Commentary to article 626. Violation of the rules for ensuring the safety of goods in air transport The Code of the Republic of Kazakhstan on Administrative Offences
1. Damage to seals and locking devices of containers, tearing of seals from them, damage to individual cargo items and their packaging, packages, as well as warehouse fences, which are used to perform operations related to the transportation of goods by air, -
they entail a fine in the amount of ten monthly calculation indices.
2. Damage to containers and vehicles intended for the carriage of goods by air, -
entails a fine in the amount of ten monthly calculation indices.
The object of the offense being commented on is public relations arising in the field of cargo transportation by air.
The objective side of Part 1 of the offense in question is expressed in illegal actions (inaction) in the process of transporting goods by air, committed by:
1)damage to seals and locking devices of containers;
2) breaking seals from containers;
3) damage to individual cargo items and their packaging, packages;
4) damage to warehouse fences, which are used to perform operations related to the transportation of goods by air.
Subparagraph 13 of paragraph 3 of the Order of the Minister of Investment and Development of the Republic of Kazakhstan dated April 30, 2015 No. 540 "On approval of the Rules for the carriage of Passengers, baggage and cargo by air" defines cargo damage. Damage (spoilage) of baggage or cargo is the deterioration of baggage, cargo, or part of baggage or cargo during transportation, as a result of which they cannot be fully or partially used for their original purpose (they have lost all or part of their value).
Within the meaning of this definition, it can be seen that damage to goods related to their transportation by air does not entail administrative liability under the article under study.
Article 76 of the Law of the Republic of Kazakhstan dated July 15, 2010 "On the use of the Airspace of the Republic of Kazakhstan and Aviation activities" provides for the conditions for the carriage of goods by air. When transporting cargo, a consignment note is issued indicating the points of departure and destination, weight, and conditions of cargo transportation. The consignment note is issued on paper or electronically. The shipper and the recipient have the right to timely delivery by the air carrier of the cargo to the destination indicated in the documents for air transportation and to ensure its safety. In case of violation of the contract of carriage of goods, the shipper or the consignee has the right to require the carrier to draw up documents on the reasons for the unsecurity of cargo, baggage or mail (commercial act, general form act and other documents).
The objective side of part 2 of the commented article is expressed in illegal actions (omissions) in the form of:
1) damage to containers intended for the carriage of goods by air;
2) damage to vehicles intended for cargo transportation by aircraft.
The first qualifying feature differs slightly from the unlawful acts set out in the disposition of part 1 of this article in the form of: breaking the seal from the container or damaging the locking device from the container. Damage to a container intended for the carriage of goods by air should be understood as a change in its qualitative condition, which has led to the impossibility of its further use for its intended purpose.
Damage to containers or vehicles that are not intended for the transportation of goods on the territory of airfields does not constitute an offense under this part of Article 626 of the Administrative Code. For example, damage to vehicles intended for transporting air passengers to and from an aircraft does not constitute an administrative offense.
Cargo transportation from the shipper to the air transport and back to the recipient at the airport is carried out by special vehicles.
The concept of special transport is given in paragraph 15 of the Order of the Acting Minister of Investment and Development of the Republic of Kazakhstan dated March 26, 2015 No. 327 "On approval of the Rules for the organization of special transport at airports of the Republic of Kazakhstan". Special transport (hereinafter referred to as special transport) is a self-propelled vehicle mounted on an automobile or tractor chassis, equipped with working bodies (devices) for performing technical and commercial maintenance of aircraft, radio lighting support for flights, maintenance of airfields and for other work at the airport.
Control over the organization and safety of special vehicles allocated to the civil aviation organization services is entrusted to the heads of services using special vehicles.
The subjects of the offense are individuals involved in the process of transporting cargo by air. Since access to air transport facilities is restricted to unauthorized persons, only employees of the carrier on air transport can be subjects of administrative responsibility. These can be movers, drivers of special vehicles, etc.
The subjective side of the commented article can be expressed both in the form of direct intent and carelessness.
Based on the above comment, the conclusion is justified that administrative liability in all parts of the analyzed article occurs only for damage to those items specified in the disposition of Article 626 of the Administrative Code, which are related to the transportation of goods, but not damage to these goods. That is, there is no material damage to the shipper and the recipient. Therefore, it is advisable to exclude this article from the Administrative Code and transfer it to the sphere of administrative responsibility (disciplinary or civil).
They have the right to consider cases of administrative offenses and impose administrative penalties under the commented article.:
1)on behalf of the internal affairs bodies, in all cases, the chairmen of committees and heads of departments of the Ministry of Internal Affairs, the heads of territorial internal affairs bodies, administrative divisions, migration police, local police service of the region, the city of republican significance, the capital, their deputies;
2) on behalf of the authorized body in the field of civil aviation, in all parts, the head of the authorized body in the field of civil aviation and his deputies (paragraph 1, Part 3, Article 691 of the Administrative Code).
On the basis of Article 812 of the Administrative Code, for all types of offenses provided for in all parts of 626 of the Administrative Code, the authorized above-mentioned persons may also consider cases 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.
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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