Commentary to article 175. Violation of the procedure for conducting inspections of private business entities The Code of the Republic of Kazakhstan on Administrative Offences

Home / Codes / Commentary to article 175. Violation of the procedure for conducting inspections of private business entities The Code of the Republic of Kazakhstan on Administrative Offences

1. Violation of the procedure for conducting inspections of private business entities, including:

1) lack of grounds for conducting an audit;

2) the absence of an act on the appointment of an inspection and preventive control and supervision with a visit to the subject (object) of control and supervision;

3) absence of notification, as well as non-compliance with the deadlines for notification of inspection and preventive control and supervision with a visit to the subject (object) of control and supervision provided for in paragraph 1 of Article 147 of the Entrepreneurial Code of the Republic of Kazakhstan;

4) verification of compliance with requirements not specified in the checklists of this control and supervision body, as well as if such requirements do not fall within the competence of the state body on whose behalf these officials act;

5) the requirement to submit documents, information, product samples, environmental and industrial inspection samples, if they are not subject to inspection or do not relate to the subject of inspection;

6) sampling of products, samples of environmental objects and production facilities for conducting their research, testing, measurements without registration of protocols on the sampling of specified samples, samples in accordance with the prescribed form and (or) quantity exceeding the norms established by national standards, rules for sampling, sampling and methods of their research, testing, measurements, technical regulations or other normative technical documents, rules and methods of research, testing, measurements in force before the date of their entry into force;

7) disclosure and (or) dissemination of information obtained as a result of inspection and preventive control and supervision with a visit to the subject (object) of control and supervision, constituting a commercial or other legally protected secret, except in cases provided for by the legislation of the Republic of Kazakhstan;

8) exceeding the established deadlines for inspection and preventive control and supervision with a visit to the subject (object) of control and supervision provided for in Article 148 of the Entrepreneurial Code of the Republic of Kazakhstan;

9) conducting an inspection or preventive control and supervision with a visit to the subject (object) of control and supervision, in respect of which an inspection or preventive control and supervision was previously conducted with a visit to the subject (object) of control and supervision by its superior (subordinate) body or other state body on the same issue for the same period period, except for the cases provided for in sub-paragraphs 3), 4), 8), 9) and 10) paragraph 3 of Article 144 of the Entrepreneurial Code of the Republic of Kazakhstan;

10) carrying out costly activities for the purposes of state control at the expense of private business entities;

11) violation of the frequency of inspections according to the special procedure for inspections and preventive control and supervision with visits to the subject (object) of control and supervision provided for in Article 141 of the Entrepreneurial Code of the Republic of Kazakhstan;

12) failure to submit an inspection report to the subject under review, -

entails a fine on an official in the amount of twenty monthly calculation indices.

2. The action provided for in the first part of this article, committed repeatedly within a year after the imposition of an administrative penalty, -

entails a fine for an official of twenty-five monthly calculation indices.

The commented article establishes administrative liability for violating the procedure for conducting inspections of private business entities.

The generic object of the offense provided for in Article 175 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 offense provided for in Article 175 of the Administrative Code is the freedom of entrepreneurship and the procedure for conducting business in the Republic of Kazakhstan established by the legislation of the Republic of Kazakhstan and protected by the State, as well as the procedure for conducting inspections by state bodies and their officials in relation to private business entities.

The subjects of the offense provided for in the commented article are officials of state bodies and local executive bodies authorized to conduct inspections.

The subjective side of the administrative offense provided for in Article 175 of the Administrative Code is characterized by the guilt of officials in the form of intent or negligence. The guilt of an official is revealed by his mental attitude towards the illegal acts committed by him and their harmful consequences.

The composition of the administrative offense provided for in the commented article is formal. In order to bring an official to administrative responsibility for violating the procedure for conducting inspections of private business entities, it is not necessary to establish that the offender caused material damage to the entrepreneur.

At the same time, if illegal actions of an official cause material damage to a business entity as a result of the appointment and (or) conduct of an inspection in violation of the legislation of the Republic of Kazakhstan, such damage may be claimed by an interested person, whose rights and interests were violated, for full compensation, since bringing an official to administrative responsibility under the commented article does not exempt this is the official, state or local executive body on whose behalf he acted., and in general, the state refuses to eliminate violations and compensate for the damage caused to the entrepreneur.

Part 1 of the commented article establishes administrative liability for violating the procedure for conducting inspections of private business entities.

The objective side of the offense provided for in Part 1 of the commented article is characterized by the commission by officials of state bodies or local executive bodies of illegal actions (inaction) that violate the procedure for conducting inspections of private business entities and expressed in:

1) the absence of grounds for conducting an audit;

2) the absence of an act on the appointment of an inspection and preventive control and supervision with a visit to the subject (object) of control and supervision;

4) verification of compliance with requirements not established in the checklists of this control and supervision body, as well as if such requirements do not fall within the competence of the state body on whose behalf these officials act;

6) sampling of products, samples of environmental objects and industrial environment objects for their research, testing, measurements without registration of protocols on the sampling of specified samples, samples in accordance with the prescribed form and (or) quantity exceeding the norms established by national standards, rules for sampling, sampling and methods of their research, testing, measurements, technical regulations or other normative technical documents, rules and methods of research, testing, measurements in force before the date of their entry into force;

8) exceeding the established deadlines for conducting inspections and preventive control and supervision with a visit to the subject (object) of control and supervision provided for in Article 148 of the PC RK;

10) carrying out costly activities for the purposes of state control at the expense of private business entities;

11) violation of the frequency of inspections in accordance with the special procedure for inspections and preventive control and supervision with visits to the subject (object) of control and supervision provided for in Article 141 of the PC RK;

12) failure to submit an inspection report to the subject under review.

For committing an offense under Part 1 of Article 175 of the Administrative Code, the offender is punished with a fine.

The amount of the fine for committing an offense under Part 1 of Article 175 of the Administrative Code is 20 MCI for officials, is fixed and is not subject to change by the body imposing it.

The case of an administrative offense under Part 1 of the commented article is being considered and an administrative penalty is imposed on the offender by the court by virtue of a direct indication of this in the relevant norm of the Administrative Code.

Officials of the authorized body for entrepreneurship have the right to draw up protocols on administrative offenses provided for in Part 1 of the commented article.

Part 2 of the commented article establishes a more severe penalty for repeated commission of any of the actions provided for in Part 1 of the commented article within a year after the imposition of an administrative penalty.

At the same time, the object, the subjective side and the subjects of the offense provided for in Part 2 of the commented article coincide in their characteristics with the object, the subjective side and the subjects of the offense provided for in Part 1 of Article 175 of the Administrative Code.

In the description of the objective side of the offense provided for in Part 2 of Article 175 of the Administrative Code, a sign of repetition is added to any of the acts provided for in Part 1 of the commented article.

An offense is considered to have been committed repeatedly if a person has previously committed any of the acts provided for in Part 1 of Article 175 of the Administrative Code, has been subjected to administrative punishment for it, and the one-year period during which the person is considered to have been subjected to administrative punishment has not expired yet.

The repetition of an offense is an independent qualifying feature, entailing the qualification of an unlawful act as an independent element of an offense under Part 2 of Article 175 of the Administrative Code.

Repetition as a qualifying feature is established not only in fact by identifying the number and nature of the unlawful acts committed by the violator during the year, but also legally by establishing the fact of bringing this person to administrative responsibility for committing any of the offenses provided for in Part 1 of Article 175 of the Administrative Code, the existence of a court order that has entered into force imposing an administrative penalty under Part 1 tbsp . 175 of the Administrative Code, the fact of its announcement, delivery or referral to the offender and the expiration of a one-year period from the date of imposition of the penalty.

If a person has committed an illegal act repeatedly or continues to commit it after the start of the commission and until it is revealed, but until that moment he has not previously been brought to administrative responsibility under Part 1 of Article 175 of the Administrative Code, then bringing him to responsibility under Part 2 of Article 175 of the Administrative Code is impossible, since there is no qualifying sign of repetition. In this case, the person must be brought to administrative responsibility and punished under Part 1 of art. 175 of the Administrative Code, even if there are signs of repeated violations during the year and the uniformity of violations committed.

For repeated commission of any of the acts provided for in Part 1 of Article 175 of the Administrative Code within a year after the imposition of the penalty, the offender is punished with a fine.

The amount of the fine for committing an offense under Part 2 of Article 175 of the Administrative Code is 25 MCI for officials, is fixed and is not subject to change by the body imposing it.

The case of an administrative offense under Part 2 of the commented article is being considered and an administrative penalty is imposed on the offender by the court by virtue of a direct indication of this in the relevant norm of the Administrative Code.

Officials of the authorized body for entrepreneurship 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.);

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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