Commentary to article 40. The concept and objectives of an administrative penalty The Code of the Republic of Kazakhstan on Administrative Offences
1. An administrative penalty is a measure of state coercion applied by a judge, bodies (officials) authorized by law for the commission of an administrative offense, and consists in the deprivation or restriction of the rights and freedoms of a person who has committed such an offense provided for in this Code.
2. An administrative penalty is applied in order to educate a person who has committed an offense in the spirit of compliance with the requirements of the law and respect for the rule of law, as well as to prevent the commission of new offenses by both the offender and other persons.
3. An administrative penalty is not intended to cause physical suffering to a person who has committed an administrative offense, or to humiliate his human dignity, as well as harm the business reputation of a legal entity.
4. An administrative penalty is not a means of compensation for property damage. The damage caused by an administrative offense shall be compensated in accordance with the procedure provided for in Article 59 of this Code.
Part 1. One of the types of administrative coercion is an administrative penalty. An administrative penalty is a measure of responsibility that is established by the State for the commission of administrative offenses, applied in order to prevent the commission of new possible crimes by both citizens who have previously committed them and other persons.
Administrative penalties, unlike criminal penalties, are imposed by a wide range of government agencies and officials (Articles 684-735 of the Administrative Code).
Only an administrative penalty is a measure of responsibility for an administrative offense, only it contains the final legal assessment of the infringer's unlawful act.
Administrative penalties have the greatest similarity with administrative preventive measures, since they are united by the commonality of the grounds for the use of coercive measures (administrative offense), as well as the common purpose of these coercive measures - the prevention of new offenses.
However, administrative preventive measures are not punitive measures and are primarily aimed at stopping the offense and possibly bringing the violator to justice in accordance with the nature of the offense he committed. Administrative preventive measures most often precede the application of administrative penalties.
Administrative penalties are punitive, "punitive" sanctions. For a committed offense, a person is either deprived of some kind of subjective right (the right to drive a vehicle, etc.), or special "punitive duties" are imposed on him. Punishment is a "legal lesson" to the guilty person.
In accordance with Part 2, it follows that the legislator uses a system of persuasion measures in which, in order to ensure the proper or possible behavior of the offender, one of the methods used in administrative legislation is educational work. In turn, the main functions of an administrative penalty are: a) educational; b) preventive; c) punitive.
Voluntary execution by an offender of a penalty imposed on him (for example, payment of an administrative fine within the prescribed period) does not change the compulsory nature of this measure, since the state always reserves the right to force the perpetrator to undergo legal restrictions resulting from the application of an appropriate penalty to him (for example, if a fine is not paid, it is forcibly collected from wages, scholarships or pensions of the violator (part 1 of Article 894 of the Administrative Code).
The principle of humanism of the legislation on administrative offences is reflected in part 3 of this article. Administrative punishment should be applied within the limits of civilized standards. The meaning of this type of punishment cannot be to humiliate the human dignity of the person who committed the offense or to cause him physical suffering, nor is it his task to harm the business prestige of a legal entity. These guidelines comply with the provisions of the Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948, and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which entered into force in 1987.
Administrative penalties are expressed either in moral or material impact on the offender, or combine both moral condemnation, material impact, and temporary restriction of the violator's rights (for example, administrative arrest, deprivation of special rights).
Administrative penalties are usually classified into types:
- basic (warning, administrative fine, administrative arrest, deprivation of a special right, revocation of a permit or suspension of its validity, as well as exclusion from the register, suspension or prohibition of activities or certain types of activities, as well as administrative expulsion from the Republic of Kazakhstan of foreigners or stateless persons);
- additional (deprivation of a special right, revocation of a permit or suspension of its validity, as well as exclusion from the register, suspension or prohibition of activities or certain types of activities, as well as administrative expulsion from the Republic of Kazakhstan of foreigners or stateless persons, confiscation, forced demolition of an illegally erected or erected building);
- moral character (warning);
- of a material nature (fine, confiscation);
- moral and material nature (administrative arrest).
Based on part 4, an administrative penalty is not a means of compensating for property damage. The damage caused by an administrative offense is compensated in accordance with the procedure provided for in Article 59 of the Administrative Code. In accordance with this article, in the absence of a dispute about the amount of property damage, the judge considering the case of an administrative offense that caused property damage, when deciding on the imposition of an administrative penalty, simultaneously collects such damage, and in the case of a dispute about the amount of property damage, such cases are considered in civil proceedings.
Compensation for property damage in cases of administrative offenses considered by other authorized bodies (officials), in case the guilty person refuses his voluntary compensation, is carried out in civil proceedings.
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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