Commentary to article 320. Violation of the requirements of the legislative act of the Republic of Kazakhstan on equity participation in housing construction and housing legislation of the Republic of Kazakhstan The Code of the Republic of Kazakhstan on Administrative Offences
1. Violation by a developer or an authorized company of the requirements of the legislative act of the Republic of Kazakhstan on equity participation in housing construction, including the content of information to be disclosed, as well as the procedure for its dissemination, or the dissemination by a developer or an authorized company of inaccurate, incomplete or unreliable information -
entails a fine on legal entities in the amount of three hundred monthly calculation indices.
2. Failure by a developer or an authorized company to provide information and reports provided for by the laws of the Republic of Kazakhstan to the local executive body of a city of republican significance, capital, district, or city of regional significance, or to submit false information and reports, as well as an unreliable or incomplete report on the results of monitoring the construction of an apartment building (residential building) by an engineering company -
entails a fine on legal entities in the amount of three hundred monthly calculation indices.
3. Actions (inaction) provided for in parts one and two of this Article, committed repeatedly within a year after the imposition of an administrative penalty, as well as non-elimination of violations provided for in parts one and two of this Article, which resulted in administrative liability, -
They entail the suspension of the permit to attract money from shareholders for up to three months.
4. Violation by the management body of the condominium facility of the deadlines for opening current and (or) savings accounts for the condominium facility in second-tier banks in cases provided for by housing legislation, -
entails a warning.
5. Violation by the management body of the condominium facility of the deadline for submitting the quarterly report on the management of the condominium facility -
entails a warning.
6. Actions (inaction) provided for in parts four and five of this Article, committed repeatedly within a year after the imposition of an administrative penalty, -
they impose a fine on individuals in the amount of ten, on legal entities - in the amount of twenty monthly calculation indices.
Part 1 provides for administrative liability for violating the requirements of the Law of the Republic of Kazakhstan dated April 7, 2016 No. 486-V "On Equity Participation in Housing Construction", including the content of information to be disclosed, as well as the procedure for its dissemination, or the dissemination by a developer or an authorized company of inaccurate, incomplete or unreliable information.
According to article 22 of the Law "On Equity Participation in Housing Construction", an authorized company provides the following information for review to individuals and legal entities who have applied to conclude an equity participation agreement in housing construction:
1) the name and legal address of the developer and the authorized company;
2) the availability of a certificate confirming state registration (re-registration);
3) on the existence of a guarantee agreement concluded with the Guarantee Fund and its main conditions in the case of organizing equity participation in housing construction by obtaining a guarantee from the Guarantee Fund;
4) on the availability of permission from the local executive body to attract money from equity holders in the case of the organization of equity participation in housing construction by participating in a second-tier bank project or by attracting money from equity holders after the construction of the frame of an apartment building (residential building);
5) about the projects implemented by the developer for the construction of residential buildings (residential buildings);
6) about the construction site of an apartment building (residential building), proposed for construction;
7) the availability of a document confirming the relevant right of the authorized company to the land plot.
Information about the construction site includes:
1) notification of the start of construction and installation work;
2) indication of the location and description of the facility in accordance with the design and estimate documentation;
3) information about the dates of its completion;
4) basic information about the contractor (general contractor), including the name, work experience in this field, availability of a license, information about commissioned construction sites where he acted as a contractor (general contractor).
The authorized company publishes information on its own Internet resource about:
1) the name of the object and its location;
2) the construction progress, confirmed by a photo report, updated at least once a month;
3) construction completion dates.
At the same time, according to article 23 of the Law, the developer and (or) an authorized company have the right to advertise an apartment building (residential building) construction project, indicating that equity participation agreements in housing construction will be concluded only after concluding a guarantee agreement with the Guarantee Fund or issuing a permit to attract money from shareholders by the local executive body. The advertisement must contain information about the developer and the authorized company.
The commented article provides for a sanction for any violation of the requirements of the Law "On Equity Participation in Housing Construction", and not only articles 22 and 23. At the same time, practice shows that according to the first part of the article, persons are involved only for violating the rules for advertising shared-equity construction facilities.
The object of this administrative offense is the requirements of the legislative act of the Republic of Kazakhstan on equity participation in housing construction, in particular, the requirements for the observance of the rights of participants in equity construction.
The objective side is that the perpetrator violates the mandatory requirements of the legislative act of the Republic of Kazakhstan on equity participation in housing construction.
These offenses can be committed either in the form of actions or through inaction. They are considered completed from the moment of committing any of the actions (inaction) that violate the norms of the Law "On Equity Participation in Housing Construction."
Currently, there is an incorrect law enforcement practice regarding bringing to administrative responsibility under part 1 of Article 320. The courts disregard important principles established by the Administrative Code when considering a case. In particular, the provisions of part 3 of Article 10 of the Administrative Code are ignored, according to which any doubts about guilt are interpreted in favor of the person against whom an administrative offense case has been initiated.
As an example, let's give the following. It follows from the administrative offense report that the construction company advertised the sale of apartments in an apartment complex by posting incomplete information on the website, which is confirmed solely by screenshots from the websites.
At the same time, there is no relationship regarding the production and/ or placement of advertising materials between the construction company and the owner of the site (the presence of concluded contracts, acts of completed work, correspondence, etc.).
With reference to part 3 of Article 10 of the Administrative Code, the court decides to terminate the proceedings due to the absence of an administrative offense.
In turn, on appeal, the decision of the court of first instance was overturned and an administrative penalty was imposed.
In this regard, a practice has emerged according to which any construction company can be brought to administrative responsibility when publishing information about facilities under construction by any person.
Another point to pay attention to is the following. Thus, both offenses that have entailed significant negative consequences and those that do not have a significant negative effect may be prosecuted under the first part of article 320. Let's compare two events, the first of which is a violation of the rules for advertising shared-equity construction projects (for example, the advertisement does not indicate that equity participation agreements will be concluded after receiving a guarantee from the Guarantee Fund). At the same time, the conclusion of contracts, which means the sale of shares, is not actually carried out. Only advertising about the future start of apartment sales is carried out.
The second event is related to the direct sale of shares in an object under construction without the appropriate permission of the local executive body or the guarantee of the Guarantee Fund. In this case, the funds of shareholders are attracted, despite the direct prohibition of the Law "On Equity participation in housing construction." Accordingly, the possible negative consequences are much higher in comparison with the first case, since there is a risk of loss of funds by equity holders in the event of unfinished construction of an apartment building.
Despite the varying degree of negative consequences of the actions committed, the amount of the administrative penalty is the same for both cases.
The subjects of the offense are only legal entities - the developer, an authorized company.
A developer is a legal entity engaged in the organization of equity participation in the housing construction of residential buildings (residential buildings) at the expense of its own and (or) attracted money through participation in the authorized capital of an authorized company.
An authorized company is a legal entity, one hundred percent of the voting shares (shares in the authorized capital) of which belong to the developer, engaged in the provision of shared-equity construction of an apartment building (residential building) and the sale of shares in an apartment building (residential building), which is not entitled to engage in any other commercial activity, except for activities in special economic zones.
At the same time, the requirements for advertising a residential building project should apply not only to the developer and the authorized company, but also to other subjects of legal relations (advertiser, advertiser, advertiser).
In particular, paragraph 4 of Article 7 of the Law of the Republic of Kazakhstan "On Advertising" states that deliberately false advertising is an advertisement by which an advertiser (advertiser, advertiser) intentionally misleads the consumer of advertising.
Also, article 18 of the Law "On Advertising" states that in case of non-compliance with the requirements of the Law, the advertiser, the advertiser and the advertiser, at the request of the authorized bodies, are required to provide documentary evidence of the advertising information.
However, in practice, the requirements for advertising an apartment building project apply only to the developer and the authorized company, other persons avoid responsibility for violations of the requirements of article 23.
For example, currently, if an advertisement does not comply with the requirements of article 23 of the Law, it is not the actual advertiser, advertiser and advertiser who is held accountable, but an authorized company. In this case, the authorized company is not the customer of the construction project advertisement. In addition, the developer and the authorized company do not have mechanisms to prohibit the dissemination of information, including advertising their construction projects to other persons.
The subjective side can be characterized by both intent and negligence (for example, the perpetrator inadvertently missed the reporting deadline)
According to paragraph 50) of part 1 of Article 804 of the Administrative Code, a protocol on this offense is drawn up by authorized officials of local executive bodies of regions, cities of republican significance, the capital, districts, cities of regional significance.
On the basis of Article 684 of the Administrative Code, their cases are considered by judges of specialized district and equivalent administrative courts.
Part 2 of the commented article provides for administrative responsibility for:
failure to provide information and reporting provided for by the laws of the Republic of Kazakhstan,
submission of false information and reports,
providing an unreliable or incomplete report on the results of monitoring the progress of the construction of an apartment building.
According to the disposition of the article, an important element is the addressee to whom information, reports and reports on monitoring results are sent, that is, the local executive body of the city of republican significance, the capital, the district, the city of regional significance.
In accordance with Article 12 of the Law "On Equity Participation in Housing Construction", an agreement on equity participation in housing construction, amendments and (or) additions to it, as well as an agreement on assignment of the right of claim under it, are subject to registration with the local executive body at the location of an apartment building (residential building) upon submission by the authorized companies using a unified information system for equity participation in housing construction.
The rules for accounting by local executive bodies of agreements on equity participation in housing construction, as well as agreements on assignment of claims under them, were approved by Order No. 434 of the Minister of National Economy of the Republic of Kazakhstan dated September 30, 2016.
In turn, the obligation to submit a monthly report on the results of monitoring the progress of construction of an apartment building (residential building) to the local executive body is assigned by article 21 of the Law "On Equity Participation in Housing Construction" to the engineering company.
The report forms of an engineering company in the field of equity participation in housing construction on the results of monitoring the construction of an apartment building (residential building) were approved by Order No. 339 of the Minister of National Economy of the Republic of Kazakhstan dated July 28, 2016.
Regarding the second part, it should be noted that there is a duplication of the disposition with the disposition of the first part. According to the first part, administrative liability is incurred for violating the requirements of the Law of the Republic of Kazakhstan "On Equity Participation in Housing Construction", with any requirement and non-fulfillment of obligations.
Simultaneously with the first part, the second also provided for liability for violation of this law. In this regard, it is advisable to exclude the second part as a duplicate.
The object of this administrative offense is the requirements of the legislative act of the Republic of Kazakhstan on providing information to the local executive body on the legislation on equity participation in housing construction.
The objective side is that the perpetrator violates the mandatory requirements of the legislative act of the Republic of Kazakhstan on equity participation in housing construction in terms of providing information and reporting to the local executive body.
These offenses can be committed either in the form of actions or through inaction.
The subjects of the offense are only legal entities - a developer, an authorized company, an engineering company.
A developer is a legal entity engaged in the organization of equity participation in the housing construction of residential buildings (residential buildings) at the expense of its own and (or) attracted money through participation in the authorized capital of an authorized company.
An authorized company is a legal entity, one hundred percent of the voting shares (shares in the authorized capital) of which belong to the developer, engaged in the provision of shared-equity construction of an apartment building (residential building) and the sale of shares in an apartment building (residential building), which is not entitled to engage in any other commercial activity, except for activities in special economic zones.
An engineering company in the field of equity participation in housing construction is a legal entity providing engineering services in the field of architecture, urban planning and construction, accredited in accordance with the procedure established by the legislation of the Republic of Kazakhstan and complying with the requirements of the Law "On Equity Participation in Housing Construction".
The subjective side can be characterized by both intent and carelessness.
According to paragraph 50) of part 1 of Article 804 of the Administrative Code, a protocol on this offense is drawn up by authorized officials of local executive bodies of regions, cities of republican significance, the capital, districts, cities of regional significance.
On the basis of Article 684 of the Administrative Code, their cases are considered by judges of specialized district and equivalent administrative courts.
Part 3 of the commented article defines repetition as a qualifying feature, that is, the commission of a similar offense within a year after the imposition of an administrative penalty in the first and second parts, as well as the failure to eliminate previously committed violations that led to administrative liability.
As an administrative penalty, the article defines the suspension of the permit to attract money from shareholders for up to three months. At the time of the commission of the offense, the entity may not have permission to attract money from shareholders. It is possible that the suspension of the permit for raising money from shareholders will negatively affect the situation of shareholders, as the suspension of the permit may lead to the suspension of construction. In this regard, it is advisable to establish penalties.
According to paragraph 50) of part 1 of Article 804 of the Administrative Code, a protocol on this offense is drawn up by authorized officials of local executive bodies of regions, cities of republican significance, the capital, districts, cities of regional significance.
On the basis of Article 684 of the Administrative Code, their cases are considered by judges of specialized district and equivalent administrative courts.
Part 4 provides for administrative liability for violation by the management body of the condominium facility of the deadlines for opening current and (or) savings accounts for the condominium facility in second-tier banks in cases provided for by housing legislation.
Life in an apartment building is impossible without auxiliary elements (stairs, elevators, etc.), at the same time, with the acquisition of ownership of residential and non-residential premises, common ownership rights arise for corridors, roofs, indoor utilities, basements, etc. When purchasing a room (apartment), the owner simultaneously enters into a relationship with the condominium object.
As defined in Article 189 of the Civil Code, the owner bears the burden of maintaining his property, unless otherwise provided for by legislative acts or a contract, and cannot unilaterally shift such a burden to a third party.
At the same time, any room after the expiration of time requires major repairs due to the deterioration of various elements, including residential buildings.
In order to implement the obligation to maintain an apartment building by the owners, paragraph 8 of Article 31 of the Law of the Republic of Kazakhstan dated April 16, 1997 No. 94-I "On Housing Relations" establishes the obligation of the condominium management body to open a current account with a second-tier bank for each condominium object, to which contributions (payments) from the owners of the premises (apartments) are transferred for the maintenance and maintenance of the common property of this condominium facility. In addition, the norm defined the deadline for the implementation of the obligation - within fifteen working days from the date of formation of the management body of the condominium facility.
The Law "On Housing Relations" was supplemented with this obligation by the Law of the Republic of Kazakhstan dated December 29, 2014 No. 270-V SAM "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on housing relations".
Also, according to paragraph 3 of the Standard Form of the Condominium Facility Management Agreement, approved by the Order of the Minister of National Economy of the Republic of Kazakhstan dated March 20, 2015 No. 242, for capital repairs of common property, the condominium facility Management Body opens a savings account with a second-tier bank to accumulate amounts for each condominium facility. The withdrawal from the savings account of accumulated amounts for capital repairs of the condominium facility is carried out by the head of the Management Body of the condominium facility by decision of at least two thirds of the total number of owners of premises (apartments).
It should be borne in mind that according to clauses 9) of Article 394 of the Tax Code of December 25, 2017, turnover on the sale of goods, works, and services within the framework of the cooperative of owners of premises (apartments) for the management of common property of a condominium facility, carried out in accordance with the legislation of the Republic of Kazakhstan on housing relations, is exempt from value-added tax.
In turn, the management of condominium facilities, except for cooperatives of owners of premises (apartments), is carried out by other market entities, but only cooperatives of owners of premises are exempt from value-added tax.
Thus, realizing the right to independently choose the form of management of communal property in accordance with art. 42-1 of the Law "On Housing Relations", apartment owners can choose a form of management that will require a waiver of tax exemption from value added tax.
The object of this administrative offense is the requirements of the legislative act of the Republic of Kazakhstan on housing relations on opening a current bank account for transferring contributions from apartment owners.
The objective side is that the perpetrator violates the mandatory requirements of the legislative act of the Republic of Kazakhstan on housing relations. These offenses may be committed in the form of inaction.
The subjects of the offense are the management body of the condominium facility, that is, an individual or legal entity performing the functions of managing the condominium facility.
The subjective side can be characterized by both intent and carelessness.
According to Part 3 of Article 729 of the Administrative Code, cases under part four are considered and administrative penalties are imposed by the akims of cities of regional significance, towns, villages, rural districts.
Part 5 provides for administrative liability for violation by the management body of a condominium facility of the deadline for submitting a quarterly report on the management of a condominium facility.
According to Article 50-2 of the Law on Housing Relations, the costs of maintaining the common property of a condominium facility must be reflected in a report on the management of the condominium facility, which is submitted individually to the owner of the premises (apartment) in writing or in the form of an electronic document every quarter in a form approved by the authorized body by the tenth day of the month following the reporting period..
Subparagraph 9) of paragraph 7 of the Standard Form of the Condominium Facility Management Agreement, approved by the Order of the Minister of National Economy of the Republic of Kazakhstan dated March 20, 2015 No. 242, also stipulates the obligation of the condominium facility management body to submit to the owner quarterly in writing or in the form of an electronic document by the tenth day of the month following the reporting period, a report reflecting expenses related to the use of common property, as well as additional expenses not related to the maintenance costs of the common property of the condominium facility.
The standard agreement assigns the corresponding right to receive a quarterly report to the apartment owner.
The report form on the management of the condominium facility was approved by Order No. 243 of the Minister of National Economy of the Republic of Kazakhstan dated March 20, 2015.
It should be noted that according to the criteria for assessing the degree of risk and the checklist in the field of housing management, approved by the Order of the Minister of National Economy of the Republic of Kazakhstan dated December 23, 2015 No. 787, non-compliance by the management body of the condominium facility with the deadlines for submitting the quarterly report on the management of the condominium facility is a significant violation in the field of housing management.
Explaining the introduction of the obligation of the condominium management body to report quarterly to apartment owners, the developer body indicated that this was done in order to increase the transparency of the work of the condominium management bodies.
The object of this administrative offense is the requirements of the legislation of the Republic of Kazakhstan on housing relations on the timely provision of a report on the management of a condominium facility.
The objective side is that the perpetrator violates the mandatory reporting requirements of the legislation on housing relations. These offenses may be committed in the form of inaction.
The subjects of the offense are the management body of the condominium facility, that is, an individual or legal entity performing the functions of managing the condominium facility.
The subjective side can be characterized by both intent and carelessness.
According to part 1 of Article 729 of the Administrative Code, cases under part five are considered by the local executive body of the region, the city of republican significance, the capital, the district, the city of regional significance.
Also, according to part 3 of Article 729 of the Administrative Code, cases under part five are also considered and administrative penalties are imposed by the akims of cities of regional significance, towns, villages, rural districts.
Part 6 of the commented article defines repetition as a qualifying feature, that is, the commission of a similar offense within a year after the imposition of an administrative penalty in the fourth and fifth parts.
According to Part 1 of Article 729 of the Administrative Code, cases under part six are considered by the local executive body of the region, the city of republican significance, the capital, the district, the city of regional significance.
Also, according to Part 3 of Article 729 of the Administrative Code, cases under part six are also considered and administrative penalties are imposed by the akims of cities of regional significance, towns, villages, rural districts.
It is worth noting that, according to Part 1 of Article 729 of the Administrative Code, the local executive body of the region, the city of republican significance, the capital, the district, and the city of regional significance considers cases of administrative offenses provided for in Article 320 (parts five, six, and seven). However, the reference to the seventh part of Article 320 of the Administrative Code is erroneous, as part of it is missing.
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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