Commentary to article 616. Violation of the rules of organization and conduct of mandatory technical inspection of motor vehicles and trailers of the Code of the Republic of Kazakhstan on Administrative Offenses
1. Violation of the rules for the organization and conduct of mandatory technical inspection of motor vehicles and trailers to them, committed in the form of:
1) issuance of a diagnostic technical inspection card indicating the parameters that do not correspond to the technical condition of motor vehicles and trailers to them, established during the inspection of the operator of the technical inspection;
2) unjustified refusal to carry out a mandatory technical inspection;
3) failure to submit information to the unified information system of mandatory technical inspection of motor vehicles and trailers to them;
4) failure to notify or untimely notification of a change in the location of the technical inspection center;
5) failure to inform the public about the schedule of mandatory technical inspection in the region of activity;
6) violations of the schedule of mandatory technical inspection;
7) issuance by the technical inspection operator of a diagnostic technical inspection card without mandatory technical inspection;
8) carrying out a mandatory technical inspection without the use of diagnostic and control equipment or with faulty and (or) non-verified diagnostic and control equipment;
9) failure by the operator of the technical inspection to archive video files for daily recording within six months from the date of the mandatory technical inspection;
10) the absence of video recording of the procedure for conducting a mandatory technical inspection or photo recording of the vehicle in the diagnostic inspection card;
11) drawing up and issuing a diagnostic technical inspection card that does not comply with the approved form;
12) failure to enter, as well as incorrect and (or) incomplete information into the unified information system of mandatory technical inspection of motor vehicles and trailers to them;
13) non-compliance of the production premises and the territory of the technical inspection center with the requirements established by state standards, -
entails a fine for small businesses in the amount of ten, for medium-sized businesses in the amount of twenty, for large businesses in the amount of thirty monthly calculation indices.
2. Combining the provision of services for mandatory technical inspection and repair, maintenance of motor vehicles and trailers to them -
entails a fine for officials, small business entities in the amount of thirty, for medium-sized businesses - in the amount of forty, for large businesses - in the amount of fifty monthly calculation indices, with exclusion from the register of technical inspection operators.
3. Provision of repair and maintenance services for motor vehicles and trailers on the territory of the technical inspection center -
entails a fine for officials and small business entities in the amount of thirty, for medium-sized businesses in the amount of forty, and for large businesses in the amount of fifty monthly calculation indices.
4. Provision of deliberately false information when included in the register of technical inspection operators -
entails a fine for officials, small business entities in the amount of thirty, for medium-sized businesses - in the amount of forty, for large businesses - in the amount of fifty monthly calculation indices, with exclusion from the register of technical inspection operators.
5. The acts 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 officials, small business entities in the amount of thirty, for medium-sized businesses - in the amount of forty, for large businesses - in the amount of fifty monthly calculation indices, with exclusion from the register of technical inspection operators.
By the Law of the Republic of Kazakhstan dated June 30, 2010 "On Ratification of the Agreement on the Adoption of Uniform Conditions for Periodic Technical Inspections of Wheeled Vehicles and on the Mutual Recognition of such Inspections", Kazakhstan joined the Vienna Agreement of 1997 "On the Adoption of Uniform Conditions for Periodic Technical Inspections of Wheeled Vehicles and on the Mutual Recognition of such Inspections".
The concept of a motor vehicle is given in paragraph 6 of Article 1 of the Law of the Republic of Kazakhstan dated July 4, 2003 No. 476 "On Motor Transport". An automobile vehicle (hereinafter referred to as a motor vehicle) is a unit of rolling stock of motor transport, including buses, minibuses, cars and trucks, trolleybuses, car trailers, semi–trailers for tractor units, as well as specialized vehicles (designed to transport certain types of goods) and special vehicles (designed to perform various mainly non–transportation work).
The concept of a mechanical vehicle is given in subparagraph 34 of paragraph 3 of the Technical Regulations "Requirements for the safety of motor vehicles" approved by the order of the Acting Minister of Investment and Development of the Republic of Kazakhstan dated November 26, 2014 No. 197. A mechanical vehicle is a self-propelled road vehicle powered by an engine, with the exception of mopeds and rail vehicles. The concept also applies to tractors and self-propelled vehicles when they participate in road traffic.
The Regulations do not apply to the following power-driven vehicles and their components:
1) slow-moving, having a maximum design speed of no more than 25 km/h;
2) imported into the territory of the Republic of Kazakhstan for a period not exceeding six months or placed under customs regimes that do not provide for the possibility of alienation;
3) not intended for use on public roads of the Republic of Kazakhstan;
4) intended exclusively for sports competitions;
5) motor vehicles purchased under the state defense order.
The general object of the offense is public relations arising in the field of ensuring the safety of vehicle operation. The generic object of the offense of the commented article is public relations in the field of technical inspection of motor vehicles.
Periodic technical inspections should be carried out in compliance with the following general principles:
-technical inspections should be carried out without disassembling or removing any part of the vehicle.;
-control and diagnostic equipment and measuring instruments must be entered in the State Register of Ensuring the Uniformity of Measurements of the Republic of Kazakhstan and have certificates of type approval of measuring instruments or metrological certification, as well as undergo verification;
-technical inspection should be carried out within a limited time. The actual time required for the technical inspection may vary depending on the category and condition of the vehicle being inspected, but should not exceed 30 minutes.
Periodic technical inspection of motor vehicles should be carried out visually, by testing the operation and functioning of the components of the vehicle, as well as by means of instrumental component control.
The periodic technical inspection program should contain checks on the completeness of the maximum values of parameters characterizing individual properties of operational safety; restrictions on wear (deformations) of individual components allowed in operation, standards characterizing the maximum possible deterioration in performance indicators, restrictions on the permissible limits for changing the design of motor vehicles.
The objective side of Part 1 of the offense is manifested in illegal actions (omissions) that violate the rules for organizing and conducting mandatory technical inspection of motor vehicles and trailers to them, committed in the form of:
Item 1) issuance of a diagnostic technical inspection card indicating parameters that do not correspond to the technical condition of motor vehicles and trailers to them, established during the inspection of the operator of the technical inspection.
A diagnostic technical inspection card is a document containing information about the owner and the mechanical vehicle and its trailers with a list of parameters of the technical condition of the mechanical vehicle and its trailers and the results of the mandatory technical inspection.
Mandatory technical inspection is carried out by the technical inspection operator using stationary and (or) mobile technical inspection lines, regardless of the place of registration of the vehicle and the place of residence of the vehicle owner. Mandatory technical inspection of vehicles is carried out by technical inspection operators from the date of notification to the authorized body in the field of transport and communications in accordance with the procedure established by Article 46 of the Law of the Republic of Kazakhstan dated May 16, 2014 "On Permits and Notifications".
Paragraph 2) unjustified refusal to carry out a mandatory technical inspection.
Mandatory technical inspection is a periodic process of diagnosing the technical condition of motor vehicles and trailers for compliance with the requirements established by the legislation of the Republic of Kazakhstan.
According to subparagraph 2 of paragraph 13 of the order of the Acting Minister of Investment and Development of the Republic of Kazakhstan dated March 26, 2015 No. 329, technical inspection operators are not allowed to unreasonably refuse to undergo a mandatory technical inspection. If the grounds for refusal to conduct a mandatory technical inspection are identified, the technical inspection operator shall inform the vehicle owner in writing within 15 minutes.
The reason for the refusal of the technical inspection operator to carry out a mandatory technical inspection is:
1) failure of the vehicle owner to provide a certificate of state registration of the vehicle;
2) non-presentation by the vehicle owner;
3) submission for mandatory technical inspection of a vehicle with numbered units (chassis, body) replaced without approval from the authorized body for ensuring road safety that do not correspond to the data of the certificate of state registration of the vehicle;
4) submission for mandatory technical inspection of vehicles without state registration plates.
Item 3) failure to submit information to the unified information system of mandatory technical inspection of motor vehicles and trailers to them.
According to subparagraph 4 of paragraph 12 of the Technical Inspection Rules, the technical inspection operator, through specialized software that provides interaction with the unified mandatory technical inspection information system, submits information to the unified mandatory technical inspection information system for motor vehicles and trailers based on the results of the mandatory technical inspection in real time.
Paragraph 4) failure to notify or untimely notification of a change in the location of the technical inspection center.
In accordance with paragraph 9 of the Rules for Maintaining the Register of Technical Inspection Operators, approved by the Order of the Minister of Investment and Development of the Republic of Kazakhstan dated May 31, 2016 No. 451, the notification of changes in its activities is determined. In the event of a change in the legal address of the individual entrepreneur, the location of the legal entity, the address of the technical inspection operator, as well as registration data, information about which is mandatory to fill in the notification of the start of the technical inspection operator, the technical inspection operator, within ten working days from the date of the change, sends a notification of these changes in accordance with the procedure established by the Legislation of the Russian Federation. provided for by the Law of the Republic of Kazakhstan "On Permits and Notifications".
Item 5) failure to inform the public about the schedule of mandatory technical inspection in the region of activity;
Subparagraph 3 of paragraph 10 of the Order of the Acting Minister of Investment and Development of the Republic of Kazakhstan dated March 26, 2015 No. 329 "On approval of the Rules for organizing and conducting mandatory technical inspection of motor vehicles and trailers to them, the frequency of mandatory technical inspection of motor vehicles and trailers to them" provides for the procedure for informing the public about the schedule of mandatory technical inspection. The room for receiving documents from vehicle owners is equipped in a place accessible to vehicle owners with information stands indicating the schedule of mandatory technical inspection in the region of activity.
Item 6) violations of the schedule of mandatory technical inspection.
The operator of the technical inspection draws up a schedule for departure for mandatory technical inspection of vehicles within the region of activity in coordination with local executive authorities in accordance with the Rules for determining the region of activity approved by the Order of the Minister of Investment and Development of the Republic of Kazakhstan dated February 2015 No. 248.
These Rules define the procedure for determining the region of activity of technical inspection operators to ensure mandatory technical inspection of motor vehicles and trailers throughout the Republic of Kazakhstan. The region of activity is determined for the mobile technical inspection line of the technical inspection operator by compiling a list of names of settlements and regions where there are no fixed technical inspection lines. The list of names of settlements and regions where there are no fixed technical inspection lines is compiled by the Transport Committee of the Ministry of Investment and Development of the Republic of Kazakhstan and posted on the Internet resource: www.mid.gov.kz .
Item 7) issuance by the technical inspection operator of a diagnostic technical inspection card without mandatory technical inspection.
According to subparagraph 9 of paragraph 3 of the Technical Inspection Rules, a diagnostic technical inspection card is a document containing information about the owner and the mechanical vehicle and its trailers with a list of parameters of the technical condition of the mechanical vehicle and its trailers and the results of the mandatory technical inspection. Based on the results of the mandatory technical inspection of the vehicle, the operator of the technical inspection draws up a diagnostic inspection card. The results of the mandatory technical inspection of the vehicle are formed into a single diagnostic card.
Item 8) carrying out a mandatory technical inspection without the use of diagnostic and control equipment or with faulty and (or) non-verified diagnostic and control equipment;
Based on subparagraph 1 of paragraph 3 of the Rules of Technical Inspection, control and diagnostic equipment are testing equipment and measuring instruments used to determine the parameters of the technical condition of motor vehicles and trailers to them.
During the mandatory technical inspection, control and diagnostic equipment is used that meets the requirements of the Laws of the Republic of Kazakhstan dated November 9, 2004 "On Technical Regulation" and June 7, 2000 "On Ensuring the Uniformity of Measurements".
The results of the mandatory technical inspection of the vehicle, obtained from the control and diagnostic equipment, are generated by means of specialized software in the control system of the technical inspection line according to a single digital protocol, providing automatic transmission of measured data via a serial channel.
The control and diagnostic equipment includes the following equipment:
1) Roller brake stand;
2) Backlash meter;
3) gas analyzer and smoke detector;
4) Electronic headlight light test device;
5) A backlash tester for steering and suspension parts.
Item 9) failure by the operator of the technical inspection to archive the video files for daily recording within six months from the date of the mandatory technical inspection.
In accordance with paragraph 40 of the Technical Inspection Rules, the technical inspection operator ensures the archiving of a video file of the daily recording of the entire procedure for inspections of mandatory technical inspection of vehicles and photo recordings for 1 year from the date of the mandatory technical inspection.
Item 10) the absence of video recording of the procedure for conducting a mandatory technical inspection or photo recording of the vehicle in the diagnostic inspection card.
The process of conducting a mandatory technical inspection is recorded by means of photo and video recording, which ensures the identification of the vehicle by the state registration number plate. The video recording device is located at a location from which an overview of the entire technical inspection line is provided.
Item 11) drawing up and issuing a diagnostic inspection card that does not comply with the approved form. The form of the diagnostic card is approved by the appendix to the Rules of organization and conduct of mandatory technical inspection of motor vehicles and trailers to them, the frequency of mandatory technical inspection of motor vehicles and trailers to them, approved by the order of the Acting Minister of Investment and Development of the Republic of Kazakhstan dated March 26, 2015 No. 329.
The diagnostic card is signed by the head of the technical inspection operator or an authorized person, sealed with the seal of the technical inspection operator and issued to the vehicle owner. The diagnostic card is filled out by the technical inspection operator in electronic form in specialized software that interacts with the unified mandatory technical inspection information system.
Item 12) failure to enter, as well as incorrect and (or) incomplete information into the unified information system of mandatory technical inspection of motor vehicles and trailers to them.
Based on paragraph 38 of the Technical Inspection Rules, stationary and mobile technical inspection lines are equipped with a hardware and software complex with specialized software that interacts with the unified mandatory technical inspection information system to generate, store and automatically transmit information on the results of mandatory technical inspection.
Point 13) non-compliance of the production premises and the territory of the technical inspection center with the requirements established by state standards.
In this provision, the Law of the Republic of Kazakhstan dated October 5, 2018 No. 184 "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on ensuring the uniformity of measurements and standardization", the word "state" was replaced by the word "national". However, this change takes effect six months after the first official publication. Since the law was first published in Kazakhstanskaya Pravda newspaper No. 193 (28822) dated October 10, 2018, this amendment comes into force on April 11, 2019.
According to clause 12 of the Technical Inspection Rules, the technical inspection operator ensures that the production premises and the territory of the technical inspection centers comply with the requirements of the state standard ST RK 1811-2011 "Motor vehicles. Mandatory technical inspection. Methods of control". The need to develop a standard is due to the transfer of the main functions of technical inspection (instrumental technical inspection) to the commercial environment, namely, to technical inspection centers supervised by the authorized body in the field of transport and communications, and the related change in the procedure for mandatory technical inspection to ensure detailed requirements for the technical condition of vehicles.
The updated subjects of the administrative offense provided for in Part 1 of this Article are legal entities in the form of subjects of small, medium and large enterprises.
The objective side of part 2 of the commented article is characterized by one qualifying sign of an offense, and consists in illegal actions in the form of combining the provision of services for mandatory technical inspection and repair, maintenance of motor vehicles and trailers to them.
The rules of technical operation of motor vehicles, approved by the Order of the Minister of Investment and Development of the Republic of Kazakhstan dated April 30, 2015 No. 547, determine the procedure for carrying out a set of measures, technical impacts (diagnosis, maintenance, repair) aimed at organizing and ensuring the safe operation of motor vehicles. Based on subparagraph 6 of paragraph 3 of these Rules, maintenance is a complex of operations (technical impacts) aimed at maintaining vehicles in good condition, ensuring traffic safety, and protecting the environment during their operation and storage. Ensuring the reliability of motor vehicles and their safe movement on the roads with minimal negative impact on the environment is achieved through the implementation of a planned preventive maintenance and repair system.
Technical inspection operators are prohibited from carrying out mandatory technical inspections and simultaneously providing repair and maintenance services for motor vehicles and trailers to them. Based on subparagraph 4 of paragraph 13 of the Technical Inspection Rules, technical inspection operators are not allowed to demand additional remuneration from the vehicle owner in connection with the mandatory technical inspection.
The objective side of part 3 of the article under consideration is expressed in illegal actions in the form of providing repair and maintenance services for motor vehicles and trailers on the territory of the technical inspection center.
Based on clause 14 of the Technical Inspection Rules, the time required for conducting a mandatory technical inspection of a vehicle should not exceed 30 minutes. This means that the provision of additional services for the repair and maintenance of motor vehicles and trailers on the territory of the technical inspection center is prohibited.
The objective side of part 4 of the article under study is characterized by one qualifying sign of an offense, and consists in illegal actions in the form of knowingly providing false information when included in the register of technical inspection operators.
The rules for maintaining the register of technical inspection operators were approved by the Order of the Minister of Investment and Development of the Republic of Kazakhstan dated May 31, 2016 No. 451. The register of technical inspection operators is created in order to maintain a single list of technical inspection operators conducting mandatory technical inspections of motor vehicles and trailers to them. The register is a single, periodically updated list of technical inspection operators and contains all the necessary information and reference information about them. The register is maintained by the Transport Committee of the Ministry of Investment and Development of the Republic of Kazakhstan based on the information provided by its territorial bodies.
The transport control authorities, within one working day after the entry into force of the decision on the case of an administrative offense against the operator of the technical inspection, for providing knowingly false information when included in the register of technical inspection operators, submit relevant information to the authorized body. The authorized body shall update the register posted on the Internet resource within two working days from the date of receipt of the relevant information.
The objective side of the fifth part of the commented article provides for the qualifying features of the 1st part of the same article, committed repeatedly within a year after the imposition of an administrative penalty.
The updated subjects of administrative offenses provided for in parts 2-5 of this article are officials, as well as legal entities in the form of small, medium and large businesses.
The subjective side of the commented article can be expressed both in the form of direct intent and carelessness.
According to parts 2, 4 and 5 of the article under study, in addition to an administrative fine, an additional administrative penalty is provided for, related to exclusion from the register of technical inspection operators.
The technical inspection operator is excluded from the register on the grounds provided for in Article 49 of the Law of the Republic of Kazakhstan dated May 16, 2014 No. 202 "On Permits and Notifications. In case of suspension of activities or certain types of activities or actions (operations) of an individual or legal entity, relevant information is entered into the state electronic register of permits and notifications. The exclusion of a notification from the state electronic register of permits and notifications is carried out at the request of the applicant, by a court decision prohibiting the activities or certain types of activities or actions of an individual or legal entity, as well as in other cases provided for by the laws of the Republic of Kazakhstan.
According to Article 616 of the Administrative Code, the head of the transport control body and his deputies, heads of territorial transport control bodies and their deputies, as well as authorized officials of transport control bodies have the right to consider cases of administrative offenses.
Based on Article 812 of the Administrative Code, all types of offenses provided for in all parts of 616 of the Administrative Code may also be considered at the place of registration of vehicles, or at the place of residence of the person against whom proceedings on an administrative offense are being conducted.
The rules for conducting mandatory technical inspection of motor vehicles and trailers registered with the military police of the Armed Forces of the Republic of Kazakhstan and the military police of the National Guard of the Republic of Kazakhstan have been approved by the relevant departmental orders of the Minister of Defense and the Ministry of Internal Affairs of the Republic of Kazakhstan.
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.);
Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);
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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