Commentary to article 889. Exemption from execution of an administrative penalty The Code of the Republic of Kazakhstan on Administrative Offences
The judge, the body (official) who issued the decision on the imposition of an administrative penalty, or the body that issued the order on the need to pay a fine, shall terminate the execution of the decision, the order and release from administrative punishment in the following cases::
1) repeal of the law or its individual provisions establishing administrative responsibility;
2) provided for by the second part of Article 8 of this Code;
3) the death of a person brought to administrative responsibility, or declaring him deceased in accordance with the procedure established by law;
4) the expiration of the limitation period for the execution of a decision on the imposition of an administrative penalty, an order on the need to pay a fine established by Article 890 of this Code;
5) stipulated by the legislative act of the Republic of Kazakhstan on the enactment of the Code of the Republic of Kazakhstan "On Taxes and Other mandatory Payments to the Budget" (Tax Code).
The issue of termination of the execution of a decision on the imposition of an administrative penalty, an order on the need to pay a fine and exemption from an administrative penalty is considered by the judge, the body (official) who issued the decision, issued the order, within three days from the date of occurrence of the grounds for resolving the relevant issue.
The commented article provides an exhaustive list of grounds for terminating the execution of a resolution or regulation, which is not subject to broad interpretation. These include the following cases:
1) repeal of the law or its individual provisions establishing administrative responsibility. According to Part 1 of Article 5 of the Administrative Code, a law that mitigates or cancels administrative liability for an administrative offense or otherwise improves the situation of a person who committed an administrative offense is retroactive, that is, it applies to an offense committed before the enactment of this law and in respect of which the decision to impose an administrative penalty has not been executed.
The principle of exemption from liability in the event of the repeal of the law that established it is constitutional. In accordance with Article 77 of the Constitution, when applying the law, a judge must be guided by one of the following principles: laws that establish or strengthen responsibility, impose new duties on citizens or worsen their situation are not retroactive. If, after the commission of an offence, the responsibility for it is abolished or mitigated by law, the new law applies. A similar provision is contained in Part 4 of Article 43 of the Law of the Republic of Kazakhstan "On Legal Acts". This Law regulates public relations related to the procedure for the development, submission, discussion, adoption, registration, enactment, amendment, addition, termination, suspension and publication of legal acts of the Republic of Kazakhstan. According to Part 4 of Article 24 of the Law, a legislative act may establish the basic principles of legal regulation, the basic concepts used in its text, the procedure and conditions for the application of other regulatory legal acts after the legislative act enters into force. The rules on the enactment of this act, on the invalidation, and on the repeal of a previously issued act are fixed in the final provisions of the legislative act.
2) provided for by the second part of Article 8 of the Administrative Code. Part 2 of Article 8 of the Administrative Code stipulates that the court, bodies (officials) authorized to consider cases of administrative offenses, in proceedings on cases of administrative offenses, must strictly comply with the requirements of the Constitution of the Republic of Kazakhstan, this Code, and other regulatory legal acts specified in Article 1 of the Administrative Code. The Constitution of the Republic of Kazakhstan has the highest legal force and direct effect on the entire territory of the Republic of Kazakhstan. In the event of a conflict between the rules established by the law and the Constitution of the Republic of Kazakhstan, the provisions of the Constitution shall apply.
The principle of legality, which is devoted to Article 8 of the Administrative Code, also determines that courts are not entitled to apply laws and other regulatory legal acts that infringe on the rights and freedoms of man and citizen enshrined in the Constitution of the Republic of Kazakhstan. If the court finds that a law or other regulatory legal act to be applied infringes on the rights and freedoms of a person and citizen enshrined in the Constitution, it is obliged to suspend the proceedings and apply to the Constitutional Council of the Republic of Kazakhstan with a proposal to declare this act unconstitutional.
Decisions of courts and bodies (officials) authorized to consider cases of administrative offenses based on a law or other normative legal act recognized as unconstitutional are not subject to execution.
3) the death of a person brought to administrative responsibility, or declaring him deceased in accordance with the procedure established by law. The fact of death of a person brought to administrative responsibility must be properly registered. In accordance with Article 268 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", the basis for state registration of death is:
1) a document of the prescribed form of death issued by a medical organization;
2) a court decision that has entered into legal force to establish the fact of death or to declare the person deceased (at the place of the decision).
After the state registration of death is completed, a death certificate is issued to the close relatives of the deceased who are part of the circle of his heirs, or to the citizens in whose care the deceased was, as well as to representatives of the administration of state organizations in which the deceased lived or served his sentence. The death certificate contains the following information:
1) first name, patronymic (if any), last name, date and place of birth, age of the deceased, date and place of death;
2) the date and number of the death certificate entry;
3) the date of issue and the name of the registering authority that issued the document;
4) the series and number of the death certificate.
According to the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated May 31, 2019 No. 2 "On judicial practice in cases of recognizing a person as missing or declaring a person dead", in accordance with Articles 28, 31 of the Civil Code and Part 2 of art. 317 of the CPC, a case on recognizing a citizen as missing or declaring deceased may be initiated at the request of his family members. the family, the prosecutor, public associations, the guardianship authority and other interested persons. Interested persons are individuals and legal entities, state bodies that, in accordance with the second part of Article 8 of the CPC, have the right to apply to the court for the protection of violated or disputed rights and freedoms or legitimate interests of other persons or an indefinite circle of persons in cases provided for by law, and for which recognition as missing or declaring deceased person entails the emergence, termination, or modification of personal non-property and property rights. Courts should keep in mind that an application for recognizing a citizen as missing or declaring him dead, along with complying with the requirements of Article 148 of the CPC in form and content, must comply with the norms of Article 318 of the CPC.The application must specify for what purpose it is necessary for the applicant to recognize the citizen as missing or to declare him dead, as well as the circumstances confirming the unknown absence of the person, or the circumstances threatening the missing person with death or giving grounds to assume his death from a certain accident. In respect of military personnel or other citizens who have gone missing in connection with military operations, the statement indicates the date of the end of hostilities. If the applicant fails to comply with these requirements, the application in accordance with subparagraph 3) of the first part of Article 152 of the CPC is subject to return, with an explanation of the shortcomings of the application for subsequent alignment with the CPC..
4) the expiration of the limitation period for the execution of a decision on the imposition of an administrative penalty, an order on the need to pay a fine established by Article 890 of this Code. According to Article 890 of the Administrative Code, the decision on the case of an administrative offense, the order on the need to pay a fine is not enforceable if it has not been enforced within one year from the date of its entry into force, and for offenses in the field of taxation and antimonopoly legislation of the Republic of Kazakhstan – within five years from the date of its entry into force. the power. This article also contains a description of cases of suspension, interruption, and extension of the statute of limitations.
5) stipulated by the legislative act of the Republic of Kazakhstan on the enactment of the Code of the Republic of Kazakhstan "On Taxes and Other mandatory Payments to the Budget" (Tax Code). The Code was put into effect by the Law of the Republic of Kazakhstan dated December 25, 2017 No. 121-VI "On the Enactment of the Code of the Republic of Kazakhstan on Taxes and Other Mandatory Payments to the Budget (Tax Code)". The Tax Code establishes the fundamental principles of taxation, regulates power relations for the establishment, introduction, amendment, cancellation, procedure for calculating and paying taxes and other mandatory payments to the budget, as well as relations related to the fulfillment of tax obligations.
The decision on the termination of the execution of the decision on the imposition of an administrative penalty, the order on the need to pay a fine and exemption from administrative penalty is made in the form of a resolution. In accordance with Part 5 of Article 887 of the Administrative Code, a copy of the decision is immediately handed over to the individual or representative of the legal entity against whom it was issued, as well as to the victim at his request against receipt. In the absence of these persons, a copy of the resolution is sent within three days from the date of its issuance, which is recorded in the case file.
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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