Commentary to article 492. Residence in the Republic of Kazakhstan without registration or without identity documents of the Code of the Republic of Kazakhstan on Administrative Offenses
1. Residence of citizens of the Republic of Kazakhstan without an identity card or an invalid identity card or without registration at the place of residence, at the place of temporary stay (residence) for a period of ten calendar days to one month -
entails a warning.
2. Residence of citizens of the Republic of Kazakhstan without an identity card or an invalid identity card or without registration at the place of residence, at the place of temporary stay (residence) for a period of more than one month -
entails a fine in the amount of seven monthly calculation indices.
3. The act provided for in the first and second parts of this Article, committed repeatedly within a year after the imposition of an administrative penalty, -
entails a fine in the amount of thirteen monthly calculation indices.
4. Permanent residence in the Republic of Kazakhstan of a foreigner or a stateless person without registration at a permanent place of residence or without a residence permit or without a certificate of a stateless person or with an invalid residence permit or a certificate of a stateless person for a period of more than ten calendar days, as well as late notification to the internal affairs bodies of the loss of a passport or residence permit or certificates of a stateless person -
they entail a fine in the amount of ten monthly calculation indices.
5. The acts provided for in part four of this article, committed repeatedly within a year after the imposition of an administrative penalty, -
they entail a fine in the amount of twenty monthly calculation indices.
Note. The requirements of the first part of this article on the residence of citizens of the Republic of Kazakhstan without registration at the place of temporary stay (residence) do not apply to temporary residents residing for up to one month at the place of temporary stay (residence).
The general object of the offense is the established management procedure. The direct object of the offense is public relations related to compliance with the rules of the passport registration system of the Republic of Kazakhstan.
The objective side of part 1 of the offense is characterized by inaction aimed at violating the established order of residence and registration by:
1) residence of citizens of the Republic of Kazakhstan without an identity card for a period of 10 days to 1 month;
2) residence of citizens of the Republic of Kazakhstan, with an invalid identity card for a period of 10 days to 1 month;
3) residence of citizens of the Republic of Kazakhstan, without registration at the place of residence for a period of 10 days to 1 month.
If the above actions (omissions) are committed within a period of up to 10 days, then they are not an offense. The listed qualifying signs of an offense may exist independently of each other or in combination.
Paragraph 4 of Article 8 of the Law of the Republic of Kazakhstan dated July 22, 2011 No. 477 "On Population Migration" empowers the Government of the Republic of Kazakhstan to determine the procedure for documenting and registering the population.
The concept of "place of residence" is given in Article 16 of the Civil Code of the Republic of Kazakhstan dated December 27, 1994. The place of residence is the locality where the citizen permanently or predominantly resides. The place of residence of persons under the age of fourteen (minors) or citizens under guardianship is recognized as the place of residence of their legal representatives. A citizen has a legal address used in relations with individuals and legal entities, as well as the state. The legal address of a citizen is the place of his registration.
According to Articles 17-1 of the Law of the Republic of Kazakhstan dated July 22, 2011 No. 477 "On Migration of the population, "a place of temporary stay (residence) is a building, room or dwelling with an address that is not a place of residence and in which a person stays (resides) temporarily.
The concept of "buildings" is defined by paragraph 60 of Article 1 of the Law of the Republic of Kazakhstan dated July 16, 2001 No. 242 "On Architectural, Urban planning and construction activities in the Republic of Kazakhstan". A building is an artificial structure consisting of load-bearing and enclosing structures forming a mandatory ground-based enclosed volume, depending on the functional purpose, used for living or staying people, performing production processes, as well as placing and storing material assets. The building may have an underground part.
Based on the Law of the Republic of Kazakhstan dated April 16, 1997 No. 94 "On Housing Relations":
1) dwelling is a separate residential unit (individual house, apartment, dorm room) intended and used for permanent residence, meeting established sanitary-epidemiological, technical and other mandatory requirements.;
2) temporary tenants are citizens who have been granted the right by the tenant (the owner of the dwelling, a member of a housing cooperative) to temporarily stay in the dwelling without charging them a fee for using the dwelling.
According to the Resolution of the Government of the Republic of Kazakhstan dated December 1, 2011 No. 1420 "On approval of the Rules for the provision and use of housing from the State housing stock or housing rented by a local executive body in a private housing stock", the concept of office housing is given. Departmental housing stock - official dwellings located on the balance sheet of state institutions, intended to be provided to civil servants appointed to a position on a rotating basis, by decision of the housing commission, for residence for the period of performance of official duties without the right to further privatization.
Citizens of the Republic of Kazakhstan are issued identity documents by the internal affairs bodies at the place of permanent registration. These include: a passport of a citizen of the Republic of Kazakhstan, an identity card.
A citizen's passport and an identity card confirm citizenship and verify identity, are issued for a period of validity of ten years. The passport of a citizen of the Republic of Kazakhstan is issued to citizens of the Republic of Kazakhstan at their request, regardless of age, and certifies the identity of a citizen of the Republic of Kazakhstan on the territory of the Republic of Kazakhstan and abroad.
The identity card of a citizen of the Republic of Kazakhstan is issued to citizens from the age of 16, valid for 10 years and valid on the territory of Kazakhstan and in some countries in accordance with International Treaties.
The objective side of part 2 of the offense is expressed by the continuing illegal actions (omissions) specified in part 1 of the analyzed article and will be qualified under part 2 of the article if they are committed within a period of more than one month.
Based on the note to Article 62 of the Administrative Code, an offense is considered to be ongoing, which is characterized by the continuous implementation of a single composition of a certain act provided for in the article of the Special Part of this section, and has not been completed by the time of its discovery.
By letter of the Ministry of Internal Affairs of the Republic of Kazakhstan dated January 26, 2017 No. 8-8-5-58/ZT-S-443, the Migration Police Department explained some of the features of bringing to administrative responsibility under Parts 1 and 2 of Article 492 of the Administrative Code. Thus, a citizen who has arrived at a place of temporary stay for a period of more than 1 month is required to register within 10 days. Accordingly, in case of departure on a business trip, citizens are not subject to temporary registration for a visit for up to 1 month.
Regarding shift work, according to article 135 of the Labor Code of the Republic of Kazakhstan, the duration of shift work may not exceed 15 calendar days. With the written consent of the employee, the duration of the shift may be increased to thirty calendar days in accordance with collective agreements and employment contracts.
Based on the above, the norm obliging to register at the place of temporary stay for internal migrants who have arrived at the place of temporary stay for a period of more than 1 month does not apply to shift workers.
Part 3 of the commented article provides for qualifying signs of the first and second parts of the article, committed repeatedly within a year after the imposition of an administrative penalty.
The subjects of parts 1, 2 and 3 of the commented offense are the following individuals who have reached the age of 16.
Based on the Resolution of the Government of the Republic of Kazakhstan dated December 1, 2011 No. 1427, registration at the place of residence, registration (registration) at the place of temporary stay (residence) are subject to:
1) citizens of the Republic of Kazakhstan permanently residing in its territory;
2) citizens of the Republic of Kazakhstan who are resettling within the state for permanent residence;
3) citizens of the Republic of Kazakhstan who are resettling within the state for the purpose of temporary residence,
4) citizens of the Republic of Kazakhstan who have arrived for permanent residence from abroad;
5) citizens of the Republic of Kazakhstan who have arrived for temporary residence from abroad.
The subjective side of the first three parts of the act can be expressed as either direct intent or negligence.
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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