Commentary to article 676. Provision of illegal material remuneration by individuals The Code of the Republic of Kazakhstan on Administrative Offences
Chapter 34. ADMINISTRATIVE CORRUPTION OFFENSES
Chapter 34 of the Administrative Code regulates the institution of responsibility for the commission of an administrative offense, which consists of 6 articles providing for liability for the provision of material remuneration by individuals, legal entities for receiving illegal material remuneration by a person authorized to perform government functions or a person equivalent to him, for carrying out illegal business activities and obtaining illegal income by state and local authorities. Self-government, for failure to take measures by the heads of state bodies to combat corruption, as well as hiring persons who had previously committed a corruption crime.
In the commented chapter, the compositions are combined on the basis of their inherent common (generic) object of an administrative offense. The generic object of administrative corruption offenses is public relations that arise in the process of material remuneration for persons authorized to perform government functions and persons equivalent to them.
In accordance with the Law of the Republic of Kazakhstan "On Combating Corruption", corruption is understood as the non-legally prescribed acceptance of property benefits and advantages by persons performing government functions, as well as persons equated to them, using their official powers and related opportunities, or otherwise using their powers to obtain property benefits, as well as the bribery of these persons through the unlawful provision of these benefits and advantages by individuals and legal entities.
Some articles of the commented chapter contain competing norms in the Criminal Code of the Republic of Kazakhstan, therefore, when qualifying offenses, it is necessary for authorized bodies to determine whether the act does not contain signs of a criminally punishable act. As a rule, we are talking about the cost of gifts and services (more than 2 monthly estimates) provided to officials.
Earlier in the Code of Administrative Offenses of 2001, there was already such a chapter "Administrative corruption offenses", but after the adoption of the Code of Administrative Offenses of 2014, the article providing for liability for violation of financial control measures was excluded from this category of offenses. In addition, the responsibility for providing illegal financial remuneration to individuals has been tightened instead of a fine of 50 to 100 MCI, the new Code provides for a fine of 200 MCI, for legal entities instead of a fine of 100 to 500 MCI instead of a fine of 700 MCI instead of a fine of 100 to 500 MCI, and for part 2 instead of prohibiting the activities of a legal entity – a fine of 1,500 MCI. The fine for receiving illegal financial remuneration by a person authorized to perform government functions or an equivalent person has also been doubled from 300 MCI to 600 MCI.
According to all articles of this chapter, the right to initiate administrative proceedings belongs to the authorized body for civil service affairs and anti-corruption. In addition, according to articles 676, 677, 680, 681, such a right belongs to officials of the military police of the Armed Forces of the Republic of Kazakhstan, military police bodies of the National Security Committee of the Republic of Kazakhstan, military police bodies of the National Guard of the Republic for committing offenses by military personnel and persons at military training camps.
Cases of administrative offenses of a corrupt nature are considered by the courts.
Article 676. Provision of illegal material remuneration by individuals
Provision by individuals of illegal material remuneration, gifts, benefits or services to persons authorized to perform state functions, or persons equated to them, if these actions do not contain signs of a criminally punishable act, –
entails a fine in the amount of two hundred monthly calculation indices.
The Law of the Republic of Kazakhstan "On Combating Corruption" stipulates that criminal liability and punishment for corruption crimes are provided for by the Criminal Code of the Republic of Kazakhstan, and administrative liability and punishment for administrative corruption offenses is provided for by the Code of the Republic of Kazakhstan on Administrative Offenses.
The general object of this offense is the established procedure for ensuring state functions, institutions of the state and society.
The generic object is social relations that arise in the process of material remuneration of persons authorized to perform state functions and persons equivalent to them by individuals.
In accordance with paragraph 3 of Article 1 of the Law of the Republic of Kazakhstan "On Combating Corruption", persons authorized to perform public functions include civil servants in accordance with the laws of the Republic of Kazakhstan on public service, deputies of the Maslikhat, as well as persons temporarily performing duties provided for by public office, before their appointment to public service.
According to the content of the article under study, responsibility comes for providing financial remuneration not only to persons authorized to perform government functions, but also to persons equated to them. Paragraph 4 of article 1 of the mentioned Law specifies the circle of these persons, they include:
1) a person elected to local government bodies;
2) a citizen registered in accordance with the procedure established by the law of the Republic of Kazakhstan as a candidate for President of the Republic of Kazakhstan;
3) deputies of the Parliament of the Republic of Kazakhstan or maslikhats;
4) akims of cities of regional significance, towns, villages, rural districts, as well as members of an elected local government body;
5) an employee who permanently or temporarily works in a local government body, whose remuneration is made from the funds of the state budget of the Republic of Kazakhstan;
6) a person performing managerial functions in a state organization or a quasi-public sector entity;
7) employees of the National Bank of the Republic of Kazakhstan and its departments.
The objective side of the act is characterized by unlawful actions (inactions) that violate the normal, legally regulated activities of persons authorized to perform government functions, or persons equated to them, expressed in the provision of illegal material remuneration, gifts, benefits or services.
The Criminal Code of the Republic of Kazakhstan contains a competing norm, article 367 Giving a bribe, which contains the same signs of an offense as indicated in the article under study. A note to this article states: "The transfer of a gift in an amount or value not exceeding two monthly calculation indices for the first time to a person specified in the first part of Article 366 of this Code for previously committed lawful actions (inaction) does not entail criminal liability ...".
When qualifying an offense, it is necessary to estimate the amount of material remuneration or property benefits provided, if the amount is less than 2 monthly calculation indices (MCI), then the individual will be subject to administrative liability.
Paragraph 5 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015 No. 8 "On the practice of considering certain corruption crimes" defines that property benefits include all kinds of services, or illegal use of benefits, construction, repair work, provision of sanatorium or tourist vouchers, travel tickets, loans or loans on preferential terms, etc. Expert examinations may be appointed to determine their value.
The legislator considered the transfer of a gift to an official to be one of the forms of obtaining material benefits. Suilemanov J.A. in his article reveals the concept of a gift as follows: According to the general principles of morality and morality, a gift is any property that is donated to another person. That is, the gift itself does not require any reciprocal, reciprocal commitment or action on the part of the recipient.
However, according to the law, gifts are also prohibited from being accepted by persons authorized to perform government functions. If received, officials are required to donate them to a special fund.
In 2018, the internal security units of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan suppressed 12 facts of illegal gift giving to officials, as well as the provision of monetary rewards not exceeding 2 MCI.
Thus, 3 facts of donating boxes of chocolates and 9 facts of providing monetary rewards ranging from 500 to 2000 tenge were suppressed. To date, 9 persons have been brought to administrative responsibility in the form of fines totaling 2.9 million tenge.
So, for example, in the Department of Internal Affairs of the Alatau district of the Department of Internal Affairs of Almaty, the fact of illegal material remuneration in the form of a box of Roshen chocolates, worth 1,300 (one thousand three hundred) tenge, was revealed to the chief specialist of the "Center for the Reception and Processing of Information of Legal Entities, Individual Entrepreneurs and Tax Registration" for receiving public services to establish the presence of/absence of vehicle tax arrears.
The material was sent to the DADGS in Almaty to bring a citizen who tried to "give" a box of chocolates to administrative responsibility under Article 676 of the Administrative Code.
It should also be noted that paragraph 2 of the note to Article 367 of the Criminal Code states that a person who has given a bribe is exempt from criminal liability if an official has extorted a bribe from him, or if this person voluntarily informed a law enforcement or special state body about giving a bribe. But the Administrative Code does not provide for such an exemption from administrative responsibility, which, in our opinion, is a gap in administrative legislation.
The subjects of this offense may be sane individuals who have reached the age of 16 and provide illegal material goods or services. Also, officials who, wishing to receive patronage or connivance in their service, or a favorable solution to issues, provide material benefits to the heads of the departments in which they work or to officials who verify their activities, etc., may act as the subject of an administrative offense provided for in this article.
The subjective side of the act is characterized by direct intent, with the aim of extracting benefits for oneself from the official position of a person authorized to perform state functions or a person equated to it.
In case of detection of an administrative offense provided for in the commented article, a protocol on an administrative offense is drawn up. In accordance with paragraph 60 of part 1 of Article 804 of the Administrative Code, the following persons have the right to draw up a protocol::
- officials of the military police of the Armed Forces of the Republic of Kazakhstan on offenses committed by military personnel, conscripts, called up for training;
- officials of the military police bodies of the National Security Committee of the Republic of Kazakhstan on offenses committed against officials of military units;
- officials of the military police bodies of the National Guard of the Republic of Kazakhstan on offenses committed by military personnel and conscripts called up for training;
- officials of the authorized body for civil service affairs and anti-corruption.
In accordance with paragraph 60 of Part 16 of the Decree of the President of the Republic of Kazakhstan dated October 5, 2016 No. 349 "On certain issues of the Agency of the Republic of Kazakhstan for Civil Service Affairs and Anti-Corruption and Amendments and additions to Certain Acts of the President of the Republic of Kazakhstan", the preparation of an administrative protocol is the function of the central office of the Agency of the Republic of Kazakhstan for Civil Service Affairs and anti-corruption measures.
The consideration of administrative cases and the imposition of administrative penalties provided for in this article belong to the jurisdiction of judges of specialized district and equivalent administrative courts (art. 684 of the Administrative Code).
An administrative offense provided for in this article is punishable by a fine in the amount of two hundred monthly calculation indices. The sanction of the article is absolutely definite.
In 2018, a total of 35 facts of the commission of the administrative offense in question were registered. Of these, the court reviewed 24 administrative cases, and the authorized body for civil service affairs and anti-corruption reviewed 11 administrative cases. In 34 cases, the court decided to impose an administrative penalty in the form of a fine, and the case was dismissed in 1 case.
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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