Commentary to article 525. Violation of the order of departure of goods The Code of the Republic of Kazakhstan on Administrative Offences
1. Violation of the procedure for the departure of goods from the customs territory of the Eurasian Economic Union without the permission of the state revenue authority of the Republic of Kazakhstan or failure to submit documents for departure in accordance with the customs legislation of the Eurasian Economic Union and (or) the Republic of Kazakhstan - entails a warning.
2. The act provided for in the first part of this article, committed repeatedly within a year after the imposition of an administrative penalty, -
entails a fine for individuals in the amount of five, for small businesses or non-profit organizations - in the amount of ten, for medium-sized businesses - in the amount of fifteen, for large businesses - in the amount of twenty-five monthly calculation indices.
The commented article establishes administrative liability for violating the order of departure of goods.
The generic object of offenses provided for in Article 525 of the Administrative Code is the customs regulation procedure established in the legislation of the Republic of Kazakhstan and protected by the state in the Republic of Kazakhstan.
The direct object of the offenses provided for in Article 525 of the Administrative Code is the procedure established and protected by the state for the departure of goods from the EAEU and the submission to the customs authorities of the necessary documents.
The subjects of offenses provided for in Article 525 of the Administrative Code are individuals and legal entities exporting goods outside the EAEU.
The subjective side of the unlawful acts provided for in Article 525 of the Administrative Code for individual offenders is characterized by guilt in the form of intent or negligence. The guilt of a person is revealed by his mental attitude towards the illegal acts committed by him and their harmful consequences.
The subjective side of offenses, the subjects of which are legal entities, is not subject to determination due to the existence of a legal requirement to establish guilt as a condition for bringing to administrative responsibility, only in relation to individuals. According to the legislation of the Republic of Kazakhstan on administrative responsibility, legal entities are administratively liable for the mere fact that they have committed an illegal act or omission, for which administrative liability is provided for in the Administrative Code, without taking into account the guilt of the officials of the legal entity who committed this act.
The administrative offences provided for in Parts 1 and 2 of Article 525 of the Administrative Code are formal. In order to bring them to administrative responsibility, it is not necessary to establish that the offender has caused material harm to the State or third parties.
Part 1 of the commented article establishes administrative liability for violating the procedure for the departure of goods from the customs territory of the EAEU without the permission of the State revenue authority of the Republic of Kazakhstan or failure to submit documents for departure in accordance with the customs legislation of the EAEU and (or) the Republic of Kazakhstan.
The objective side of the offense provided for in Part 1 of the commented article is characterized by the commission by a person of illegal (and for individuals, including individual entrepreneurs, also guilty) actions in the form of export, transportation, and shipment of goods for the purpose of their departure from the customs territory of the EAEU without the appropriate permission of the state revenue authority of the Republic of Kazakhstan or unlawful inaction in the form of failure to submit to the authority state revenue documents for the departure of goods in accordance with the customs legislation of the EAEU and (or) the Republic of Kazakhstan.
According to the imperative requirement of the norm of paragraph 9 of Article 158 of the Code of the Republic of Kazakhstan "On Customs Regulation in the Republic of Kazakhstan", the departure of goods from the customs territory of the EAEU is allowed only with the permission of the customs authority. The permission of the customs authority for the departure of goods from the customs territory of the EAEU, with the exception of goods for personal use, is issued using the information system of the customs authority and by affixing appropriate marks of the customs authority on the customs declaration or on its copy, or on another document allowing the export of goods from the customs territory of the EAEU, and on transport (transportation) documents.
If a customs declaration is not submitted for the departure of goods from the customs territory of the EAEU in accordance with the provisions of the Code of the Republic of Kazakhstan "On Customs Regulation in the Republic of Kazakhstan", then the permission of the customs authority for the departure of goods from the customs territory of the EAEU is issued using the information system of the customs authority and by affixing appropriate marks of the customs authority on transport (shipping) documents. If there is an interaction between the information system of the customs authority and the carrier's information system when providing transport (transportation) documents in electronic form, the customs authority's permit for the departure of goods from the customs territory of the EAEU is issued by sending a notification of such permission to the carrier in electronic form. The permission of the customs authority for the departure from the customs territory of the EAEU of goods for personal use, transported in accompanied baggage, is the release of such goods.
According to subclause 14) of clause 1 of Article 3 of the Code of the Republic of Kazakhstan "On Customs Regulation in the Republic of Kazakhstan", goods for personal use are goods intended for personal, family, household and other needs of individuals not related to business activities, transported across the customs border of the EAEU in accompanied or unaccompanied baggage by shipment in international mail or by other means.
At the request of the norms of clauses 1, 6 and 8 of Article 158 of the Code of the Republic of Kazakhstan "On Customs Regulation in the Republic of Kazakhstan" for the departure of goods from the customs territory of the EAEU, the carrier is obliged to submit to the customs authority the documents and information provided for in the cited Code. Upon departure of international mail items from the customs territory of the EAEU, in respect of such mail items, the carrier submits documents accompanying international mail items during their transportation, as defined by acts of the Universal Postal Union, and information in accordance with the provisions of the cited Code. On behalf of the carrier, the documents and information necessary to obtain permission from the customs authority for the departure of goods may be submitted by a customs representative or other persons acting on behalf of the carrier. When transporting goods by water, the documents and information necessary to obtain permission from the customs authority for the departure of goods may be submitted by the declarant or the forwarder.
Failure by these persons to fulfill the duties assigned to them by the Code of the Republic of Kazakhstan "On Customs Regulation in the Republic of Kazakhstan" forms the final composition of the offense provided for in Part 1 of the commented article.
The offense provided for in the commented article is considered to have been committed at the moment when a person has actually taken all the actual actions depending on him to move goods from the customs territory of the EAEU for the purpose of their departure without obtaining the necessary permission from the state revenue authority, or when the person has not submitted to the state revenue authority the documents and information necessary to obtain a departure permit goods, in the form, procedure and time limits established for such submission of documents and information.
For committing an offense under Part 1 of Article 525 of the Administrative Code, an administrative penalty is imposed in the form of a warning.
This penalty is imposed on offenders by specifying it in the decision on the imposition of an administrative penalty and its mandatory announcement, as well as handing over or sending a copy of the decision to the offender. In this case, in order to qualify further actions of the offender when committing similar offenses in the future, the person is considered to have been subjected to administrative punishment from the moment of delivery (referral) He likes it.
An administrative penalty under Part 1 of the commented article is imposed on the offender by the state revenue authorities or the court, if the case is considered in court.
Part 2 of the commented article establishes a more severe penalty for repeated commission of any of the acts provided for in Part 1 of the commented article within a year after the imposition of an administrative penalty.
At the same time, the object, the subjective side and the subjects of the offense provided for in Part 2 of the commented article coincide in their characteristics with the object, the subjective side and the subjects of the offense provided for in Part 1 of Article 525 of the Administrative Code.
In the description of the objective side of the offense provided for in Part 2 of Article 525 of the Administrative Code, a sign of repetition is added to any of the acts provided for in Part 1 of the commented article.
An offense is considered to have been committed repeatedly if a person has previously committed any of the acts provided for in Part 1 of Article 525 of the Administrative Code, has been subjected to administrative punishment for it, and the one-year period during which the person is considered to have been subjected to administrative punishment has not expired yet.
The repetition of an offense is an independent qualifying feature, entailing the qualification of an unlawful act as an independent element of an offense under Part 2 of Article 525 of the Administrative Code.
Repetition as a qualifying feature is established not only in fact by identifying the number and nature of illegal acts committed by the violator during the year, but also legally by establishing the fact of bringing this person to administrative responsibility for committing any of the acts provided for in Part 1 of Article 525 of the Administrative Code, the existence of an effective decree of an authorized state body or court on the imposition of administrative penalty under part 1 of art . 525 of the Administrative Code, the fact of its announcement, delivery or referral to the offender and the expiration of a one-year period from the date of imposition of the penalty.
If a person has committed an illegal act repeatedly or continues to commit it after the start of the commission and until it is revealed, but until that moment he has not previously been brought to administrative responsibility under Part 1 of Article 525 of the Administrative Code, then bringing him to responsibility under Part 2 of Article 525 of the Administrative Code is impossible, since there is no qualifying sign of repetition. In this case, the person must be brought to administrative responsibility and punished under Part 1 of art. 525 of the Administrative Code, even if there are signs of repeated violations during the year and the uniformity of violations committed.
For repeated commission of any of the acts provided for in Part 1 of Article 525 of the Administrative Code within a year after the imposition of the penalty, the offender is punished with a fine.
The amount of the fine for committing an offense under Part 2 of Article 525 of the Administrative Code is differentiated depending on the legal status of the offender, and if the offender is a business entity, it also depends on which category of business entities he belongs to. In this regard, the body bringing the offender to administrative responsibility must first establish the legal status of this person and the category of entrepreneurship to which he belongs before bringing a person to justice.
Depending on the legal status of the offender and the business category to which he belongs, the amount of the fine is:
- for individuals – 5 MCI,
- for small businesses or non–profit organizations - 10 MCI,
- for medium–sized businesses - 15 MCI,
- for large business entities – 25 MCI.
The amounts of fines are fixed and are not subject to change by the body imposing them.
An administrative penalty under Part 2 of the commented article is imposed on the offender by the state revenue authorities or the court, if the case is considered in court.
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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