Commentary to article 26. Committing an administrative offense intentionally The Code of the Republic of Kazakhstan on Administrative Offences
An administrative offense is considered to have been committed intentionally if the individual who committed it was aware of the unlawful nature of his action (inaction), foresaw its harmful consequences and desired or consciously allowed these consequences to occur or was indifferent to them.
The commented article reveals the concept of an intentional form of guilt when committing an administrative offense by an individual.
An administrative offense is considered to have been committed intentionally if the person who committed it was aware of the unlawful nature of his action (inaction), foresaw its harmful consequences and desired the occurrence of such consequences or consciously allowed them or treated them indifferently. In the first case, the intent is direct — the person desired the occurrence of harmful consequences. In the second and third cases, the intent is indirect, since the person did not directly want harmful consequences to occur, but deliberately allowed them to occur or was indifferent to these consequences.
The moment of personal perception and awareness (the so-called intellectual aspect of the perpetrator's psyche) is common to both types of intent in a number of ways. Thus, for direct and indirect intent, it is necessary for the perpetrator to be aware of the social danger of the offense. That is, the person was aware of his encroachments on a particular object in terms of the harm caused to the latter. Such awareness, even in general terms, is necessary to establish the existence of intent. As well as awareness of the illegality of what has been committed (illegality).
Arguments about contrasting this interpretation with the presumption of knowledge of the law are not valid due to the fact that ignorance of the law does not absolve from responsibility. However, ignorance of the law implies ignorance only of the specific rules of law governing these legal relations. To establish intent, it is enough only for the perpetrator to realize that his encroachment on a particular object is illegal, even in general.
Anticipating harmful consequences and the desire for such consequences, or consciously allowing them or treating them indifferently, is a volitional aspect of the perpetrator's psyche.
The law separates the anticipation of the socially dangerous consequences of one's action or inaction and the desire for their occurrence from the anticipation of the socially dangerous consequences of one's action or inaction, but deliberately allowing the possibility of their occurrence or indifference in this part.
In the first case, we are talking about direct intent, and in the second - about indirect. It is the volitional aspect of the perpetrator's psyche, characterized by a desire or conscious assumption of consequences or an indifferent attitude towards them, that is the main difference between direct and indirect intent.
Clarification of the existence of intent is necessary in all cases when a person is held accountable for an offense committed solely by intent. For example, intentional infliction of minor harm to health (Articles 73-1 of the Administrative Code); intentional destruction or damage of propaganda materials (Article 114 of the Administrative Code); concealment of the fact of an accident related to work (Article 96 of the Administrative Code), etc. The commission of an offense is intentionally evidenced by such words of the dispositions of articles of the Special Part of the Code as "concealment", "evasion", "refusal", "manufacture", "distribution", "sale", "obstruction", "bribery", "knowingly false", "disobedience", "interference".
However, in most cases, a conclusion about the subjective side of the composition of an administrative offense can be made only on the basis of an analysis of all the signs listed in the relevant article of the Special Part of the Code.
Unfortunately, law enforcement officials often ignore such differentiation due to the cumbersome nature of the limits and subject matter of proving these circumstances of the case and the limited time frame of administrative proceedings. This is the case despite the fact that certain dispositions of the articles of the Administrative Code are designed in such a way that direct intent is an integral part of their composition of an administrative offense.
At the same time, most of the offenses contained in the Administrative Code are formal in nature, i.e. to admit guilt in the form of intent, it is sufficient to commit the unlawful act or omission specified in the rule of law, regardless of the consequences. For example, Article 564 of the Administrative Code formulates the offense as a violation of flight safety rules, Part 2 of art. 590 of the Administrative Code establishes as a composition the management of a vehicle without state registration plates (sign) or after prohibition of its operation, or not registered in accordance with the established procedure. In other words, with the formal composition of the offense, intentional guilt consists in the person's awareness of the illegality of the committed action or omission.
Thus, for formal offenses, the division of intent into direct and indirect is not relevant, since socially dangerous consequences are not among the mandatory features of the disposition of a particular article of the Administrative Code.
In the material composition of administrative offenses, intentional guilt, in addition to awareness of the illegality of the act or omission committed, also includes the offender's attitude to the harmful consequences that have occurred. For example, Part 2 of Article 372 of the Administrative Code stipulates that administrative responsibility is imposed for damage to forests by sewage, chemicals, industrial and household emissions, waste and refuse, causing its desiccation or disease or clogging of the forest; part 1 of art. 610 of the Administrative Code, which provides for administrative liability for violation of traffic rules by drivers of vehicles, resulting in damage to vehicles, goods, roads, road and other structures or other property, causing material damage.
In addition to the direct and indirect intent provided for directly in the law, the theory of law and judicial practice distinguish between other types of intent. So, depending on the content of intellectual and volitional moments, intent is divided into definite, indefinite and alternative. Depending on the moment of formation, intent is distinguished, premeditated and suddenly arisen. However, unlike criminal law, these classifications have not found serious scientific understanding in administrative law and, as a result, they are not disclosed in most doctrinal commentaries. Accordingly, it makes no sense to point out that they are not independent types of intent and do not form new forms of guilt.
For the same reason, the concept of "error" is not widespread in administrative law. There is a distinction between a legal and factual error.
A legal error is a person's misconception about the delicacy of an act committed by him, about his qualifications under specific articles of the Administrative Code and about the type and amount of an administrative penalty.
Legal errors are dealt with on general grounds, and if a person believed that he was committing an administrative offense, but his actions did not show signs of an administrative offense, then he is not subject to administrative responsibility.
If, on the contrary, the person believed that there was no administrative offense in his actions, while it was prohibited by the Administrative Code, then this does not exempt him from administrative responsibility.
An actual error is a person's misconception, misconception about the actual circumstances of the act, related to the elements of an administrative offense. In theory and in practice, the following types of factual errors are distinguished: an error in the object, the identity of the victim, the subject, the means, the causal relationship, qualifying circumstances. However, they have not been widely used in law enforcement practice.
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.);
Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);
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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