Commentary to article 236. Violation of the conditions and procedures for granting budget loans, state guarantees and state guarantees The Code of the Republic of Kazakhstan on Administrative Offences
Violation of the conditions and procedures for granting budget loans, state guarantees and state guarantees -
entails a fine for officials in the amount of four hundred monthly calculation indices.
The commented article establishes administrative liability for violation of the conditions and procedures for granting budget loans, state guarantees and state guarantees.
The generic object of offenses provided for in Article 236 of the Administrative Code is activities in the field of budget and finance.
The direct object of the administrative offenses provided for in the commented article is the procedure for the provision of budgetary loans, state guarantees and guarantees protected by the state.
The subjects of the offense provided for in Article 236 of the Administrative Code, by virtue of the direct indication of this in the sanctions of the commented article, are officials.
The subjective side of the acts provided for in Article 236 of the Administrative Code, for officials who have committed offenses, is characterized by guilt in the form of intent or negligence.
The objective side of the offense provided for in Article 236 of the Administrative Code is that the offender commits unlawful acts (inaction), which are expressed in violation of the conditions and procedures for granting budget loans, state guarantees and state guarantees.
According to Article 171 of the Budget Code of the Republic of Kazakhstan, budget lending is a process that includes procedures for making decisions on the provision, use, maintenance and repayment of a budget loan.
Budget loans are provided subject to the following conditions: 1) absence of tax arrears; 2) availability of security for the fulfillment of the borrower's obligations under the budget loan; 3) absence of overdue debt of the borrower on previously provided budget loans.
According to Article 213 of the Budget Code of the Republic of Kazakhstan, the state (governmental, sovereign) guarantee of the Republic of Kazakhstan is the obligation of the Government of the Republic of Kazakhstan to the lender to repay the debt in full or in part in case of non-payment by the borrower-resident of the Republic of Kazakhstan of the amount due from him on time. Government guarantees are provided to lenders as security for the fulfillment by residents of the Republic of Kazakhstan of their obligations under non-governmental loans received by them. The Government of the Republic of Kazakhstan has the exclusive right to provide state guarantees on behalf of the Republic of Kazakhstan for loans. On behalf of the Government of the Republic of Kazakhstan, the central authorized body for budget execution provides state guarantees on the terms and in accordance with the procedure determined by the central authorized body for budget execution.
At the request of the norms of Article 215 of the Budget Code of the Republic of Kazakhstan, state guarantees are provided on the basis of resolutions of the Government of the Republic of Kazakhstan. State guarantees are provided on the terms of repayment by the borrower of budgetary funds spent by the Government of the Republic of Kazakhstan in fulfilling the obligations of the guarantor. A preliminary one-time fee (fee) is charged from the borrower for the provision of a state guarantee. The state guarantee is provided after the execution and registration of the relevant agreement and documents confirming the fulfillment of obligations to refund funds in connection with the fulfillment of the obligations of the Government of the Republic of Kazakhstan under the guarantee.
According to Article 226 of the Budget Code of the Republic of Kazakhstan, state surety is the obligation of the Government of the Republic of Kazakhstan to the lender to repay in whole or in part the borrower's debt on a loan raised under a public-private partnership agreement, including a concession agreement, in accordance with the surety agreement. Surety obligations include the principal amount of the loan and its remuneration.
In accordance with the requirements of Article 228 of the Budget Code of the Republic of Kazakhstan, state guarantees are provided on the basis of decisions of the Government of the Republic of Kazakhstan. The provision of state guarantees is carried out on the following terms:: 1) the obligation of the borrower to transfer the object of public-private partnership, including the concession, to the state; 2) the obligation of the borrower to accumulate funds in a special account designed to ensure timely fulfillment of obligations under a loan secured by the state. For the provision of a state guarantee for a non-state loan, a preliminary one-time fee (fee) in the amount of two percent of the amount of the state guarantee is charged from the borrower. The provision of state guarantees is carried out in the presence of an insurance contract that meets the requirements for ensuring the repayment of funds from the republican budget diverted to fulfill obligations under state guarantees, except in cases established by the Government of the Republic of Kazakhstan.
Persons applying for a state guarantee or surety for loans in which these persons act as borrowers are subject to the provisions of Articles 216 and 229 of the Budget Code of the Republic of Kazakhstan, the fulfillment of which is mandatory before issuing a guarantee or surety.
Accordingly, the person responsible for providing budget loans, state guarantees and sureties is obliged to perform all the procedures required by law before granting them, to verify that the borrower has all the necessary conditions for this and that he meets all the legal requirements imposed on him.
Violation by an official of the above-mentioned legislative conditions and procedures for the provision of budget loans, state guarantees and guarantees forms the final composition of the offense provided for in the commented article.
The composition of the offense provided for in the commented article is formal. In order to calculate and impose a fine on an offender under the commented article, it is not necessary to establish the fact and amount of damage caused to third parties by violating the conditions and procedures for granting budget loans, state guarantees and state guarantees.
For committing an offense provided for in the commented article, an official is subject to punishment in the form of a fine.
The amount of the fine for officials for committing an offense under Part 1 of Article 236 of the Administrative Code is 400 MCI, is fixed and is not subject to change by the body imposing it.
This 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 bodies of the Ministry of Finance of the Republic of Kazakhstan, the Accounting Committee for Control over the Execution of the Republican Budget and the audit commissions of regions, cities of republican significance, and the capital have the right to draw up protocols on administrative offenses provided for in Part 1 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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