Commentary to article 6. Objectives of legislation on administrative offences The Code of the Republic of Kazakhstan on Administrative Offences
1. Legislation on administrative offences has the task of protecting the rights, freedoms and legitimate interests of man and citizen, health, sanitary and epidemiological welfare of the population, the environment, public morals, property, public order and security, the established procedure for the exercise of state power and public administration, the legally protected rights and interests of organizations from administrative offences, and also a warning of their commission.
2. To accomplish this task, the legislation on administrative offenses establishes the grounds and principles of administrative responsibility, determines which acts are administrative offenses and the types of penalties imposed for their commission, as well as which administrative penalty, which state body (official) and in what order can be imposed on a person who has committed an administrative offense.
The commented article consists of two parts, which define the tasks of legislation on administrative offenses, based on the principles enshrined in the norms of the Constitution of the Republic of Kazakhstan.
Part 1 of the commented article has two main objectives: protective and preventive.
The protective task is formulated on the basis of the administrative and legal protection of public relations provided for in the Special Part of the Administrative Code.
The preventive task is to prevent further administrative offenses and identify the causes and conditions that contribute to the commission of an administrative offense.
For example, in the decision-making process in the case of an administrative offense, on the basis of art. 826 of the Administrative Code, officials of the internal affairs bodies (police) have the right to make an idea of the causes and conditions of administrative offenses. If the subject of the offense ignores the presentation for disrespectful reasons, then officials of the Department of Internal Affairs, on the basis of Article 804 of the Administrative Code, should initiate proceedings on an administrative offense under art. 479 of the Administrative Code "Failure to report on the measures taken to eliminate the causes and conditions that contributed to the commission of an offense".
As objects of administrative and legal protection, the Administrative Code points to the rights, freedoms and legitimate interests of man and citizen, health, sanitary and epidemiological welfare of the population, the environment, public morals, property, public order and security, the established procedure for the exercise of state power and public administration, legally protected rights and interests of organizations.
To carry out the tasks of protecting the rights, freedoms and legitimate interests of man and citizen, public order and security, and others listed in Part 1 of art. 6 of the Administrative Code, from administrative offenses, as well as the prevention of their commission, the legislation on administrative offenses establishes the grounds and principles of administrative responsibility, the violation of which, depending on the nature and materiality, entails the recognition of the proceedings as invalid, the cancellation of decisions made during such proceedings, or the recognition of materials collected that do not have the force of evidence.
Paragraph 2 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 12 states that "If there are gaps in the procedural provisions of the Administrative Code, courts should be guided by constitutional norms on the principles of justice and human and civil rights, principles of legislation on administrative offenses."
Based on the content of Part 1 of the article under consideration, the following tasks are reasonably formulated:
1) protection of human and civil rights, freedoms and legitimate interests. According to Article 12 of the Constitution of the Republic, "in the Republic of Kazakhstan, human rights and freedoms are recognized and guaranteed in accordance with the Constitution. Human rights and freedoms belong to everyone from birth, are recognized as absolute and inalienable, and determine the content and application of laws and other regulatory legal acts.";
2) protection of citizens' health, sanitary and epidemiological welfare of the population. Part 1 of Article 29 of the Constitution of the Republic states "Citizens of the Republic of Kazakhstan have the right to health protection";
3) Environmental protection. On the basis of Parts 1 and 2 of art. 31 of the Constitution of the Republic, "The State aims to protect the environment favorable to human life and health. Concealment by officials of facts and circumstances threatening human life and health entails liability in accordance with the law.";
4) protection of public morality. Part 5 of Article 12 of the Constitution of the Republic stipulates that "the exercise of human and civil rights and freedoms must not violate the rights and freedoms of others, encroach on the constitutional order and public morality";
5) protection of property. On the basis of Parts 1 and 2 of Article 26 of the Constitution of the Republic, "Citizens of the Republic of Kazakhstan may have any legally acquired property in private ownership. Property, including the right of inheritance, is guaranteed by law.";
6) protection of public order and security. Based on Article 1 of the Law of the Republic of Kazakhstan dated April 23, 2014 "On Internal Affairs Bodies of the Republic of Kazakhstan", this task is the main one for the police.;
7) protection of the established procedure for the exercise of State power and public administration. Part 4 of Article 3 of the Constitution states that "State power in the Republic of Kazakhstan is unified, carried out on the basis of the Constitution and laws in accordance with the principle of its division into legislative, executive and judicial branches and interaction with each other using a system of checks and balances";
8) protection of legally protected rights and interests of organizations. The scope of the rights and legitimate interests of organizations depends on the type of legal entity and is regulated by the second paragraph of the Civil Code (General Part) of December 27, 1994.;
9) prevention of administrative offenses. According to Part 2 of Article 40 of the Administrative Code, "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, both by the offender himself and by other persons."
Part 2 of the commented article defines the content of the administrative legislation necessary for the implementation of the tasks listed in Part 1 of the commented article. To determine the main characteristics of the norm under study, it is necessary to answer the following questions::
1) what is the legal basis of administrative responsibility?
2) what principles should be observed when bringing an offender to administrative responsibility?
3) what acts are administrative offenses?
4) what types of penalties should be imposed for committing administrative offenses?
5) what administrative penalty can be imposed on a person who has committed an administrative offense?
6) which state body (official) can impose a penalty on a person who has committed an administrative offense?
7) in what order can a penalty be imposed on a person who has committed an administrative offense?
1. The grounds for liability are those circumstances, the presence of which in the legislation makes liability possible (necessary), and their absence excludes it. Paragraph 1 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 12 "On certain issues of application by courts of the norms of the General Part of the Code of the Republic of Kazakhstan on Administrative Offenses" explains the scope (composition) of legislation on administrative offenses. The legislation on administrative offences consists of the Code of the Republic of Kazakhstan on Administrative Offences, which is based on the Constitution of the Republic of Kazakhstan, generally recognized principles and norms of international law. The international contractual and other obligations of the Republic of Kazakhstan are, in accordance with paragraph 1 of Article 4 of the Constitution of the Republic, an integral part of its current law. When considering a case, courts and authorized officials are not entitled to apply the norms of the legislation of the Republic of Kazakhstan on administrative offenses, if other rules are established by an international treaty, the decision on consent to be bound by the Republic of Kazakhstan was made through ratification or accession. In these cases, the rules of the international agreement apply.
Decisions of international organizations and their bodies that violate the provisions of the Constitution on the sovereignty of the country and the inadmissibility of changing the established norms cannot be recognized as binding on Kazakhstan. The Constitution of the unity and territorial integrity of the state, the form of government of the republic, as well as infringing on the constitutional rights and freedoms of man and citizen.
2. The principles of administrative responsibility are listed in Articles 8-24 of the Administrative Code.
The importance of the principles of legislation on administrative offenses lies in the fact that their violation, depending on its nature and materiality, entails the recognition of the proceedings in the case as invalid, the cancellation of decisions made during such proceedings, or the recognition of materials collected that do not have the force of evidence (art. 7 of the Administrative Code).
3. An administrative offense is an unlawful, culpable (intentional or negligent) act or omission of an individual or an unlawful act or omission of a legal entity for which the Code provides for administrative liability (art. 25 of the Administrative Code).
4. Part 1 of Article 41 of the Administrative Code provides for 9 types of administrative penalties that can be imposed on individuals and legal entities. The concept and legal characteristics of administrative penalties are set out in articles 43-51 of the Administrative Code.
5. An administrative penalty is a measure of state coercion applied by a court, 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 the Administrative Code. 42 of the Administrative Code, administrative penalties are aggregated as basic and additional.
The type and amount of administrative penalty is provided for by the sanctions of the articles of the Special Part of the Administrative Code. The specifics of the application of administrative penalties are provided for by the norms of the General and Procedural parts of the Administrative Code, where offenders are special subjects of administrative responsibility or have privileges and (or) immunity from administrative responsibility. For example, Article 66 of the Administrative Code provides for the specifics of the application of administrative penalties to minors.
6. The jurisdictional powers of the court and officials to impose administrative penalties are defined by Chapter 36 of the Administrative Code, which clearly distributes the competence of these persons, the jurisdiction and jurisdiction of the consideration of cases of administrative offenses. Currently, 57 authorized bodies are authorized to impose administrative penalties depending on the jurisdiction of cases of administrative offenses.
7. The procedure for imposing administrative penalties is regulated by Chapter 43 "Consideration of cases of administrative offenses by authorized bodies (officials)" and 44-1 of the Administrative Code "Consideration of cases of administrative offenses by courts, appeal, and appeal in court decisions on cases of administrative offenses, orders on the need to pay a fine, decisions of a higher authority (official) on the complaint, protest."
If an administrative offense is detected using a certified special control and measuring equipment or an instrument operating in automatic mode, instead of a resolution on an administrative offense, an instruction is sent to the offender on the need to pay a fine (art. 822-1 of the Administrative Code).
An alternative to the above procedure is the consideration of cases of administrative offenses in a shortened procedure (proceedings), the mechanism of which is provided for in Chapter 42 of the Administrative Code.
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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