Commentary to article 640. Violation of the legislation of the Republic of Kazakhstan on electronic document and electronic digital signature The Code of the Republic of Kazakhstan on Administrative Offences
1. Refusal to accept electronic documents in cases stipulated by the laws of the Republic of Kazakhstan, -
entails a fine for officials in the amount of twenty, for legal entities - in the amount of fifty monthly calculation indices.
2. Failure of the certification center to take the necessary measures to prevent the loss, modification and forgery of the stored public keys of the electronic digital signature -
entails a fine in the amount of one hundred monthly calculation indices.
3. Failure of the certification center to protect information about the owners of registration certificates -
entails a fine in the amount of one hundred monthly calculation indices.
4. Failure by the owner of the registration certificate to take measures to protect the electronic digital signature private key belonging to him from unauthorized access and use, as well as to store public keys in accordance with the procedure established by the legislation of the Republic of Kazakhstan, -
entails a fine in the amount of fifty monthly calculation indices.
5. Illegal transfer of the private key of an electronic digital signature to other persons -
entails a fine for individuals in the amount of ten, for officials, small business entities or non-profit organizations - in the amount of fifteen, for medium-sized businesses - in the amount of thirty, for large businesses - in the amount of one hundred and fifty monthly calculation indices.
Part 1 of the commented article provides for administrative liability of officials and legal entities in the form of an administrative fine for refusal to accept electronic documents in cases stipulated by the laws of the Republic of Kazakhstan.
The direct object of the administrative offense provided for in part 1 of the commented article is the procedure for accepting electronic documents established by law and protected by the state.
This procedure is regulated by the Law of the Republic of Kazakhstan dated January 7, 2003 "On Electronic Document and Electronic Digital Signature" (hereinafter referred to as the Law), Decree of the Government of the Republic of Kazakhstan dated October 31, 2018 No. 703 "On Approval of the Rules for Documentation, Document Management and the use of electronic Document Management systems in State and non-governmental organizations."
The objective side of the administrative offense provided for in part 1 of the commented article is expressed in inaction, namely, in refusal to accept electronic documents in cases where this is provided for by the laws of the Republic of Kazakhstan.
According to subparagraph 12) of Article 1 of the Law, an electronic document is a document in which information is presented in electronic and digital form and certified by means of an electronic digital signature.
According to article 24 of the law, refusal to accept electronic documents in cases stipulated by the laws of the Republic of Kazakhstan is not allowed.
The subject of an administrative offense provided for in part 1 of the commented article is an official or a legal entity. The sanction provides for administrative liability in the form of an administrative fine.
The subjective side of the acts provided for in Part 1 of Article 640 of the Administrative Code is characterized by guilt in the form of intent.
The composition of the administrative offense provided for in the commented article is formal, that is, it is considered completed from the moment the fact of the offense is discovered and it is not necessary to establish the fact of causing material harm.
Part 2 of the commented article provides for administrative liability in the form of an administrative fine for failure by the certification center to take the necessary measures to prevent the loss, modification and forgery of the stored public keys of the electronic digital signature.
The direct object of the administrative offense provided for in part 1 of the commented article is the procedure established by law and protected by the state for storing public keys of an electronic digital signature.
The objective side of the administrative offense is expressed in inaction, namely, in the failure of the subject of the offense to prevent the loss, modification and forgery of the stored public keys of the electronic digital signature.
According to paragraph 2 of Article 21 of the law, the certifying center is obliged to take all necessary measures to prevent the loss, modification (modification) and forgery of the stored public keys of the electronic digital signature.
According to subparagraph 18) of Article 1 of the law, the public key of an electronic digital signature is a sequence of electronic digital characters accessible to any person and intended to confirm the authenticity of an electronic digital signature in an electronic document.
The subject of the administrative offense provided for in part 2 of the commented article is the certification center. The subject is special. A certification center is a legal entity that certifies that the public key of an electronic digital signature matches the private key of an electronic digital signature, as well as confirms the authenticity of registration certificates.
The subjective side of the acts provided for in Part 2 of Article 640 of the Administrative Code is characterized by guilt in the form of intent.
The composition of the administrative offense provided for in the commented article is formal, that is, it is considered completed from the moment the fact of the offense is discovered and it is not necessary to establish the fact of causing material harm.
Part 3 of the commented article establishes administrative liability in the form of an administrative fine for failure by the certification center to protect information about the owners of registration certificates.
The direct object of the administrative offense provided for in part 3 of the commented article is the procedure established by law and protected by the state for the protection of information about the owners of registration certificates.
The objective side of the administrative offense is expressed in inaction, namely, in the failure to protect information about the owners of registration certificates.
According to article 23 of the law, the certification center ensures the protection of information about the owners of registration certificates and discloses them in cases provided for by legislative acts of the Republic of Kazakhstan. Information about the owners of registration certificates, which is confidential in accordance with the agreement of the parties, is not included in the publicly available register of registration certificates.
According to the law, the owner of the registration certificate is a natural or legal person in whose name the registration certificate was issued, who lawfully owns the private key corresponding to the public key indicated in the registration certificate.
The subject of the administrative offense provided for in part 3 of the commented article is a special entity – the certification center.
The subjective side of the acts provided for in Part 3 of Article 640 of the Administrative Code is characterized by guilt in the form of intent.
The composition of the administrative offense provided for in the commented article is formal, that is, it is considered completed from the moment the fact of the offense is discovered and it is not necessary to establish the fact of causing material harm.
Part 4 of the commented article provides for administrative liability in the form of an administrative fine for failure by the owner of the registration certificate to take measures to protect the electronic digital signature private key belonging to him from unauthorized access and use, as well as to store public keys in accordance with the procedure established by the legislation of the Republic of Kazakhstan.
The direct object of the administrative offense provided for in part 4 of the commented article is the procedure established by law and protected by the state for protecting the private key of an electronic digital signature from unauthorized access and use, as well as the procedure for storing public keys.
The objective side of the administrative offense is expressed in inaction, namely, in the failure of the owner of the registration certificate to take measures to protect the private key of the electronic digital signature belonging to him from unauthorized access and use, as well as to store public keys.
According to subparagraph 4) of paragraph 2 of Article 17 of the law, the owner of the registration certificate is obliged to take measures to protect the private key of the electronic digital signature belonging to him from unauthorized access and use, as well as to store the public keys in accordance with the procedure established by the legislation of the Republic of Kazakhstan.
The private key of an electronic digital signature is a sequence of electronic digital characters designed to create an electronic digital signature using electronic digital signature tools.
The subject of the administrative offense provided for in part 4 of the commented article is a special entity – the owner of the registration certificate.
The subjective side of the acts provided for in Part 4 of Article 640 of the Administrative Code is characterized by guilt in the form of intent or negligence.
The composition of the administrative offense provided for in the commented article is material, that is, the fact of the discovery of the composition of the administrative offense is the consequences (for example, from unauthorized access and use of material damage) from the failure of the owner of the registration certificate to take measures to protect the private key of the electronic digital signature, as well as the storage of public keys.
Part 5 of the commented article provides for administrative liability of individuals, officials and business entities in the form of an administrative fine for illegally transferring the private key of an electronic digital signature to other persons.
The direct object of the administrative offense provided for in part 5 of the commented article is the rules for the use of an electronic digital signature established by law and protected by the state.
The objective side of an administrative offense is expressed in action, namely, the transfer of the private key of an electronic digital signature to other persons.
According to paragraph 2 of Article 10 of the law, the private keys of an electronic digital signature are the property of the persons who legally own them. A person may have the private keys of an electronic digital signature for various information systems. The private keys of an electronic digital signature cannot be transferred to other persons.
At the same time, the holder of the registration certificate of an electronic digital signature of a legal entity, the head of the legal entity or a person replacing him, has the right to transfer to an employee of this legal entity or a person appointed by him the authority to use an electronic digital signature on behalf of this legal entity.
What about physical education? A face? Isn't it possible to transfer by proxy? Running errands, for example.
The subject of an administrative offense provided for in Part 5 of Article 640 of the Administrative Code are individuals, officials, and business entities.
The subjective side of the acts provided for in Part 5 of Article 640 of the Administrative Code is characterized by guilt in the form of intent or negligence.
According to part 1 of Article 692 of the Administrative Code, the authorized body in the field of informatization and communications considers cases of an administrative offense provided for in part 1 of Article 640 of the Administrative Code.
According to part 2 of Article 692 of the Administrative Code, the head of the authorized body in the field of informatization and communications and his deputies, heads of territorial bodies of the authorized body in the field of informatization and communications have the right to consider cases of administrative offenses and impose administrative penalties.
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
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
