Commentary to article 11. The principle of guilt The Code of the Republic of Kazakhstan on Administrative Offences
1. An individual is subject to administrative responsibility only for those offenses for which his guilt has been established. Objective imputation, that is, administrative responsibility for the innocent infliction of harm by an individual, is not allowed.
2. An individual who commits an act intentionally or negligently is found guilty of an administrative offense.
Guilt is a person's mental attitude towards an unlawful act or omission and possible consequences. Guilt manifests itself in the form of intent or carelessness. The most important feature of the Administrative Code is that, unlike criminal legislation, it provides for the liability of legal entities.
Part 1 of the commented article provides for the principle of an individual's guilt, which is that administrative liability can occur only if the guilt of a person suspected of committing an administrative offense is established.
A culpable act means that an administrative offense was committed by a person intentionally or negligently (Articles 26 and 27 of the Administrative Code). The presence of guilt is a mandatory sign of an administrative offense, but this sign is not sufficient for administrative responsibility, since the subject of administrative responsibility includes such necessary characteristics as the age and legal capacity of the person. For example, a minor or an insane person violates the rules established for pedestrians, and despite the presence of illegality, there is no culpability of the act.
The principle of guilt is specifically formulated in art. 11 of the Administrative Code. In accordance with Part 1 of Article 11 of the Administrative Code, an individual is subject to administrative responsibility only for those offenses for which his guilt has been established. That is, without establishing guilt, it is impossible to determine correctly:
- the presence of elements of an administrative offense in the actions of a person;
- the existence of grounds for administrative responsibility;
- the correct qualification of the offense;
- individualization of administrative responsibility and the expediency of administrative penalties.
In relation to a legal entity, some legal scholars declare objective imputation. Objective imputation is the bringing to administrative responsibility of a person without establishing and proving his guilt, that is, for innocent harm. This statement is to some extent supported by Part 1 of Article 25 of the Administrative Code, according to which an administrative offense of a legal entity is recognized as its (legal entity's) unlawful act or omission for "which this Code provides for administrative liability."
In relation to the inaction of a legal entity, it means an unused opportunity to comply with a norm or rule, that is, all measures depending on it have not been taken to comply with them.
Despite the fact that Part one stipulates that objective imputation of guilt is not allowed, but this can only be attributed to individuals. Unfortunately, the Administrative Code does not clearly define the guilt of a legal entity. However, based on Part 2 of art. 33 of the Code of Administrative Offenses states that a legal entity is subject to administrative responsibility for an administrative offense if the act (action or omission) provided for in the Special Part (Section 2) of the Code of Administrative Offenses was committed, authorized, approved by an authority, a person performing the management functions of a legal entity, or an employee of an individual entrepreneur and a legal entity performing organizational and administrative economic functions.
In general, it could be defined as the lack of organization of enterprises, organizations and institutions of all forms of ownership, the failure of the latter to take the necessary measures to fulfill their duties, the failure to apply the required efforts to eliminate violations and their causes.
To confirm the guilt of the organization, it is sufficient to establish that the offense was the result of a defect in the organization itself, its disorganization, that the reason for the failure to fulfill the assigned duties was the lack of efforts of this team. At the same time, the organization is responsible for its own guilt both in the presence of clearly expressed guilt of individual employees (in this case, it is advisable to combine collective responsibility with personal responsibility), and when the guilt of specific individuals is excluded or cannot be established.
Therefore, formally and legally, the legislator omitted the issue of the guilt of the legal entity.
However, in fact, an important feature of the new Code should be noted, which is that it resolves the issue of a legal entity's guilt by establishing the guilt of a person whose actions or omissions resulted from the commission, authorization, approval by an authority, a person performing the management functions of a legal entity, or an employee of an individual entrepreneur and a legal entity performing organizational, administrative or administrative and economic functions. This fact can be seen from the practice of administrative authorities and the court.
Because of this, the problem of a legal entity's guilt in committing an administrative offense needs a fairly definite solution. The legislative definition of an administrative offense of a legal entity contained in the Code of Administrative Offenses should establish the principle of a legal entity's guilt in committing an administrative offense as a prerequisite for bringing it to administrative responsibility. Or the "indirect guilt" of a legal entity is directly fixed through the establishment of guilt for an act (action or omission) that is committed, authorized, approved by an authority, a person performing the management functions of a legal entity, or an employee of an individual entrepreneur and a legal entity performing organizational, administrative, or economic functions.
Thus, it can be said that the guilt of a legal entity is determined by establishing the guilt of a representative of a legal entity, which is a kind of "legal fiction".
Part 2 of the analyzed article provides that an individual who has committed an act intentionally or negligently is found guilty of an administrative offense. The legislative definition of forms of guilt guarantees the implementation of the principle of subjective imputation of an offense for individuals.
On the basis of Article 26 of the Administrative Code, an administrative offense is recognized as committed intentionally if the individual who committed it was aware of the unlawful nature of his action (inaction), foresaw its harmful consequences and desired or consciously allowed these consequences to occur, or was indifferent to them.
The science of administrative law distinguishes three types of intent: direct, indirect and indifference. In all cases, awareness and anticipation of the consequences of the unlawful nature of one's action (inaction) is common to both direct and indirect intent and indifference. These types of intent coincide with each other in the nature of foresight, that is, in the so-called intellectual element.
More detailed explanations of the intentional form of guilt are set out in the comments to Article 26 of the Administrative Code.
According to Article 27 of the Administrative Code, an administrative offense is recognized as negligent if the individual who committed it foresaw the possibility of harmful consequences of his action (inaction), but without sufficient grounds thoughtlessly counted on their prevention or did not foresee the possibility of such consequences, although with due care and foresight it should have been and could have been to anticipate. A careless administrative offense is less dangerous than an intentional act.
However, it differs significantly in regulation. From a formal legal point of view, administrative liability for negligence should occur only if it is expressly provided for in the relevant article of the Special Part of the Administrative Code. However, this rule has a significant distortion in practice, and in fact, the law enforcement officer often does not distinguish and, accordingly, does not establish intent or negligence in the act of the perpetrator.
At the same time, science distinguishes between two forms of carelessness: frivolity and negligence. More detailed explanations of the negligent form of guilt are set out in the comments to the article of the Administrative Code.
If both forms of guilt are allowed in the disposition of the article of the Special Part of the Administrative Code, then for actions (omissions) committed through negligence, a less severe penalty is imposed within the scope of the sanction of the article or even exemption from administrative responsibility in cases provided for in Chapter 8 of the Administrative Code.
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.);
Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);
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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