Commentary to article 142. Violation of the right of State ownership of forests The Code of the Republic of Kazakhstan on Administrative Offences
Purchase and sale, donation, pledge, illegal occupation and exchange of forest land, as well as illegal assignment of the right to exercise forest use, violating the rights of state ownership of forests, –
They impose a fine on individuals in the amount of twenty, on officials in the amount of twenty–five, on small businesses or non–profit organizations in the amount of seventy, on medium–sized businesses in the amount of one hundred and fifty, on large businesses in the amount of five hundred monthly calculation indices.
The public danger of an administrative offense under Article 142 of the Administrative Code is that the perpetrator, by committing illegal acts of purchase, donation, pledge, illegal occupation and exchange of forest land, as well as illegal assignment of the right to exercise forest use, violates the rights of state and private ownership of forests, causing material harm to the owner and significant damage to the ecological system.
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.
However, the State provides for the exercise of the right of ownership, use and disposal of private forest plots by private forest owners in accordance with land legislation.
The object of the offense is public relations regulated by the current legislation and aimed at ensuring the right of public and private ownership of natural resources in the form of forest resources and their protection.
The object of forest legal relations is the forest fund of the Republic of Kazakhstan, which includes the lands of the forest fund, forest resources and useful properties of forests.
A forest is a natural complex formed on a certain territory based on a combination of woody and shrubby vegetation and other components of wildlife, interacting with the environment and having important ecological, economic and social significance.
The forest fund of the Republic of Kazakhstan is formed by all forests located on the territory of the Republic of Kazakhstan, as well as lands of the forest fund that are not covered with forest vegetation, but are intended for the needs of forestry. The Forest fund consists of public and private forest funds.
The State forest fund includes:
1) forests of natural and artificial origin (including forest and non-forest lands) on the lands of specially protected natural territories;
2) forests of natural and artificial origin, as well as land plots not covered with forest vegetation provided for the needs of forestry on the lands of the state forest fund;
3) protective plantings on the right-of-way of railways and public roads of international and national importance, canals, main pipelines and other linear structures with a width of ten meters or more, with an area of more than 0.05 hectares.
The private forest fund includes those created at the expense of funds from individuals and non-governmental legal entities on lands granted to them for private ownership or long-term land use, in accordance with the Land Code of the Republic of Kazakhstan with the intended purpose for afforestation.:
1) artificial plantings;
2) plantings of natural origin that have arisen by seed and (or) vegetative means;
3) private forest nurseries;
4) plantation plantations for special purposes;
5) agroforestry plantations;
6) protective plantings on the right-of-way lanes of privately owned commercial highways.
The forest fund does not include:
1) individual trees and groups of trees with an area of less than 0.05 hectares located outside the lands of the state forest fund, shrubby vegetation on agricultural lands;
2) landscaping within the boundaries of populated areas, except urban forests;
3) trees and shrubs on household, suburban and garden plots (art. 8 of the Forest Code).
Forest resources consist of stocks of wood, oleoresin and tree sap, secondary wood resources, wild fruits, nuts, mushrooms, berries, medicinal plants and technical raw materials, other products of plant and animal origin located, accumulated and extracted in the forest fund.
The beneficial properties of a forest include its ecological and socially significant functions characteristic of it in a growing state (oxygen release, carbon dioxide absorption, soil protection from water and wind erosion, conversion of surface water runoff into subsurface, balneological and climate-regulating properties (art. 9 of the Forest Code).
The objective side of the offense is:
- purchase and sale, donation, pledge of forest fund plots
- illegal occupation and exchange of forest land,
- illegal assignment of the right to exercise forest use.
Forest ownership is the right of ownership and use of state forest fund plots granted by the Government of the Republic of Kazakhstan to state forest owners for forestry and forest management, operation of specially protected natural territories, as well as the right of ownership, use and disposal of private forest fund, granted to private forest owners in accordance with the procedure established by the Forest Code.
By a contract of sale, one party (the seller) undertakes to transfer property (goods) to the ownership, economic management or operational management of the other party (the buyer), and the buyer undertakes to accept this property (goods) and pay a certain amount of money (price) for it (art. 406 of the Civil Code).
Under a donation agreement, one party (the donor) transfers or undertakes to transfer to the other party (the donee) a thing for ownership or a property right (claim) to himself or a third person, or releases or undertakes to release it from its property obligation to a third person (art. 506 of the Civil Code).
A pledge is a method of securing the fulfillment of an obligation, by virtue of which the creditor (pledgee) has the right, in case of non-fulfillment by the debtor of the obligation secured by the pledge, to obtain satisfaction from the value of the pledged property primarily before other creditors of the person to whom this property belongs (the pledgor), with exceptions established by the Civil Code (art. 299 of the Civil Code).
142 of the Administrative Code in the form of purchase and sale, donation, pledge of forest fund plots is formed only when these actions are performed in relation to state forest fund plots.
The execution of these transactions in relation to private forest fund plots is permitted by the State. The specifics of the implementation of forest rights are also determined by the objectives of forest use.
Illegal occupation and exchange of forest fund plots is understood as the occupation of state forest fund plots without an appropriate decision and private forest fund plots without the permission of the forest owner.
Assignment of the right to exercise forest use is the voluntary transfer by individuals and legal entities of the right to exercise forest use in favor of third parties. Assignment of the right of forest use under the legislation of the Republic of Kazakhstan is not allowed.
These actions together and separately form the objective side of the administrative offense in question.
The offense is considered completed from the moment of the commission of one of the actions of the objective party or their combination.
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.
According to Article 709 of the Administrative Code, officials of authorized bodies in the field of forestry, fishing and hunting of the Republic of Kazakhstan and their territorial bodies have the right to consider cases of administrative offenses and impose administrative penalties on behalf of bodies in the field of forestry for committing an administrative offense provided for in Article 142 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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