Commentary to article 250. Avoidance of mandatory audit The Code of the Republic of Kazakhstan on Administrative Offences
Avoiding or obstructing a mandatory audit -
entails a fine for small businesses or non-profit organizations in the amount of fifteen, for medium-sized businesses - in the amount of twenty, for large businesses - in the amount of two hundred monthly calculation indices.
The commented article establishes administrative responsibility for evading mandatory audit.
The generic object of the offense provided for in Article 250 of the Administrative Code is the procedure established in the legislation of the Republic of Kazakhstan and protected by the state for carrying out activities in the field of finance, accounting and auditing.
The direct object of the administrative offense provided for in the commented article is the procedure established in the legislation of the Republic of Kazakhstan for conducting a mandatory audit.
The subjects of the offense provided for in Article 250 of the Administrative Code, by virtue of the direct indication of this in the sanctions of the commented article, are business entities and non-profit organizations.
The subjective side of the act provided for in Article 250 of the Administrative Code, for individuals who have committed an offense, is characterized by guilt in the form of intent. The guilt of a person is revealed by his mental attitude towards the illegal acts committed by him and the harmful consequences that have occurred.
The objective side of the offense provided for in Article 250 of the Administrative Code is that the offender commits unlawful acts (inaction) in the form of:
1) avoidance of mandatory audit;
2) obstructing the mandatory audit.
In cases directly provided for by the legislation of the Republic of Kazakhstan, organizations are required to audit financial statements on their own initiative, at the request of interested parties, or by court order.
Thus, as required by paragraph 1 of Article 78 of the Law of the Republic of Kazakhstan "On Joint-Stock Companies", a joint-stock company is required to audit annual financial statements, with the exception of a company declared bankrupt by a court, as well as banks, insurance (reinsurance) organizations that have been deprived of a license by an authorized body and (or) are in the process of compulsory liquidation.
According to clause 1 of Article 55-1 of the Law of the Republic of Kazakhstan "On the Securities Market", conducting an audit based on the results of the financial year is mandatory for a professional participant in the securities market, a joint-stock company established in an organizational and legal form, a major participant managing an investment portfolio, which is a legal entity.
57 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities", conducting an audit based on the results of the financial year is mandatory for banks (with the exception of a bank that has been deprived of a license to conduct all banking operations or is in the process of compulsory liquidation), bank holdings and organizations in which the bank and (or) the bank The holding company is a major participant.
In addition, as required by the audit legislation of the Republic of Kazakhstan, the audited entities are required not to interfere with the audit and are required to create conditions and assist auditors in conducting the audit.
According to the pp.1), 2), 3), 4) paragraph 2 of Article 25 of the Law of the Republic of Kazakhstan "On Auditing", the audited entity is obliged to create conditions for an audit organization for timely and high-quality audit, tax audit, special purpose audit of quasi-public sector entities, audit of other information, submit the necessary documentation, in particular including information constituting a trade secret, provide explanations and explanations in oral or written form; do not interfere in the activities of the audit organization in order to limit the range of issues subject to audit, tax audit, special purpose audit of quasi-public sector entities, audit of other information, unless otherwise provided by the contract; send, at the request of the audit organization, a written request on its behalf to third parties to obtain the necessary information. Compliance with the requirements of the auditing organization arising from contractual obligations is mandatory for the audited entity.
Failure to comply with or improperly comply with the above-mentioned legislative requirements for conducting an audit in cases where it is mandatory, as well as for non-obstruction of its conduct, 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 committing an offense.
For committing an offense provided for in the commented article, persons are punished with a fine.
Depending on the legal status of the offender and the business category to which he belongs, the amount of the fine is:
- for small businesses and non-profit organizations - 15 MCI,
- for medium-sized businesses - 20 MCI,
- for large business entities - 200 MCI.
The amounts of fines for each of the above categories of subjects of an offense are fixed and are not subject to change by the body imposing them.
This penalty is imposed on offenders by the authorized body in the field of informatization and communications, the authorized body responsible for managing natural monopolies, the bodies of the Ministry of Finance of the Republic of Kazakhstan, local executive bodies or the court, if the case is considered in court.
The imposition of an administrative penalty on an offender for committing an offense does not release him from fulfilling the duty assigned to him, eliminating violations committed by him and compensating the victim for the damage caused by the offense.
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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