Commentary to article 160. Violation of the legislation of the Republic of Kazakhstan on state monopoly The Code of the Republic of Kazakhstan on Administrative Offences
1. Non-compliance by the subject of the state monopoly with the restrictions established by the legislation of the Republic of Kazakhstan on the state monopoly, -
entails a fine in the amount of three hundred monthly calculation indices.
2. Carrying out activities related to the sphere of state monopoly by an unauthorized person -
entails a fine for individuals in the amount of fifty, for small businesses - in the amount of one hundred, for medium-sized businesses - in the amount of one hundred and fifty, for large businesses - in the amount of two hundred and fifty monthly calculation indices, with or without confiscation of objects and (or) instruments of committing an administrative offense.
The commented article establishes administrative liability for violation of the legislation of the Republic of Kazakhstan on the state monopoly and contains two independent elements of administrative offenses in this area of legal relations.
The generic object of offenses provided for in Article 160 of the Administrative Code is the procedure established in the legislation of the Republic of Kazakhstan and protected by the state for conducting business in the Republic of Kazakhstan.
The direct object of the offenses provided for in Article 160 of the Administrative Code is the procedure established by the legislation of the Republic of Kazakhstan and protected by the state for the implementation of state entrepreneurship in the form of activities classified as state monopolies.
The subjective side of the unlawful acts provided for in Article 160 of the Administrative Code, the subjects of which are individuals, is characterized by guilt in the form of intent or negligence. The guilt of a person is revealed by his mental attitude towards the illegal acts committed by him and their harmful consequences.
The subjective side of offenses, the subjects of which are legal entities, is not subject to determination due to the existence of a legal requirement to establish guilt as a condition for bringing to administrative responsibility, only in relation to individuals. According to the legislation of the Republic of Kazakhstan on administrative responsibility, legal entities are administratively liable for the mere fact that they have committed an illegal act or omission, for which administrative liability is provided for in the Administrative Code, without taking into account the guilt of the officials of the legal entity who committed this act.
The administrative offences provided for in Article 160 of the Administrative Code are formal. To bring to administrative responsibility for their commission, it is not necessary to establish that the offender has caused material damage to the State, organization or citizen.
Part 1 of the commented article establishes administrative liability for non-compliance by a state monopoly entity with the restrictions established by the legislation of the Republic of Kazakhstan on state monopolies.
The subjects of the administrative offense provided for in Part 1 of the commented article are state monopoly entities – state-owned enterprises specially created by the Government of the Republic of Kazakhstan or local executive bodies of regions, cities of republican significance, the capital by decision of the Government of the Republic of Kazakhstan (paragraph 3 of Article 193 of the PK PK), as well as the State Corporation "Government for Citizens" and the Social Health Insurance Fund.
By virtue of the direct instructions of the legislator in paragraph 8 of Article 193 of the PC RK, the provisions of the legislation of the Republic of Kazakhstan on the state monopoly, including the restrictions established in the legislation of the Republic of Kazakhstan on the state monopoly, do not apply to the activities of the unified accumulative pension fund.
The objective side of the administrative offense provided for in Part 1 of the commented article is non-compliance by the subject of the state monopoly with the prohibitions and restrictions established by the legislation of the Republic of Kazakhstan on the state monopoly.
At the request of the peremptory norm of clause 4 of Article 193 of the PC RK, the subject of the state monopoly is prohibited:
1) to produce goods that do not belong to the sphere of the state monopoly, with the exception of activities technologically related to the production of goods;
2) own shares (stakes in the authorized capital), as well as otherwise participate in the activities of legal entities;
3) assign the rights related to the state monopoly;
4) to set prices for the goods produced or sold by him, which differ from the prices established in accordance with the legislation of the Republic of Kazakhstan.
The restrictions provided for in subparagraphs 1) and 2) of the first paragraph of paragraph 4 of Article 193 of the PC RK do not apply to the State Corporation "Government for Citizens" and the Social Health Insurance Fund.
Accordingly, non-compliance by a state monopoly entity with any of the legal restrictions established for it is considered as an independent component of an administrative offense committed by it, provided for in Part 1 of the commented article.
For committing an offense under Part 1 of Article 160 of the Administrative Code, an administrative penalty in the form of a fine is established in the sanction of the commented norm.
The amount of the fine for committing an offense under Part 1 of Article 160 of the Administrative Code is 300 MCI, is fixed and is not subject to change by the body imposing it.
This penalty is imposed on offenders by the antimonopoly authority or the court, if the case is considered in court.
The imposition of an administrative penalty on an offender does not release him from the obligation to eliminate violations of the legislation of the Republic of Kazakhstan on the state monopoly.
Part 2 of the commented article establishes administrative responsibility for the implementation by an unauthorized person of activities related to the sphere of state monopoly.
The subjects of the offense provided for in Part 2 of Article 160 of the Administrative Code are individuals or legal entities that are not authorized by the state, represented by its competent authorities, to carry out activities in the field of state monopoly and illegally carry out such activities.
The objective side of the offense provided for in Part 2 of the commented article is characterized by the commission by a person who is not authorized to do so by the state, illegal (and for individuals – also guilty) actions, expressed in the implementation by this person of activities attributed by the legislation of the Republic of Kazakhstan to the sphere of state monopoly.
Carrying out activities in areas classified as a state monopoly is one of the cases of state participation in entrepreneurial activities provided for in paragraph 1 of Article 192 of the PC RK.
According to paragraph 1 of Article 193 of the PC RK, a state monopoly is the exclusive right of the state to produce, sell or purchase any product on a competitive market, introduced in accordance with the procedure provided for by the PC RK.
The State exercises its exclusive right to produce, sell or purchase any product on a competitive market (state monopoly) by creating a state monopoly entity. At the request of the mandatory norm, paragraph 3 of art. 193 PK RK, the subject of a state monopoly, with the exception of the State Corporation "Government for Citizens", the Social Health Insurance Fund, can only be a state-owned enterprise established by the Government of the Republic of Kazakhstan or local executive bodies of regions, cities of republican significance, the capital by decision of the Government of the Republic of Kazakhstan.
Accordingly, other persons are not authorized to carry out activities that are legally classified by the State as a state monopoly.
Illegal carrying out of such activities by an unauthorized person entails administrative liability provided for in Part 2 of the commented article.
For committing an offense provided for in the commented article, the offender is subject to administrative punishment in the form of a fine with or without confiscation of objects and (or) instruments of committing an administrative offense.
The amount of the fine for committing an offense under Part 2 of Article 160 of the Administrative Code is differentiated depending on the legal status of the offender, and if the offender is a business entity, it also depends on which category of business entities he belongs to. In this regard, the body bringing the offender to administrative responsibility must first establish the legal status of this person and the category of entrepreneurship to which he belongs before bringing a person to justice.
Depending on the legal status of the offender and the business category to which he belongs, the amount of the fine is:
- for individuals – 50 MCI;
- for small businesses – 100 MCI;
- for medium–sized businesses - 150 MCI;
- for large business entities – 250 MCI.
Also, as a punishment for committing an offense established by Part 2 of the commented article, its sanction provides for the confiscation of objects and (or) instruments of committing an administrative offense, applied at the discretion of the court imposing the penalty.
An administrative penalty under Part 2 of the commented article is imposed on the offender only by the court, since the case of an administrative offense, for which the law provides for a sanction in the form of confiscation, must be considered in court.
Officials of the internal affairs bodies, bodies in the field of forestry, fishing and hunting, and the antimonopoly authority have the right to draw up protocols on administrative offenses provided for in Part 2 of the commented article.
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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