Commentary to article 222. Violation of the requirements for the issuance, use and repayment of electronic money of the Code of the Republic of Kazakhstan on Administrative Offenses  

1. Issuance by the issuer of electronic money for an amount that does not correspond to the amount of obligations assumed, -

entails a warning.

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 medium-sized businesses in the amount of one hundred, for large businesses - in the amount of two hundred monthly calculation indices.

3. Issuance by the issuer of electronic money for an amount exceeding one hundred monthly calculation indices, without identification of the owner of electronic money, as well as the issuer's acceptance of the use of electronic money in the electronic money system when performing transactions for an amount that exceeds the established limits on the maximum amount of one transaction, -

they entail a warning.

4. The actions provided for in the third part of this Article, committed repeatedly within a year after the imposition of an administrative penalty, -

They impose a fine on medium-sized businesses in the amount of one hundred, and on large businesses in the amount of two hundred monthly calculation indices.

5. Non-repayment, late and incomplete repayment by the issuer of electronic money received by an individual entrepreneur or a legal entity from individuals when paying for civil transactions, -

entails a warning.

6. The actions provided for in part five of this Article, committed repeatedly within a year after the imposition of an administrative penalty, -

they entail a fine in the amount of one hundred monthly calculation indices.

comment_____________________________________________

The commented article establishes administrative liability for violating the requirements for the issuance, use and repayment of electronic money.

The generic object of offenses provided for in Article 222 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 field of finance.

The direct object of administrative offenses provided for in the commented article is the procedure established by the legislation of the Republic of Kazakhstan for the issuance, use and repayment of electronic money.

The subjects of the offenses provided for in Article 222 of the Administrative Code, by virtue of the direct indication of this in the dispositions of the commented article, are issuers of electronic money: subjects of medium and large businesses.

According to Article 1 of the Law of the Republic of Kazakhstan "On Payments and Payment Systems", an electronic money issuer is a payment service provider that has the right to issue and redeem electronic money in accordance with this Law.

Electronic money is the unconditional and irrevocable monetary obligations of the issuer of electronic money, stored in electronic form and accepted as a means of payment in the electronic money system by other participants of the system.

The subjective side of the acts provided for in Article 222 of the Administrative Code cannot be established for the legal entities that committed it, since it is not taken into account when bringing them to administrative responsibility for committing administrative offenses.

Penalties for the commission of offenses provided for in the commented article are imposed on the offender by the National Bank of the Republic of Kazakhstan or the court, in case the case is considered in court.

Part 1 of the commented article establishes administrative responsibility for issuing electronic money by the issuer for an amount that does not correspond to the amount of obligations assumed.

The objective side of the offense provided for in Part 1 of Article 222 of the Administrative Code is that the offender commits illegal actions, which are expressed in the issuance of electronic money for an amount that does not correspond to the amount of obligations assumed by the issuer.

The issue of electronic money is a payment service that provides for the issuance of electronic money by an electronic money issuer to an individual or agent by exchanging for an amount of money equal in face value.

The rules for the issuance, use and repayment of electronic money are approved by the resolution of the Board of the National Bank of the Republic of Kazakhstan.

As required by clauses 3 and 11 of the above Rules, the issue of electronic money is carried out by the issuer within the amount of money received from individuals or agents, in accordance with the agreements concluded with them and the internal rules of the electronic money system. The Issuer ensures that the total amount of electronic money issued by it corresponds to the total amount of money accepted from the owners of electronic money.

Violation of these requirements in the form of the issuance of electronic money for an amount not corresponding to the amount of obligations assumed by the issuer forms the final composition of the offense provided for in Part 1 of the commented article.

The composition of the offense provided for in Part 1 of the commented article is formal. In order to calculate and impose a fine on the offender under Part 1 of the commented article, it is not necessary to establish the fact and amount of damage caused by the issuance of electronic money in an amount that does not correspond to the amount of obligations assumed.

The offense provided for in Part 1 of the commented article is considered to have been committed at the moment when the offender issued electronic money for an amount that does not correspond to the amount of obligations assumed.

For the commission of an offence under Part 1 of the commented article, the perpetrators are subject to punishment in the form of a warning.

Part 2 of the commented article establishes a more severe penalty for repeated commission of the act 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 222 of the Administrative Code.

In the description of the objective side of the offense provided for in Part 2 of Article 222 of the Administrative Code, a sign of repetition is added to the act provided for in Part 1 of the commented article.

An offence is considered to have been committed repeatedly if the person has previously committed the act provided for in Part 1 of Article 222 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 222 of the Administrative Code.

Repetition as a qualifying feature is established not only in fact by identifying the number and nature of illegal acts committed by the violator during the year, but also legally by establishing the fact of bringing this person to administrative responsibility for committing actions provided for in Part 1 of Article 222 of the Administrative Code, the existence of an effective resolution of the National Bank of the Republic of Kazakhstan or a court on the imposition of administrative penalties. according to Part 1 of Article 222 of the Administrative Code, the fact of his

the announcement, delivery, or referral to the subject of the offense and the expiration of a one-year period from the date of imposition of the penalty.

The composition of the offense provided for in Part 2 of the commented article is formal. In order to calculate and impose a fine on an offender under Part 2 of the commented article, it is not necessary to establish the fact and amount of damage caused by the commission of an offense.

For repeated commission of the act provided for in Part 1 of Article 222 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 Article 222 of the Administrative Code is:

- for medium-sized businesses - 100 MCI,

- for large business entities - 200 MCI.

Part 3 of the commented article establishes administrative responsibility for issuing electronic money by the issuer for an amount exceeding one hundred monthly calculation indices without identifying the owner of electronic money, as well as allowing the issuer to use electronic money in the electronic money system when making transactions for an amount that exceeds the established limits on the maximum amount of one transaction.

According to clause 68) of Article 1 of the Law of the Republic of Kazakhstan "On Payments and Payment Systems", an electronic money system is a set of software and hardware, documentation and organizational and technical measures that ensure payments and other transactions using electronic money through the interaction of the operator of the electronic money system with the issuer of electronic money and (or) the owners electronic money.

The objective side of the offense provided for in Part 3 of Article 222 of the Administrative Code is that the offender commits unlawful acts in the form of:

1) issuance by the issuer of electronic money in an amount exceeding 100 MCI (one hundred monthly calculation indices), without identification of the owner of electronic money; or

2) allowing the use of electronic money in the electronic money system when making transactions for an amount that exceeds the established limits on the maximum amount of one transaction.

According to paragraph 5 of Article 42 of the Law of the Republic of Kazakhstan "On Payments and Payment Systems", the issuer of electronic money is obliged to identify an individual in case of purchase of electronic money for an amount exceeding one hundred times the monthly calculation index established for the relevant financial year by the law on the republican budget. The issuer of electronic money, on the basis of an agreement, has the right to authorize a legal entity that is a subject of financial monitoring in accordance with the Law of the Republic of Kazakhstan "On Countering the Legalization (Laundering) of Proceeds from Crime and the Financing of Terrorism" to identify the owner of electronic money - an individual on behalf and on behalf of the issuer of electronic money.

Identification of the electronic money owner is performed by the electronic money issuer in the personal presence of the electronic money owner and presentation of an identity document, or by remote identification based on information from available sources received from the operational center of the interbank money transfer system, as well as in any other way that does not contradict the requirements of the legislation of the Republic of Kazakhstan.

In accordance with paragraph 4 of Article 44 of the above-mentioned Law, the maximum amount of one transaction performed by an unidentified owner of electronic money, an individual, should not exceed an amount equal to one hundredth the monthly calculation index established for the relevant financial year by the law on the republican budget.

Violation by the issuer of electronic money of the above-mentioned legislative restrictions forms the final composition of the offense provided for in Part 3 of the commented article.

The composition of the offense provided for in Part 3 of the commented article is formal. In order to calculate and impose a fine on an offender in accordance with Part 1 of the commented article, it is not necessary to establish the fact and amount of damage caused by the commission of an offense.

For committing an offense under Part 3 of the commented article, the perpetrators are punished with a warning.

Part 4 of the commented article establishes a more severe penalty for repeated commission of any of the actions provided for in Part 3 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 4 of the commented article coincide in their characteristics with the object, the subjective side and the subjects of the offense provided for in Part 3 of Article 222 of the Administrative Code.

In the description of the objective side of the offense provided for in Part 4 of Article 222 of the Administrative Code, a sign of repetition is added to the acts provided for in Part 3 of the commented article.

An offence is considered to have been committed repeatedly if the person has previously committed the acts provided for in Part 3 of Article 222 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 4 of Article 222 of the Administrative Code.

Repetition as a qualifying feature is established not only in fact by identifying the number and nature of illegal acts committed by the violator during the year, but also legally by establishing the fact of bringing this person to administrative responsibility for committing actions provided for in Part 3 of Article 222 of the Administrative Code, the existence of an effective resolution of the National Bank of the Republic of Kazakhstan or a court on the imposition of administrative penalties. according to part 3 of art . 222 of the Administrative Code, the fact of its announcement, delivery or referral to the subject of the offense and the expiration of a one-year period from the date of imposition of the penalty.

The composition of the offense provided for in Part 4 of the commented article is formal. In order to calculate and impose a fine on an offender under Part 4 of the commented article, it is not necessary to establish the fact and amount of damage caused by the commission of an offense.

For repeated commission of the act provided for in Part 3 of Article 222 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 4 of Article 222 of the Administrative Code is:

- for medium-sized businesses - 100 MCI,

- for large business entities - 200 MCI.

Part 5 of the commented article establishes administrative liability for non-repayment, late and incomplete repayment by the issuer of electronic money received by an individual entrepreneur or a legal entity from individuals when paying for civil transactions.

The objective side of the offense provided for in Part 5 of Article 222 of the Administrative Code is that the offender commits unlawful acts (inaction) in the form of:

1) non-repayment of electronic money received by an individual entrepreneur or a legal entity from individuals when paying for civil transactions,

2) late repayment of electronic money received by an individual entrepreneur or a legal entity from individuals when paying for civil law transactions,

3) incomplete repayment of electronic money received by an individual entrepreneur or a legal entity from individuals when paying for civil law transactions.

As required by clause 8 of Article 44 of the Law of the Republic of Kazakhstan "On Payments and Payment Systems", the issuer of electronic money shall repay electronic money received by an individual entrepreneur or a legal entity from individuals when paying for civil transactions within three working days from the date of receipt of electronic money in their favor, unless another deadline is provided. an agreement concluded between an electronic money issuer and an individual entrepreneur or a legal entity.

Electronic money received by an individual entrepreneur or a legal entity is not redeemable upon its return to an individual payer on the grounds provided for by the above-mentioned Law for the refund of money during transfers, or in the event of termination of a completed civil transaction on the grounds provided for by the legislation of the Republic of Kazakhstan.

Repayment of electronic money owned by individual entrepreneurs or legal entities is carried out by transferring an amount of money equal in face value to the bank account of an individual entrepreneur or legal entity, unless another commission fee from the issuer of electronic money or the operator of the electronic money system is provided for by an agreement concluded between the issuer of electronic money or the operator of the electronic money system and the owner electronic money.

Violation by the issuer of electronic money of the above-mentioned legislative requirements for the procedure, timing and (or) amount of repayment of the electronic money issued by him forms the final composition of the administrative offense provided for in Part 5 of the commented article.

The composition of the offense provided for in Part 5 of the commented article is formal. In order to calculate and impose a fine on an offender under Part 5 of the commented article, it is not necessary to establish the fact and amount of damage caused by the commission of an offense.

However, the imposition of an administrative penalty on the offender under Part 5 of the commented article does not exempt him from fulfilling his duties, eliminating violations committed by him and compensating for the damage caused by him.

For committing an offense under Part 5 of the commented article, the perpetrators are punished with a warning.

Part 6 of the commented article establishes a more severe penalty for repeated commission of any of the actions provided for in Part 5 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 6 of the commented article coincide in their characteristics with the object, the subjective side and the subjects of the offense provided for in Part 5 of Article 222 of the Administrative Code.

In the description of the objective side of the offense provided for in Part 6 of Article 222 of the Administrative Code, a sign of repetition is added to the actions provided for in Part 5 of the commented article.

An offense is considered to have been committed repeatedly if a person has previously committed any of the actions provided for in Part 5 of Article 222 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 6 of Article 222 of the Administrative Code.

Repetition as a qualifying feature is established not only in fact by identifying the number and nature of illegal acts committed by the violator during the year, but also legally by establishing the fact of bringing this person to administrative responsibility for committing actions provided for in Part 5 of Article 222 of the Administrative Code, the existence of an effective resolution of the National Bank of the Republic of Kazakhstan or a court on the imposition of administrative penalties. according to part 5 of art . 222 of the Administrative Code, the fact of its announcement, delivery or referral to the subject of the offense and the expiration of a one-year period from the date of imposition of the penalty.

The composition of the offense provided for in Part 6 of the commented article is formal. In order to calculate and impose a fine on an offender under Part 6 of the commented article, it is not necessary to establish the fact and amount of damage caused by the commission of an offense.

For repeated commission of the act provided for in Part 5 of Article 222 of the Administrative Code within a year after the imposition of the penalty, the offender is punished with a fine.

In the description of the objective side of the offense provided for in Part 6 of Article 222 of the Administrative Code, a sign of repetition is added to the actions provided for in Part 5 of the commented article.

An offense is considered to have been committed repeatedly if a person has previously committed any of the actions provided for in Part 5 of Article 222 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 6 of Article 222 of the Administrative Code.

Repetition as a qualifying feature is established not only in fact by identifying the number and nature of illegal acts committed by the violator during the year, but also legally by establishing the fact of bringing this person to administrative responsibility for committing actions provided for in Part 5 of Article 222 of the Administrative Code, the existence of an effective resolution of the National Bank of the Republic of Kazakhstan or a court on the imposition of administrative penalties. according to part 5 of art . 222 of the Administrative Code, the fact of its announcement, delivery or referral to the subject of the offense and the expiration of a one-year period from the date of imposition of the penalty.

The composition of the offense provided for in Part 6 of the commented article is formal. In order to calculate and impose a fine on an offender under Part 6 of the commented article, it is not necessary to establish the fact and amount of damage caused by the commission of an offense.

For repeated commission of the act provided for in Part 5 of Article 222 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 6 of Article 222 of the Administrative Code is 100 MCI, is fixed and is not subject to change by the body imposing it.

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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