evgeny Viktorovich, Doctor of Legal Sciences — Chapters 14, 15, 16 and 29; Articles 471–475;

Seitjanov Olzhas Temirzhanovich, Candidate of Legal Sciences, Associate Professor — Chapter 4; Chapter 5 (co-authored with Khakimov E. M.); Chapter 6 (co-authored with Korneychuk S. V. and Khakimov E. M.); Chapter 9; Chapter 10 (co-authored with Shaimerdenov B. E. and Filin V. V.); 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 Aleksandr Sergeevich, PhD — Chapters 38, 40, 42 and 43-1 (co-authored with Tukiev A. S.); Chapter 44;

Tukiev Aslan Sultanovich, Candidate of Legal Sciences, Associate Professor — Chapters 1, 3 and 35; Chapters 38, 40 and 42 (co-authored with Smyshlyaev A. S.); Chapter 43 (co-authored with Parmankulova B. A.); Chapter 43-1 (co-authored with Smyshlyaev A. S.); Chapter 44-1 (co-authored with Shipp D. A.); Chapter 45; Chapter 46 (co-authored with Shipp D. A.); Chapter 47;

Filin Vladimir Vladimirovich, Candidate of Legal Sciences, Associate Professor — Chapter 10 (co-authored with Seitjanov O. T. and Shaimerdenov B. E.);

Khakimov Erzhan Maratovich, Master of Law — Chapter 5 (co-authored with Seitjanov O. T.); Chapter 6 (co-authored with Seitjanov O. T. and Korneychuk S. V.); Chapter 7; Chapter 25 (co-authored with Korneychuk S. V.); Chapters 34 and 41; Chapter 48 (co-authored with Bachurin S. N.); Chapter 53;

Shaimerdenov Bolat Erkenovich, Master of Law — Chapter 10 (co-authored with Seitjanov O. T. and Filin V. V.); Chapter 12; Articles 476–487 and 507–509; Chapter 36 (co-authored with Seitjanov O. T.); Chapters 37, 50 and 51;

Shipp Denis Alekseevich — Chapters 44-1 and 46 (co-authored with Tukiev A. S.).

Date of amendment of the act: 01.01.2020

Date of adoption of the act: 01.01.2020

Place of adoption: 100050000000

Body that adopted the act: 103001000000

Region of application: 100000000000

Registration number of the normative legal act assigned by the rule-making body: 5

Status of the act: new

Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000

Form of the act: COMMENTARY / CODE

Legal force: 1900

Language of the act: Russian

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