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Commentary to article 130. Failure by officials of local executive bodies and (or) legal representatives of the child to fulfill the obligation to protect the homes of orphaned children and children left without parental care The Code of the Republic of Kazakhstan on Administrative Offences
1. Failure by officials of local executive bodies and (or) legal representatives of the child to fulfill the obligation to protect the homes of orphaned children and children left without parental care, –
entails a fine in the amount of one hundred and fifty monthly calculation indices.
2. The act provided for in the first part of this article, committed repeatedly within a year after the imposition of an administrative penalty, –
entails a fine in the amount of two hundred monthly calculation indices.
Part 1. The public danger of this offense is that the failure of officials of local executive bodies and (or) legal representatives of the child to fulfill the duties defined by the legislation of the Republic of Kazakhstan endangers the safety of the home of orphaned children, children left without parental care.
The object is social relations related to the realization of the right of orphaned children, children left without parental care to housing.
The concepts of "orphan child", "child left without parental care", and "home" were considered in the analysis of Article 129 of the Administrative Code.
In accordance with the Law on the Rights of the Child in the Republic of Kazakhstan, every child has the right to housing.
According to Article 14 of this Law, an orphan child, a child left without parental care, who are in educational, medical and other organizations, including those providing temporary isolation from society, under guardianship or foster care, retain ownership of a dwelling or the right to use a dwelling.
A dwelling from the state housing stock or a dwelling rented by a local executive body in a private housing stock is reserved for orphaned children, children left without parental care, for the period of their stay in educational organizations, medical and other organizations, including those providing temporary isolation from society, under guardianship or guardianship, foster care – until they reach the age of majority. At the same time, the preservation of the right of ownership of the dwelling or the right to use the dwelling of children is ensured by local executive bodies.
Children left without parental care, including orphaned children, cannot be evicted from their occupied housing without providing another home.
Transactions involving the alienation, including the exchange or donation of an orphan child's home, a child left without parental care who has not reached the age of fourteen, or the conclusion of a surety agreement on their behalf, transactions involving the rental of a home for free use or as collateral, transactions involving the renunciation of their inheritance rights. the law, the will, the division of their home or the allocation of a share from it.
The objective side of this offense is a violation of the obligation established by law to ensure the safety of the home of orphaned children, children left without parental care, which can be expressed both in the form of action and inaction.
In order to ensure the safety of the homes of orphaned children, children left without parental care, according to art. 14-1 of the Law "On the Rights of the Child in the Republic of Kazakhstan", local executive bodies have the following responsibilities:
1) to keep records and monitor the safety of the homes of orphaned children and children left without parental care;
2) to ensure the safety of the homes of orphaned children, children left without parental care, before they are placed under guardianship or guardianship, foster care, educational organizations, medical and other organizations;
3) establish custody of the home of orphaned children, children left without parental care.
The legal representatives of the child are also obliged to ensure the safety of the home of orphaned children, children left without parental care. The legal representatives of the child, with the consent of the body performing the functions of guardianship or guardianship, may rent (sublet) the home of orphaned children, children left without parental care, on the basis of a model agreement approved by the Government of the Republic of Kazakhstan.
The money received under the lease agreement is subject to crediting to the bank account of orphaned children and children left without parental care.
The order of safety of the home of orphans and children left without parental care is determined by the Rules for the Safety of the home of orphans and children left without parental care, developed in accordance with paragraph 2 of Article 14-1 of the Law of the Republic of Kazakhstan dated August 8, 2002 "On the Rights of the Child in the Republic of Kazakhstan" and approved by the Decree of the Government of the Republic of Kazakhstan dated November 29 2013, No. 1271.
The rules for the safety of the homes of orphaned children and children left without parental care include the following:
1) accounting for the housing of orphaned children, children left without parental care;
2) establishing custody of the home of orphaned children, children left without parental care;
3) renting out the homes of orphaned children, children left without parental care;
4) monitoring the fulfillment by the legal representatives of the child of the duty to protect the homes of orphaned children and children left without parental care.
The subject of an administrative offense is a person whose duties include ensuring the safety of the home of orphaned children, children left without parental care.
These include: officials of local executive bodies, whose duties include ensuring the safety of the homes of orphaned children, children left without parental care; legal representatives of the child.
Officials, in accordance with the note to Article 30 of the Administrative Code, are recognized as persons who permanently, temporarily or under special authority perform or were performing at the time of the commission of an administrative offense the functions of a government representative or who were performing or were performing at the time of the commission of an administrative offense organizational, administrative or economic functions in state institutions, quasi-public sector entities, local self-government bodies. self-management.
The legal representatives of the child are parents, adoptive parents, guardian, trustee, foster carer, foster parents, and other persons replacing them who, in accordance with the legislation of the Republic of Kazakhstan, provide care, education, upbringing, and protection of the rights and interests of the child.
The subjective side of the offense provided for in the commented article is characterized by an intentional or careless form of guilt. The person 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 treated them indifferently.
Or it is a question of a person's negligence, inattention, improper observance of the duties assigned to him. At the same time, there are both objective and subjective prerequisites for ensuring that, with due diligence and attentiveness in the performance of their duties, they can be aware of the social danger of their actions (inaction) and prevent the onset of socially dangerous consequences.
Part 2 of the commented article defines the commission of a similar offense repeatedly as a qualifying feature within a year after the imposition of an administrative penalty under the first part of Article 130 of the Administrative Code.
Protocols on administrative offenses provided for in Article 130 of the Administrative Code may be drawn up by authorized officials of the internal affairs bodies (Part 1 of Article 804 of the Administrative Code).
Cases of these administrative offenses are considered by judges of specialized inter-district juvenile courts (Part 2 of Article 684 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.);
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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