Commentary on Article 670. Failure to comply with a resolution or other lawful requirement of a judicial enforcement officer or a court bailiff of the Code of the Republic of Kazakhstan on Administrative Offences
1. Failure to comply with resolutions and lawful requirements of a judicial enforcement officer related to the enforcement of an enforcement document, including the provision, within the time limit established by the judicial enforcement officer, of information concerning the debtor’s place of employment and income, the making of deductions in accordance with the enforcement document and the transfer of the amount recovered to the claimant, and the enforcement of recovery against monetary funds and property of the debtor held by other individuals and legal entities –
shall entail a fine of ten monthly calculation indices for individuals, fifteen monthly calculation indices for officials, and twenty monthly calculation indices for legal entities.
2. Submission to a judicial enforcement officer of knowingly inaccurate information, including information concerning the debtor’s income and property status –
shall entail a fine of twenty monthly calculation indices for individuals and fifty monthly calculation indices for legal entities.
3. Failure to comply with the lawful requirements of a court bailiff –
shall entail a fine of fifty monthly calculation indices.
The general object of the administrative offence under consideration is the normal functioning of the institution of state authority.
The generic object is the normal functioning of judicial enforcement officers and court bailiffs in ensuring the enforcement of a sentence, judgment or other judicial act.
The objective element of Part 1 is expressed in the form of an omission aimed at failing to comply with resolutions and lawful requirements of a judicial enforcement officer related to the enforcement of an enforcement document, including the provision, within the time limit established by the judicial enforcement officer, of information concerning the debtor’s place of employment and income, the making of deductions in accordance with the enforcement document and the transfer of the amount recovered to the claimant, and the enforcement of recovery against monetary funds and property of the debtor held by other individuals and legal entities.
The legal basis for imposing administrative liability under the part of the Article under consideration is Part 5 of Article 10 and Article 128 of the Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Judicial Enforcement Officers” dated 2 April 2010, which provide that a resolution of a judicial enforcement officer is subject to mandatory execution; the lawful requirements of a judicial enforcement officer are binding on all state bodies, local self-government bodies, citizens and organisations and must be strictly complied with throughout the territory of the Republic of Kazakhstan.
In accordance with Paragraph 29 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 7 dated 6 October 2017, “On Certain Issues Concerning the Application by Courts of the Provisions of the Special Part of the Code of the Republic of Kazakhstan on Administrative Offences”, failure to comply with resolutions and other lawful requirements of a judicial enforcement officer, except for a requirement to enforce the enforcement document as a whole, entails liability under Article 670 of the Code of the Republic of Kazakhstan on Administrative Offences.
Enforcement documents are the documents specified in Article 9 of the Law of the Republic of Kazakhstan dated 2 April 2010, “On Enforcement Proceedings and the Status of Judicial Enforcement Officers”.
With regard to the time limits for providing information to a judicial enforcement officer, attention should be drawn to Part 1 of Article 39 of the Law “On Enforcement Proceedings and the Status of Judicial Enforcement Officers”, which stipulates that enforcement proceedings conducted by judicial enforcement officers in respect of enforcement documents must be completed within a period not exceeding two months from the date on which the enforcement proceedings are initiated, except for enforcement documents concerning periodic recoveries, as well as cases in which other enforcement periods are established by legislative acts. Thus, the time limits for providing the necessary information are established independently by the judicial enforcement officer and are generally specified in the resolutions of the judicial enforcement officer, as well as in requests sent to the organisation concerned.
In accordance with Article 1 of the Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Judicial Enforcement Officers”, there are three categories of judicial enforcement officers:
Private judicial enforcement officer – 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 involving the enforcement of enforcement documents (hereinafter referred to as the licence of a private judicial enforcement officer) issued by the authorised body (Paragraph 4 of Article 1).
State judicial enforcement officer – an official in the public service who performs the functions assigned to them by law concerning the adoption of measures aimed at the compulsory enforcement of enforcement documents (Paragraph 5 of Article 1).
Judicial enforcement officer – a state judicial enforcement officer or a private judicial enforcement officer who performs the functions assigned to them by law concerning the adoption of measures aimed at the compulsory enforcement of enforcement documents and who has equal rights and obligations, subject to the exceptions provided for by the Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Judicial Enforcement Officers” (Paragraph 6 of Article 1).
Failure to comply with the requirements of any of the above-mentioned judicial enforcement officers entails administrative liability.
The subjects of the administrative offence under consideration pursuant to Part 1 are individuals (the debtor), legal entities and officials (persons with whom the debtor is in an employment relationship or from whom the debtor receives income). An example involving a legal entity is a situation in which a culpable legal entity (a commercial bank or another non-bank credit organisation) ignores the requirements of a writ of execution or another enforcement document concerning the recovery and transfer or disbursement of monetary funds from a bank account (settlement, current or other account from which the recovery of funds is permitted) in which the relevant monetary funds are held.
The subjective element of the administrative offence under consideration in Part 1 is characterised by guilt in the form of direct and indirect intent. Direct intent means that the offender is aware of the unlawful nature of their conduct, foresees the harmful consequences of their conduct and desires those consequences to occur. Indirect intent means that the person understands that they are obliged to comply with both a resolution and any other lawful requirement of a judicial enforcement officer or a court bailiff but nevertheless fails to take certain actions necessary for compliance.
The objective element of the conduct under consideration in Part 2 consists of an act, namely the submission to a judicial enforcement officer of knowingly inaccurate information, including information concerning the debtor’s income and property status. For example, Article 35 of the Law “On Enforcement Proceedings and the Status of Judicial Enforcement Officers” establishes the debtor’s obligation to provide information concerning their property status, which must correspond to reality.
The legal basis for imposing liability under this part of the Article is Articles 35 and 100 of the Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Judicial Enforcement Officers” dated 2 April 2010, which stipulate the obligation to provide accurate information concerning the debtor’s place of employment, income and property status.
Knowingly inaccurate information (false information) means information that does not correspond to reality. Thus, according to the dictionary, “inaccurate” means uncertain, unconfirmed or doubtful, while “false” means containing untruth, incorrect, erroneous, fictitious or defective.
In judicial practice, the terms “knowingly false” and “inaccurate” information are generally not distinguished from one another. At the same time, the objective element of the part under consideration may take the following forms:
– concealment of the actual place of employment;
– indicating as the sole place of employment an organisation where the person receives a small official salary;
– underreporting official income by agreement with the employer, and so forth.
It should also be noted that the submission of inaccurate information (Part 2 of Article 670 of the Code of the Republic of Kazakhstan on Administrative Offences) should not be regarded as failure to comply with a requirement of a judicial enforcement officer (Part 1 of Article 670 of the Code of the Republic of Kazakhstan on Administrative Offences), since the person obliged to provide such information nevertheless sends it to the judicial enforcement officer. It should be recalled that Part 1 is characterised by an omission.
The subjects under the part under consideration are both individuals (the debtor or the employer) and legal entities (persons with whom the debtor is in an employment relationship or from whom the debtor receives income). Thus, knowingly inaccurate information submitted to a judicial enforcement officer, including information concerning the debtor’s income and property status, may be sent either on behalf of an individual (for example, an individual entrepreneur acting as an employer) or on behalf of a legal entity (a company, organisation, and so forth).
The subjective element under Part 2 is characterised by guilt in the form of direct and indirect intent. Direct intent means that the offender is aware that they are submitting knowingly inaccurate information and, at the same time, foresees the harmful consequences of such conduct and desires those consequences to occur.
Indirect intent means that the offender, while being aware of the unlawful nature of their actions in submitting knowingly inaccurate information, does not directly desire the occurrence of harmful consequences but consciously permits them to occur or remains indifferent to them.
The objective element of Part 3 is characterised both by an act committed contrary to a requirement of a court bailiff and by an omission consisting of failure to comply with a lawful order of a court bailiff, that is, ignoring it.
The legal basis for imposing liability under this part of the Article is Paragraph 3 of Article 1 of the Law of the Republic of Kazakhstan “On Court Bailiffs”, which stipulates that the lawful requirements of a court bailiff are binding on all individuals and legal entities.
A court bailiff is an official in the public service who performs the duties assigned to them in accordance with the Law of the Republic of Kazakhstan dated 7 July 1997, “On Court Bailiffs”.
In accordance with Paragraph 3 of Article 1 of the above-mentioned Law, the lawful requirements of a court bailiff are binding on all individuals and legal entities.
Article 7 of the same Law provides for the following requirements that a court bailiff is entitled to make:
to require citizens to comply with the established procedure governing the activities of the court, as well as to cease unlawful actions in the court premises and in the courtroom;
1-1) to require citizens to comply with the established procedure and to cease unlawful actions during the performance of enforcement actions by judicial enforcement officers.
Thus, liability under Part 3 of the Article under consideration arises in cases where the above-mentioned requirements of a court bailiff concerning compliance with the established procedure governing the activities of the court and the cessation of unlawful actions that violate the rules established in the court, in the courtroom, as well as during the performance of enforcement actions by judicial enforcement officers, are not complied with.
It should be noted that various measures are applied to debtors under enforcement documents within enforcement proceedings and for the purpose of enforcing a court decision. When enforcement proceedings are initiated on the basis of an enforcement document, debtors are notified in advance, their rights and obligations are explained to them, and they are also warned of the administrative liability provided for by law. If a court decision is not complied with voluntarily, various resolutions are issued to secure enforcement of the enforcement document, including resolutions imposing seizure of property, freezing bank accounts and imposing a temporary restriction on departure from the Republic of Kazakhstan.
Only individuals may be recognised as subjects of the administrative offence under consideration pursuant to Part 3. In particular, information is completed through actions performed by an individual. In turn, with regard to Part 3, it should be noted that a legal entity cannot commit unlawful actions in the court premises or in the courtroom, nor can it commit unlawful actions during the performance of enforcement actions by judicial enforcement officers, since such actions can only be performed by human beings.
The subjective element of the administrative offence under consideration is characterised by guilt in the form of direct and indirect intent. Direct intent consists in the offender being aware of the unlawful nature of failing to comply with the lawful requirements of a court bailiff, foreseeing the occurrence of harmful consequences and desiring those consequences to occur.
Indirect intent consists in a person being aware that failure to comply with the lawful requirements of a judicial enforcement officer is unlawful, while not directly desiring the occurrence of any harmful consequences but consciously permitting them to occur or remaining indifferent to them.
Pursuant to Part 1 of Article 694 of the Code of the Republic of Kazakhstan on Administrative Offences, cases concerning administrative offences provided for by Article 670 of the Code are examined by the justice authorities.
According to Part 2 of the same Article, the following persons are authorised to impose administrative penalties: the head of the authorised body in the field of state registration of regulatory legal acts and in the field of ensuring the enforcement of enforcement documents, and their deputies; the heads of the justice authorities of the regions, cities of republican significance and the capital, and their deputies.
In accordance with Subparagraph 2 of Paragraph 1 of Article 126 of the Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Judicial Enforcement Officers”, a judicial enforcement officer, with the exception of a private judicial enforcement officer, is authorised to draw up a report on an administrative offence. Thus, after all measures have been taken and if they have produced no result, a judicial enforcement officer is entitled to draw up a report on an administrative offence in accordance with the procedure established by law.
It may also be noted that, pursuant to Subparagraph 3 of Paragraph 1 of Article 7 of the Law “On Court Bailiffs”, a court bailiff is entitled to draw up a report on an offence for the purpose of bringing the offender to liability in accordance with the procedure established by law.
It may also be noted that when judicial enforcement officers draw up administrative offence reports, most debtors who do not wish to be held administratively liable immediately comply with the court decision, which has a positive effect on the enforcement of enforcement documents.
Scientific and Practical Commentary on the Code of the Republic of Kazakhstan on Administrative Offences (Article-by-Article Commentary), by the collective of authors:
Bachurin Sergey Nikolaevich, Candidate of Legal Sciences, Associate Professor – Chapter 48 (co-authored with E. M. Khakimov);
Gabdualiev Mereke Tреkovich, Candidate of Legal Sciences – Chapters 11, 21, 22 and 23;
Zhusipbekova Ainur Maratovna, Master of Laws – Chapter 13 (co-authored with A. V. Karpekin); Chapters 33 and 39 (co-authored with O. T. Seitjanov);
Karpekin Alexander Vladimirovich, Candidate of Legal Sciences, Associate Professor – Chapter 13 (co-authored with A. M. Zhusipbekova);
Korneychuk Sergey Vasilyevich – Chapter 2; Chapter 6 (co-authored with O. T. Seitjanov and E. M. Khakimov); Chapter 8; Chapter 25 (co-authored with E. M. Khakimov); Articles 457–470, 488, 488-1 and 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 B. A. Parmankulova); Chapters 26 and 31; Chapter 32 (co-authored with B. A. Parmankulova);
Parmankulova Bayan Askhanbaevna – Chapter 18 (co-authored with B. A. Omarova); Chapter 19; Chapter 32 (co-authored with B. A. Omarova); Chapter 43 (co-authored with A. S. Tukiev);
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 E. M. Khakimov); Chapter 6 (co-authored with S. V. Korneychuk and E. M. Khakimov); Chapter 9; Chapter 10 (co-authored with B. E. Shaimerdenov and V. V. Filin); Chapter 33 (co-authored with A. M. Zhusipbekova); Chapter 36 (co-authored with B. E. Shaimerdenov); Chapter 39 (co-authored with A. M. Zhusipbekova);
Smyshlyaev Alexander Sergeevich, PhD – Chapters 38, 40, 42 and 43-1 (co-authored with A. S. Tukiev); Chapter 44;
Tukiev Aslan Sultanovich, Candidate of Legal Sciences, Associate Professor – Chapters 1, 3 and 35; Chapters 38, 40 and 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 D. A. Shipp); Chapter 45; Chapter 46 (co-authored with D. A. Shipp); Chapter 47;
Filin Vladimir Vladimirovich, Candidate of Legal Sciences, Associate Professor – Chapter 10 (co-authored with O. T. Seitjanov and B. E. Shaimerdenov);
Khakimov Erzhan Maratovich, Master of Laws – Chapter 5 (co-authored with O. T. Seitjanov); Chapter 6 (co-authored with O. T. Seitjanov and S. V. Korneychuk); Chapter 7; Chapter 25 (co-authored with S. V. Korneychuk); Chapters 34 and 41; Chapter 48 (co-authored with S. N. Bachurin); Chapter 53;
Shaimerdenov Bolat Erkenovich, Master of Laws – Chapter 10 (co-authored with O. T. Seitjanov and V. V. Filin); Chapter 12; Articles 476–487 and 507–509; Chapter 36 (co-authored with O. T. Seitjanov); Chapters 37, 50 and 51;
Shipp Denis Alekseevich – Chapters 44-1 and 46 (co-authored with A. S. Tukiev).
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.
Territorial scope: 100000000000.
Registration number assigned to the regulatory legal act by the rule-making body: 5.
Status of the act: new.
Area 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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