Commentary to article 143. Violation of the right of state ownership of the animal and plant world The Code of the Republic of Kazakhstan on Administrative Offences
1. Illegal assignment of the right to use wildlife, as well as other transactions that directly or indirectly violate the right of state ownership of wildlife, as well as the illegal use of wildlife in nature reserves and other specially protected natural areas, the use of which requires a permit., –
They impose a fine on individuals in the amount of ten, 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.
2. Illegal assignment of the right to use objects of the flora, as well as the commission of other transactions that directly or indirectly violate the right of state ownership of the flora, as well as the illegal use of objects of the flora, for the use of which permission is required, –
They impose a fine on individuals in the amount of ten, on officials in the amount of twenty, on small businesses or non–profit organizations in the amount of fifty, on medium–sized businesses in the amount of one hundred, on large businesses in the amount of three hundred monthly calculation indices.
Public danger of an administrative offense under art. 143 of the Administrative Code, consists in the fact that the guilty person unlawfully ceding the right to use objects of the animal world, making other transactions, directly or indirectly, violating the right of state ownership of the animal world, as well as illegally using objects of the animal world in nature reserves and other specially protected natural territories, for the use of which permission is required., encroaches on the right of state ownership of wildlife and the protection, reproduction and use of wildlife.
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.
The animal world is an integral part of the natural environment and acts as an integral link in the chain of the ecological system, a necessary component in the process of the circulation of substances and energy of nature, actively influencing the functioning of natural communities, the structure and natural fertility of soils, the formation of vegetation, the biological properties of water and the quality of the environment as a whole.
The object of the offense is social relations regulated by the current legislation and aimed at ensuring the right of state ownership of wildlife, its rights of use, protection, reproduction and use.
The right to use wildlife in the objective sense is a system of legal norms that establish the procedure for the provision and conditions for the removal of wildlife objects from their habitat or the extraction of their useful properties and animal waste products to meet environmental, economic, cultural, recreational, moral and aesthetic needs of humans, as well as the rights and obligations of users of wildlife.
The right to use the animal world in a subjective sense is a set of rights and obligations of a particular user of the animal world.
The right to use wildlife is formulated by the legislator in Article 1 of the Law of the Republic of Kazakhstan "On the Protection, Reproduction and Use of Wildlife" dated July 9, 2004 as the use of objects of the animal world, their useful properties with or without removal from the habitat.
The animal world is a collection of animals permanently or temporarily residing on the territory of the Republic of Kazakhstan, as well as related to the natural resources of the continental shelf and the exclusive economic zone of the Republic of Kazakhstan (art. 1 of the mentioned Law).
The subject of the offense is wild animals (mammals, birds, reptiles, amphibians, fish, mollusks, insects, and others) that are in a state of natural freedom on land, in water, in the atmosphere, and in the soil.
The objective side of the offense is:
- illegal assignment of the right to use objects of the animal world
- making other transactions that directly or indirectly violate the right of state ownership of wildlife,
- illegal use of wildlife in nature reserves and other specially protected natural areas, for the use of which a permit is required.
The use of the animal world is carried out in the order of general and special use.
The general use of the animal world includes the use of objects of the animal world, as well as their useful properties without removal from the habitat. In the order of general use of the animal world, the use of beneficial properties of animal life is carried out, as well as the use of objects of the animal world for scientific, cultural, educational, aesthetic and other purposes not prohibited by legislative acts of the Republic of Kazakhstan.
The special use of the animal world includes the use of objects of the animal world and products of their vital activity with removal from the habitat.
Assignment of the right to use wildlife is the voluntary transfer by individuals and legal entities of the right to use wildlife for the benefit of third parties. The assignment of the right to use wildlife is prohibited by the legislation of the Republic of Kazakhstan.
Administrative liability under this article is also provided for transactions that directly or indirectly violate the right of state ownership of wildlife.
Illegal use of wildlife in nature reserves and other specially protected natural areas for which a permit is required.
A specially protected natural area is a section of land, water bodies and the airspace above them with natural complexes and objects of the state nature reserve fund, for which a special protection regime has been established.
A nature reserve is a specially protected natural area with the status of an environmental and scientific institution, the purpose of which is to preserve and study on its territory the natural course of natural processes and phenomena, objects of flora and fauna, individual species and communities of plants and animals, typical and unique ecological systems and their restoration.
The following types of use of wildlife are allowed on the territory of the Republic of Kazakhstan:
- hunting;
- fishing, including harvesting of aquatic invertebrates and marine mammals;
- the use of animals for economic purposes that are not related to hunting and fishing facilities;
- the use of animals for scientific, cultural, educational, educational and aesthetic purposes; - the use of beneficial properties and animal waste products.
In order to exercise the right to use the above-mentioned types of wildlife, it is necessary to obtain a permit.
Hunting and fishing are regulated by Hunting Rules approved by the Order of the Minister of Agriculture of the Republic of Kazakhstan dated February 27, 2015 No. 18-03/157, Fishing Rules approved by the Order of the Acting Minister of Agriculture of the Republic of Kazakhstan dated February 27, 2015 No. 18-04/148).
Restrictions and prohibitions on the use of objects of the animal world, their parts and derivatives, the establishment of places and terms of their use are regulated by the order of the Acting Chairman of the Committee of Forestry and Wildlife of the Ministry of Agriculture of the Republic of Kazakhstan dated July 24, 2015 No. 190.
Violation of the rules established by law for the use of wildlife in nature reserves and other specially protected natural areas, for the use of which permission is required, forms the objective side of the administrative offense in question.
The offense is considered completed from the moment of the commission of any of the listed actions individually or in their entirety, violating the rights of state ownership of wildlife.
The subjects of the offense may be individuals who have reached the age of 14, as well as legal entities.
The subjective side of this offense is characterized by an intentional form of guilt.
Part 2 of the commented article provides for administrative responsibility for the commission of similar actions described in part one to this article, but in relation to objects of the plant world.
The Ecological Code of the Republic of Kazakhstan defines the flora as an independent object of legal protection.
The objects of relations in the field of flora are:
a) higher plants, mosses, lichens, fungi, algae and communities formed by them in their natural habitat or kept in cultural conditions for the purpose of reproduction and preservation of their genetic fund;
b) higher plants, mosses, lichens, fungi and their parts collected in their natural habitat or in areas of their maintenance in cultural conditions for the purpose of reproduction and preservation of their genetic fund, and products from them;
c) derivatives of objects of the plant world (derivatives);
d) living and herbarium collections of natural flora;
e) the environment of vegetation objects;
f) the rights to use the objects of the flora.
The subjects of the offense may be individuals who have reached the age of 14, 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, heads, deputy heads, heads of security services are entitled to consider cases of administrative offenses and impose administrative penalties on behalf of bodies in the field of fisheries and hunting for committing an administrative offense provided for in Article 143 of the Administrative Code. protected natural territories created in the organizational and legal form of a state institution.
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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