Commentary to article 136. Violation of the right of state ownership of land The Code of the Republic of Kazakhstan on Administrative Offences
Chapter 13. ADMINISTRATIVE OFFENSES ENCROACHING ON PROPERTY
Administrative offenses encroaching on property are administratively punishable culpable unlawful acts that infringe on the ownership of material goods to the respective owners, as well as violate the requirements for ensuring their safety. The right of ownership and its protection are one of the basic human and civil rights, and in the Republic of Kazakhstan it is guaranteed by the state. According to Article 6 of the Constitution of the Republic of Kazakhstan: "State and private property are recognized and equally protected in the Republic of Kazakhstan. Property is binding, and its use must simultaneously serve the public good. The subjects and objects of ownership, the scope and limits of the exercise of their rights by the owners, and the guarantees of their protection are determined by law. The land and its subsoil, waters, flora and fauna, and other natural resources are state-owned."
In the course of studying Chapter 13 of the Administrative Code, a question arises about the inclusion in this chapter of such an administrative offense as "Failure to perform or improper performance of duties to ensure anti-terrorist protection and maintain an adequate level of security of an object vulnerable to terrorism," provided for in Article 149 of the Administrative Code. The inclusion of this administrative offense is due to the fact that violations of the anti-terrorist requirements established by law may result in more serious consequences for the State, such as the destruction or damage of facilities that are strategically important to the State. Bringing to justice persons who have committed the specified administrative offense is a prevention of the commission of more serious offenses, a kind of prevention of terrorist crime.
The analysis showed that the legislator considers 15 types of administrative offenses to be offenses encroaching on property. The generic object of the administrative offenses under consideration is property. The attribution of the actions indicated in these compositions to the number of administrative offenses is aimed at protecting both the right of state property and the right of private property. It is necessary to emphasize that the protection of the right of state ownership of land, its subsoil, waters, flora and fauna, and other natural resources is conditioned by the need for state control to prevent irreversible damage to the environment and is the implementation of the norm that enshrines the implementation of state protection of the rights and legitimate interests of citizens, which include property rights.
Of the 15 offenses of the Administrative Code provided for in Chapter 13 of the Administrative Code, it was established that the offences provided for in art. 136, 139, 141, 142, 143, 144, 145, 148, 149 The Administrative Code is aimed at protecting the right of state property; Articles 137, 138, 140, 146, 147 of the Administrative Code are aimed at protecting both rights state property, but also private; the offense provided for in Article 150 of the Administrative Code is solely aimed at protecting the property rights of citizens of our state.
Violation of property rights is one of the most serious violations in the sphere of property relations and the institution of administrative responsibility is a mechanism for protecting the property rights of the Republic of Kazakhstan and its citizens.
Article 136. Violation of the right of state ownership of land
Illegal occupation or exchange of state-owned land plots or other transactions that directly or indirectly violate the right of state ownership of land, as well as the late return of temporarily occupied state lands –
they impose a fine on individuals in the amount of seventy–five, on officials, small businesses or non-profit organizations - in the amount of one hundred, on medium–sized businesses – in the amount of one hundred and fifty, on large businesses - in the amount of seven hundred monthly calculation indices.
The public danger of an administrative offense under Article 136 of the Administrative Code lies in the fact that the perpetrator, by illegally occupying or exchanging state land or making other transactions, as well as by untimely returning temporarily occupied state land, causes material damage to the owner of the property.
Article 6 of the Constitution of the Republic of Kazakhstan states: "The land and its subsoil, waters, flora and fauna, and other natural resources are state-owned. Land may also be privately owned on the grounds, conditions and within the limits established by law."
It follows from the provision of the constitutional norm that the right of private ownership of land is limited, since land can be privately owned on the grounds, conditions and within the limits established by law. And the violation of state property rights is one of the most serious violations in the field of land relations.
In an objective sense, the right of state ownership is a set of legal norms that consolidate and protect the ownership of material goods to society in the person of a representative body of state power elected by it, as well as establish the procedure for the acquisition, use and alienation of state property.
The right of state ownership in the subjective sense is specifically state–owned property, in respect of which, on the basis of the law, the state determines the authority of the owner to own, use and dispose of this property.
The right of ownership of land includes three basic concepts (elements, powers): ownership, use and disposal of land.
Land ownership is a legally secured opportunity to actually own land. It creates the necessary prerequisites for the realization of the other two powers of use and disposal. Owning a land plot is owning it as property (for a legal entity, it is an opportunity to list it on its balance sheet).
Land use is the right to use not only the surface of the land plot and its soil cover, but also the minerals and water resources available on the land plot, that is, the ability to extract its useful properties, and if this corresponds to the intended purpose of the plot, residential, industrial, cultural, and other buildings and structures can be erected on it. That is, the use of a land plot is the use of an object of property in accordance with its purpose at the discretion and desire of the user and the owner.
The disposal of a land plot is a legally secured right of the state to determine the legal fate of land in the territory of the Republic of Kazakhstan, as well as the right of a private owner to make transactions with respect to his land plot that are not prohibited by the laws of the Republic of Kazakhstan.
The object of the offense is public relations regulated by the current legislation and aimed at ensuring the right of state ownership of natural resources in the form of land.
Land relations should be understood as legal relations for the use and protection of land related to the management of land resources, the assignment of land plots to individual entities, the exercise of ownership and other rights to land.
The subject of the administrative offense under consideration is land.
Land is a territorial space within which the sovereignty of the Republic of Kazakhstan, a natural resource, the entire common means of production and the territorial basis of any labor process are established.
However, the norm in question considers such a category as a land plot.
According to the Land Code of the Republic of Kazakhstan, a land plot is a part of the land allocated within closed borders, assigned in accordance with the procedure established by the Code to subjects of land relations.
The objective side of the offense is:
- illegal occupation of state land plots;
- exchange of state land plots;
- making other transactions, directly or indirectly, violating the right of state ownership of land;
- untimely return of temporarily occupied state lands.
Illegal occupation of state-owned land plots should be understood as the occupation of someone else's land plot without the permission of the land plot owner or land user, as well as the occupation of a land plot owned by the state and not provided for land use, without an appropriate decision of the Government of the Republic of Kazakhstan or a local executive body.
According to paragraph 10 of Article 43 of the Land Code of the Republic of Kazakhstan, it is not allowed to use a land plot until its boundaries are established on the ground and title documents are issued (contracts, court decisions, legal acts of executive bodies, etc.).
Title document for a land plot is a document confirming the occurrence of legal facts (legal structures) on the basis of which rights to a land plot arise, change or terminate, including contracts, court decisions, legal acts of executive bodies, certificate of inheritance, transfer act or separation balance sheet during the reorganization of non–governmental legal entities, who own a land plot by right of ownership or who have bought the right of temporary paid land use (lease).
In the norm under consideration, the objective side includes an action called the exchange of state land plots, however, when analyzing other normative legal acts regulating land relations, this concept is absent. An analysis of the legal norms has shown the existence of such a thing as the forced alienation of a land plot provided for land use for state needs, which in its content is identical to the exchange of state land plots. When perceiving forced alienation as an exchange, questions arise about the voluntary nature of the execution of this action. In both cases, the owner of the land plot is forced to transfer the land plot belonging to him. However, the compulsory alienation of a land plot granted for land use for state needs, if the granted right is purchased from the state by a land user, is carried out with compensation to the land user for the cost of payment for the purchase of land use rights, and another land plot may also be provided at his request in accordance with this Code and the legislation of the Republic of Kazakhstan.
If the granted right has not been purchased from the state by the land user, another land plot may be provided in return in accordance with this Code and the legislation of the Republic of Kazakhstan.
At the same time, compensation for losses to the land user in case of forced alienation of a land plot for state needs is carried out in full in accordance with the procedure established by the laws of the Republic of Kazakhstan (art. 84 of the Land Code).
According to paragraph 3 of Article 26 of the Constitution, compulsory alienation of property for state needs in exceptional cases provided for by law may be carried out subject to equivalent compensation.
Paragraph 4 of Article 9 of the Civil Code establishes that a person whose right has been violated may demand full compensation for damages caused to him, unless otherwise provided by legislative acts or a contract.
In accordance with Article 195 of the Civil Code, the right of land use refers to property rights along with property rights. If the right of land use is purchased, then the land user is provided with an alternative: compensation for damages in full, or another land plot.
Thus, the exchange of state-owned land plots implies the exchange of a state-owned land plot for a privately owned plot under certain conditions.
These are:
1) international obligations arising from international treaties ratified by the Republic of Kazakhstan;
2) provision of lands for the needs of defense and national security, specially protected natural territories, recreational, historical and cultural purposes, creation and operation of special economic zones;
3) discovery and development of mineral deposits;
4) construction (reconstruction) of roads and railways, construction (reconstruction) of airports, airfields, air navigation facilities and aviation technical centers, railway transport facilities, bridges, subways, tunnels, energy systems and power transmission lines, communication lines, facilities providing space activities, main pipelines, engineering and communication networks, facilities oil refining facilities classified as strategic facilities, implementation of concession projects, public facilities in settlements;
5) meeting the needs of the population in pasture lands for grazing farm animals of a personal farmstead in accordance with paragraph 1 of Article 15 of the Law of the Republic of Kazakhstan "On Pastures";
6) ensuring the population's need for land plots for individual housing construction in accordance with the general plan or scheme for the development and development of settlements;
7) execution of general plans of settlements regarding the construction of facilities falling under the list of exceptional cases established by this article, as well as the construction of facilities provided for by documents of the State Planning System of the Republic of Kazakhstan, at the expense of budgetary funds.
Other transactions that directly or indirectly violate the right of state ownership of land include any transactions related to purchase and sale, donation, pledge, inheritance, etc. Such transactions do not give rise to any rights for other persons or organizations. These transactions are initially invalid from the moment of their conclusion, but in this regard, civil consequences arise for the parties.
The untimely return of temporarily occupied state lands is considered to be the return of land to the State after the expiration of the time limits established by the land legislation of the State.
A land plot may be provided to citizens and legal entities on the right of temporary paid land use (lease) or on the right of temporary gratuitous land use.
The right of temporary gratuitous land use is granted for a period of up to 5 years, unless otherwise established by the Land Code and legislative acts of the Republic of Kazakhstan.
The right of temporary paid land use (lease) may be short-term (up to 5 years) and long-term (from 5 to 49 years), with the exception of cases when the right of temporary paid land use (lease) is granted for farming or farming provided for by the Land Code.
The grounds for extending these terms are regulated by the norms of the Land Code of the Republic of Kazakhstan (Articles 35, 36, 37, 38).
The offense is considered completed from the moment of committing any action that violates the rights of state ownership of the land.
The subjects of the offense may be individuals who have reached the age of 16, as well as legal entities.
The subjective side of this offense is characterized by an intentional form of guilt.
Differentiated fines are provided for this offense.:
- for individuals in the amount of seventy-five MCI,
- for officials, small business entities or non–profit organizations - in the amount of one hundred MCI,
- for medium-sized businesses – in the amount of one hundred and fifty MCI,
- for large business entities – in the amount of seven hundred MCI.
According to Article 710 of the Administrative Code, cases of administrative offenses provided for in Articles 136 of the Administrative Code are considered by the authorized body for monitoring the use and protection of lands of local executive bodies of the region, the city of republican significance, the capital.
The Court has the right to consider cases of administrative offenses and impose administrative penalties.:
1) chief State Inspector for the Use and protection of lands of the Republic of Kazakhstan;
2) chief state inspectors for the use and protection of lands of the relevant administrative-territorial units;
3) state inspectors for the use and protection of lands.
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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