Commentary to article 445-1. Violation of the legislation of the Republic of Kazakhstan on lotteries and lottery activities The Code of the Republic of Kazakhstan on Administrative Offences
1. Failure by the lottery operator to comply with the requirements for publication in periodicals distributed throughout the Republic of Kazakhstan or posting on the lottery operator's Internet resource the results of each draw and winnings on lottery tickets, receipts or other lottery draw documents, as well as violation of the terms of publication or posting -
they entail a fine for medium-sized businesses in the amount of five hundred, for large businesses in the amount of one thousand monthly calculation indices, with the suspension of activities.
2. Failure to comply with the requirements for the lottery operator to send a copy of the approved lottery conditions to the authorized body in the field of lottery and lottery activities and to post the lottery conditions on its Internet resource, as well as violation of the deadlines for sending and posting -
they entail a fine for medium-sized businesses in the amount of five hundred, for large businesses in the amount of one thousand monthly calculation indices, with the suspension of activities.
3. Violation by the lottery operator of the requirements for the collection, formation, storage and accounting of information on distributed lottery tickets, receipts or other documents, registered lottery bets, proceeds from lottery tickets sold, receipts or other documents, winnings paid, as well as its failure, late submission or submission of false information to the authorized body -
they entail a fine for medium-sized businesses in the amount of five hundred, for large businesses in the amount of one thousand monthly calculation indices, with the suspension of activities.
4. Violation by the lottery operator of the requirements for the formation of the prize fund -
entails a fine for medium-sized businesses in the amount of five hundred, for large businesses - in the amount of one thousand monthly calculation indices, with the suspension of activities.
5. The acts provided for in the first, second, third and fourth parts of this Article, committed repeatedly within a year after the imposition of an administrative penalty, -
they impose a fine on medium-sized businesses in the amount of one thousand, on large businesses - in the amount of two thousand monthly calculation indices, with a prohibition of activity.
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This article was first introduced by the Law of the Republic of Kazakhstan dated April 9, 2016 No. 496 "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Lotteries and lottery activities".
The general object of the offense is the social relations that develop in the field of lottery and lottery activities in the Republic of Kazakhstan.
The objective side of part 1 of the article under consideration is expressed by three illegal actions in the form of:
1) failure by the operator to comply with the requirements for publication in periodicals distributed throughout the Republic of Kazakhstan;
2) posting on the lottery operator's Internet resource the results of each draw and winnings from lottery tickets, receipts or other lottery draw documents;
3) violation of the deadlines for the publication or posting of the results of each draw and winnings from lottery tickets, receipts or other lottery draw documents.
According to the Law of the Republic of Kazakhstan dated April 9, 2016 "On Lotteries and Lottery activities", the concepts used in this standard are formulated:
1) lottery ticket, receipt or other document - a document provided for by the terms of the lottery, including in electronic form, confirming the right to participate in the lottery;
2) lottery operator is a legal entity designated by the Government of the Republic of Kazakhstan, engaged in lottery operations.
The lottery operator was determined on the basis of the Decree of the Government of the Republic of Kazakhstan dated February 10, 2017 No. 48 "On determining the lottery operator and the deadline for granting him the right to conduct a lottery." The lottery operator in Kazakhstan is the joint-stock company "Satti Zhuldyz" with the right to conduct a lottery for a period of 15 years.
The payout of winnings must begin no later than thirty days after the relevant draw and last at least six months from the date of publication of the results of this draw (prize pool drawing). After this period, claims for unclaimed winnings are accepted in accordance with the procedure stipulated by the lottery terms. Winnings that are not claimed within the time limit set by the lottery conditions are stored by the lottery operator for three years from the date of publication of the results of the relevant draw (prize pool drawing), after which they are credited to the budget revenue in the form of a non-tax payment.
The objective side of part 2 of the commented article is expressed by illegal actions in the form of non-compliance with the requirements on:
1) sending by the lottery operator a copy of the approved lottery conditions to the authorized body in the field of lottery and lottery activities;
2) posting the lottery conditions on its Internet resource;
3) violation of the terms of sending and posting the lottery conditions on its Internet resource.
In accordance with paragraph 3 of Article 10 of the Law of the Republic of Kazakhstan dated April 9, 2016 "On Lotteries and Lottery Activities", the lottery operator is obliged to send the original copy of the lottery conditions approved by him to the authorized body no later than ten calendar days before the start of the lottery and post the lottery conditions on his Internet resource no later than one calendar day before the start of the meeting.
The objective side of part 3 of the article under study is expressed by illegal actions in the form of non-fulfillment by the lottery operator of the requirements:
1) collecting, forming, storing and recording information about distributed lottery tickets, receipts or other documents, registered lottery bets, proceeds from sold lottery tickets, receipts or other documents, paid winnings,
2) failure to submit this information to the authorized body;
3) late submission of this information to the authorized body;
4) submission of false information to the authorized body.
In accordance with paragraph 3 of Article 8 of the Law of the Republic of Kazakhstan dated April 9, 2016 "On Lotteries and Lottery Activities", the lottery operator must ensure that the lottery reporting center is located in the authorized body. The lottery operator, through the lottery information processing center, must ensure the collection, formation, storage and recording of information about distributed lottery tickets, receipts or other documents, registered lottery bids, proceeds from lottery tickets sold, receipts or other documents, winnings paid and its submission to the lottery reporting center at least once a month.
The objective side of part 4 of the article under consideration is expressed by illegal actions (inaction) in the form of non-fulfillment by the lottery operator of the requirement for the formation of the prize fund.
Based on Article 11 of the Law of the Republic of Kazakhstan dated April 9, 2016 "On Lotteries and Lottery activities, the procedure for the formation and distribution of the prize fund is established. The lottery operator is obliged to ensure the formation of a prize fund in the amount of at least fifty percent of the proceeds from sold lottery tickets, receipts or other documents, registered lottery rates of a particular lottery. The prize fund is formed in accordance with this article and the terms of the lottery. The prize fund of the lottery draw is formed before the start of its drawing. The lottery operator is prohibited from burdening the prize fund with any obligations, except for obligations to lottery participants to pay out winnings, as well as to use the funds of the prize fund other than to pay out winnings. The prize fund of a draw lottery must be fully drawn within the framework of the draw to which it belongs, with the exception of a draw lottery that uses the principle of accumulative prize pool formation over several draws (super prize).
Winnings that are not claimed within the time limit set by the lottery conditions are stored by the lottery operator for three years from the date of publication of the results of the relevant draw (prize pool drawing), after which they are credited to the budget revenue in the form of a non-tax payment.
The qualifying features of part 5 of the commented article are characterized by repeated illegal actions (omissions) provided for in parts one, two, three and four of this article, committed repeatedly within a year after the imposition of an administrative penalty.
More severe penalties are provided for repeated violations provided for in this part of the article under study. If an additional sanction is provided for an offense committed for the first time in the form of suspension of the license, then for repeated similar offenses, in addition to a fine, an administrative penalty is applied in the form of a ban on the activities of a legal entity.
The subjects of the offense under all parts of Article 445-1 of the Administrative Code are lottery operators - legal entities in the form of medium-sized and large businesses.
The subjective side of all parts of the commented article can be expressed in the form of direct intent or negligence.
Only judges of specialized district and equivalent administrative courts have the right to consider cases of administrative offenses provided for in Article 445-1 of the Administrative Code.
Officials of the authorized body in the field of lottery and lottery activities have the right to draw up protocols on administrative offenses provided for in the commented article. The authorized bodies are the Ministry of Culture and Sports and its territorial bodies.
Based on Article 910-1 of the Administrative Code, the procedure for early termination of an administrative penalty in the form of suspension of a license is provided. The execution of a decision to suspend a license for an offense provided for in Article 445-1 (parts one, two, three, and four) may be terminated prematurely by a judge on the basis of a petition from the person brought to administrative responsibility or his representative (legal representative) in cases where the circumstances that served as the basis for imposing a penalty have been eliminated.
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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