Commentary to article 542. Violation of the procedure for processing goods and replacement of processed products The Code of the Republic of Kazakhstan on Administrative Offences
1. Violation of the procedure for processing goods, that is, non-compliance with the requirements, restrictions and conditions established by the customs legislation of the Republic of Kazakhstan contained in the document on the conditions of processing goods, if such a document is required in accordance with the terms of the customs procedure, the procedure and timing of processing goods, the amount of output of processed products, processing operations of such goods -
entails a fine in the amount of fifty monthly calculation indices.
2. Violation of the established procedure for replacing processed products of domestic goods with other goods - entails a fine in the amount of twenty monthly calculation indices.
The commented article establishes administrative liability for violation of the procedure for processing goods and replacement of processed products under customs control.
The generic object of offenses provided for in Article 542 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 542 of the Administrative Code is the procedure established and protected by the state for processing goods under customs control.
The subjects of offenses provided for in Article 542 of the Administrative Code are individuals and legal entities that place goods under the customs regime of processing and their processing.
The subjective side of the unlawful acts provided for in Article 542 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 Article 542 of the Administrative Code are formal. To bring to administrative responsibility for their commission, 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 violation of the procedure for processing goods.
The objective side of the offense provided for in Part 1 of the commented article is characterized by the commission by an obligated person of illegal (and for individuals, including individual entrepreneurs, also guilty) actions in relation to those under the customs procedure for processing goods, which are expressed in violation of the procedure for processing goods.
At the same time, by virtue of the direct instructions of the legislator in Part 1 of the commented article, violation of the procedure for processing goods is understood as:
1) non-compliance with the requirements, restrictions and conditions established by the customs legislation of the Republic of Kazakhstan contained in the document on the conditions of processing of goods, if such a document is required in accordance with the terms of the customs procedure,
2) non-compliance with the procedure and deadlines for processing goods,
3) non-compliance with the amount of output of processed products,
4) non-compliance with the processing of such goods.
The customs processing procedure can be applied depending on the place of processing and the needs of the obligated entity in three modes: 1) in the customs territory of the EAEU, 2) outside the customs territory of the EAEU, and 3) for domestic consumption.
The requirements, restrictions and conditions for the processing of goods in relation to each of the above processing modes are established in the customs legislation of the Republic of Kazakhstan and may be defined in a document on the conditions of processing, if such a document is required for the customs procedure of processing.
The concept of a document on the conditions of processing of goods, the procedure for its issuance and the conditions contained therein in relation to each processing regime used are defined respectively in Articles 248, 261, 273 of the Code of the Republic of Kazakhstan "On Customs Regulation in the Republic of Kazakhstan".
Such a document is issued by the authorized state body of the Republic of Kazakhstan to any person who applies for it, including those who do not directly process goods.
The form of the document on the conditions of processing of goods issued by authorized state bodies, the procedure for filling it out and the procedure for issuing such a document, making amendments (additions) to it, the procedure for extending the processing period for domestic consumption of goods, as well as its recall (cancellation) and (or) renewal are established by the Government of the Republic of Kazakhstan.
The procedure and terms of processing of goods for each of its modes are defined respectively in Chapters 26, 27, 28 of the Code of the Republic of Kazakhstan "On Customs Regulation in the Republic of Kazakhstan".
According to Article 245 of the said Code, the validity period of the customs procedure for processing in the customs territory is established on the basis of the period for processing goods in the customs territory of the Eurasian Economic Union, as defined in the document on the conditions for processing goods in the customs territory of the Eurasian Economic Union. The established period of validity of the customs procedure for processing in the customs territory is extended at the request of a person when extending the period for processing goods in the customs territory of the Eurasian Economic Union.
According to Clauses 3 and 5 of Article 261 of the Code of the Republic of Kazakhstan "On Customs Regulation in the Republic of Kazakhstan", the processing period of goods outside the customs territory of the EAEU may not exceed two years. The term of processing of goods outside the customs territory of the Eurasian Economic Union is calculated from the date of placing the goods under the customs procedure of processing outside the customs territory, and in the case of customs declaration of goods in several batches - from the date of placing the first batch of goods under the customs procedure of processing outside the customs territory.
According to paragraph 3 of Article 273 of the said Code, the processing period of goods for domestic consumption may not exceed one year or a longer period determined by the EAEU Commission for certain categories of goods. At the same time, according to paragraph 4 of the cited article, the processing period of goods for domestic consumption includes: 1) the duration of the production process of processing goods; 2) the time required to place processed products under the customs procedure of release for domestic consumption. The term of processing of goods for domestic consumption is calculated from the date of placing the goods under the customs procedure of processing for domestic consumption, and in the case of customs declaration of goods in several batches - from the date of placing the first batch of goods under the customs procedure of processing for domestic consumption.
The amount of output of processed products is determined based on data on the number of goods accepted (transferred) for processing and the rate of output of processed products.
The quantity of goods accepted (transferred) for processing is determined on the basis of customs and other documents for imported (exported) or accepted goods for processing.
The rate of output of processed products, according to paragraph 1 of Article 249, paragraph 1 of Article 262, paragraph 1 of Article 274 of the Code of the Republic of Kazakhstan "On Customs Regulation", refers to the quantity and (or) percentage of processed products resulting from processing operations in the customs territory, outside the customs territory or for domestic consumption of a certain amount products. In the event that processing operations are carried out with respect to goods whose characteristics remain practically constant, in accordance with established technical requirements and lead to the production of processed products of unchanged quality, the authorized state bodies of the Republic of Kazakhstan may establish standard standards for the yield of processed products.
Processing operations in the customs territory of the EAEU, according to Article 246 of the Code of the Republic of Kazakhstan "On Customs Regulation" include: 1) processing or processing of goods; 2) manufacture of goods, including assembly, assembly, disassembly and fitting; 3) repair of goods, including their restoration, replacement of components, modernization; 4) use of goods that promote or facilitate the production of processed products, even if these goods are fully or partially consumed in the process recycling.
Accordingly, processing operations in the customs territory of the Eurasian Economic Union do not include: 1) operations to ensure the safety of goods in preparation for sale and transportation (transportation), including packaging, packaging and sorting of goods, in which the goods do not lose their individual characteristics; 2) obtaining offspring, rearing and fattening animals, including birds, fish, as well as the cultivation of crustaceans and mollusks; 3) cultivation of trees and other plants; 4) copying and reproduction of information, audio and video recordings on any type of media; 5) use of foreign goods as auxiliary means in the technological process (equipment, machines, devices, etc.); 6) other operations determined by the EAEU Commission.
Processing operations outside the customs territory of the EAEU, according to Article 259 of the Code of the Republic of Kazakhstan "On Customs Regulation in the Republic of Kazakhstan", include: processing or processing of goods; manufacture of goods, including installation, assembly, disassembly and fitting; repair of goods, including their restoration, replacement of components, modernization.
Processing operations for domestic consumption, according to paragraph 1 of Article 271 of the Code of the Republic of Kazakhstan "On Customs Regulation in the Republic of Kazakhstan", include: 1) processing or processing of goods; 2) manufacturing of goods, including assembly, assembly, disassembly and fitting.
At the same time, according to paragraph 2 of this article, processing operations for domestic consumption do not include: 1) operations to ensure the safety of goods in preparation for sale and transportation (transportation), including packaging, packaging and sorting of goods, in which the goods do not lose their individual characteristics; 2) obtaining offspring, rearing and fattening animals, including birds, fish, as well as the cultivation of crustaceans and mollusks; 3) cultivation of trees and other plants; 4) copying and reproduction of information, audio and video recordings on any type of media; 5) other operations determined by the EAEU Commission.
Accordingly, the conduct of these and other operations that are not included in the processing of goods also constitutes the objective side of the offense provided for in Part 1 of the commented article.
Violation by obligated persons of the procedure and deadlines established for them by the customs legislation of the EAEU and (or) the Republic of Kazakhstan for processing goods, processing operations, as well as non-compliance with the requirements, restrictions and conditions of processing imposed on them forms the final composition of the offense provided for in Part 1 of the commented article.
For committing an act provided for in Part 1 of the commented article, the offender is punished with a fine.
The amount of the fine for committing an offense under Part 1 of Article 542 of the Administrative Code is 50 MCI, is fixed and is not subject to change by the body imposing 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 administrative liability for violating the established procedure for replacing processed products of domestic goods with other goods.
The objective side of the offense provided for in Part 2 of the commented article is characterized by the commission by the obligated person of illegal (and for individuals, including individual entrepreneurs, also guilty) actions, expressed in violation of the established procedure for replacing processed products of domestic goods with other goods.
The procedure for replacing processed products in the customs territory and outside the customs territory is established in Articles 252, 263 of the Code of the Republic of Kazakhstan "On Customs Regulation", respectively.
The norm of Part 2 of the commented article refers to a violation of the procedure for replacing only processed products of domestic goods. Consequently, the objective side of the offense provided for in Part 2 of the commented article will be the illegal actions of the offender committed in violation of the procedure established in the customs legislation of the Republic of Kazakhstan to replace processed products of domestic goods.
According to art . 263 of the Code of the Republic of Kazakhstan "On Customs Regulation", with the permission of the customs authority, it is allowed to replace processed products with foreign goods that, in their description, quality and technical characteristics, coincide with such processed products (hereinafter referred to in this article - equivalent foreign goods), if the processing operation outside the customs territory of the Eurasian Economic Union is a repair, as well as if processing operations outside the customs territory of the Eurasian Economic Union are carried out in respect of goods transported by pipeline. In the case of export from the customs territory of the Eurasian Economic Union for warranty repair of defective parts, assemblies, and assemblies that were part of goods previously imported into the customs territory of the Eurasian Economic Union and placed under the customs procedure for release for domestic consumption, foreign goods that match the processed products in their description, quality, and technical characteristics, are considered as equivalent foreign goods without regard to their serviceability and/or deterioration. If it is allowed to replace processed products with equivalent foreign goods, the import of these equivalent foreign goods into the customs territory of the Eurasian Economic Union is allowed before the goods of the Eurasian Economic Union are exported from the customs territory of the Eurasian Economic Union. Replacement of processed products during the repair of goods is allowed provided that the goods replacing the processed products are identical or homogeneous with respect to the goods intended for repair, in accordance with the customs procedure for processing outside the customs territory. At the same time, the replacement parts of the goods can be both new and used. It is not allowed to replace processed products during the repair of goods, when such repairs may give the resulting products characteristics significantly different from those of the original products. The grounds for replacing processed products during the repair of goods are the relevant provisions of the agreement (contract) and the warranty obligations of the person repairing the goods.
Accordingly, a violation by an obligated person of the specified procedure for replacing processed products of domestic goods during the customs procedure for their processing forms the final composition of the offense provided for in Part 2 of the commented article.
For committing an act provided for in Part 2 of the commented article, the offender is punished with a fine.
The amount of the fine for committing an offense under Part 2 of Article 542 of the Administrative Code is 20 MCI, is fixed and is not subject to change by the body imposing it.
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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