Commentary to article 239-1. Violation of the procedure for conducting examinations by organizations for professional certification of accountants The Code of the Republic of Kazakhstan on Administrative Offences
1. Conducting examinations by accredited organizations for professional certification of accountants on examination modules that do not comply with the requirements of the legislation of the Republic of Kazakhstan on accounting and financial reporting, -
entails a fine in the amount of seventy-five 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 the revocation of the certificate of accreditation.
The commented article establishes administrative responsibility for violating the procedure for conducting examinations by organizations for professional certification of accountants.
The generic object of offenses provided for in Articles 239-1 of the Administrative Code is the procedure for carrying out activities in the field of finance and accounting.
The direct object of the administrative offenses provided for in the commented article is the procedure for the examination and certification of accountants established by the legislation of the Republic of Kazakhstan and protected by the state.
The subjects of offenses provided for in Articles 239-1 of the Administrative Code, by virtue of a direct indication of this in the disposition of the commented article, are accredited organizations for professional certification of accountants.
According to clause 3) of Article 1 of the Law of the Republic of Kazakhstan "On Accounting and Financial Reporting", an accredited organization for professional certification of accountants is a legal entity that certifies candidates for professional accountants, accredited in accordance with the procedure established by the Government of the Republic of Kazakhstan.
The subjective side of the acts provided for in Articles 239-1 of the Administrative Code is not subject to detection due to the fact that the subjects of the offenses provided for in the commented article are legal entities.
The offences provided for in the commented article are formal. In order to calculate and impose fines on offenders under the commented article, there is no need to establish the fact and amount of damage caused to third parties by conducting exams on examination modules that do not comply with the requirements of the legislation of the Republic of Kazakhstan on accounting and financial reporting.
Part 1 of the commented article establishes administrative responsibility for conducting examinations by accredited organizations for professional certification of accountants on examination modules that do not comply with the requirements of the legislation of the Republic of Kazakhstan on accounting and financial reporting.
The objective side of the offense provided for in Part 1 of Article 239-1 of the Administrative Code is that the offender commits illegal actions in the form of conducting exams on examination modules that do not comply with the requirements of the legislation of the Republic of Kazakhstan on accounting and financial reporting.
According to the norm of subclause 2) clause 3 of Article 22 of the Law of the Republic of Kazakhstan "On Accounting and Financial Reporting", an organization for certification of accountants is required to have examination modules that include an overview of the legislation of the Republic of Kazakhstan on accounting and financial reporting and a system for updating them.
Admission of candidates to professional accountants to participate in the examinations for obtaining a certificate, in accordance with paragraph 4 of Article 22 of the said Law, is carried out in accordance with the qualification requirements for professional accountants. Accordingly, persons who have passed the exams receive a single certificate in a form agreed with the authorized body. The validity period of the certificate is unlimited.
At the request of the norm of subclause 4) of clause 10 of Article 21 of the Law of the Republic of Kazakhstan "On Accounting and Financial Reporting", the organization for certification of accountants is required to conduct exams on examination modules that comply with the legislation of the Republic of Kazakhstan on accounting and financial reporting.
Violation by the organization for certification of accountants of the above-mentioned legislative requirement for conducting examinations forms the final composition of the offense provided for in Part 1 of the commented article.
An accredited organization for professional certification of accountants is liable to a fine for committing an offense under Part 1 of the commented article.
The fine for committing an offense under Part 1 of Article 239-1 of the Administrative Code is 75 MCI.
An administrative penalty for the commission of an offense provided for in Part 1 of the commented article 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 Ministry of Finance of the Republic of Kazakhstan have the right to draw up reports on administrative offenses provided for in Part 3 of the commented article.
Part 2 of the commented article establishes a more severe punishment for repeated 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 239-1 of the Administrative Code.
In the description of the objective side of the offense provided for in Part 2 of Article 239-1 of the Administrative Code, a sign of repetition is added to the actions provided for in Part 1 of the commented article.
An offense is considered to have been committed repeatedly if the person has previously committed the actions provided for in Part 1 of Article 239-1 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 art. 239-1 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 actions provided for in Part 1 of Article 239-1 of the Administrative Code, the existence of a court order that has entered into force imposing an administrative penalty under Part 1 of art. 239-1 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.
For repeated commission of actions provided for in Part 1 of Article 239-1 of the Administrative Code within a year after the imposition of the penalty, the offender is punished by deprivation of the certificate of accreditation.
An administrative penalty for the commission of an offense provided for in Part 1 of the commented article 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 Ministry of Finance of the Republic of Kazakhstan have the right to draw up reports on administrative offenses provided for in Part 3 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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