Comments to article 2. The basis of administrative responsibility of the Code of the Republic of Kazakhstan On Administrative Offenses
The basis of administrative responsibility is the commission of an act containing all the elements of an offense provided for in the Special Part of this Code.
Administrative liability is one of the types of legal liability. Administrative responsibility should be understood as the application of administrative sanctions for offenses by government agencies and officials in conditions of off-duty subordination. These administrative sanctions are expressed in a limited range of administrative penalties and other coercive measures, as well as administrative and legal measures.
It is characteristic of administrative responsibility that it occurs not for any committed offense, but for an act that meets all the criteria of an administrative offense provided for in the Special Part of the Administrative Code. That is, a person can be found guilty and subject to administrative responsibility only if there are all the necessary subjective and objective signs of an administrative offense in his actions. Neither this or that state of personality, nor the way of thinking, nor the objective conditions in which the person was or is located, nor any other circumstances other than an offense, can become the basis of administrative responsibility.
The current legislation recognizes only one ground of responsibility - an administrative offense. Only an administrative offense is a legal fact that causes the emergence of an administrative and law enforcement relationship, giving rise to the right of a state body to apply a coercive measure and the obligation of the offender to undergo it.
In order to emphasize the specifics of administrative responsibility, it is also advisable to note in general terms the relationship between administrative responsibility and other types of legal responsibility (disciplinary, criminal, civil).
At the same time, it is legally limited only to bring to administrative or criminal responsibility for the same offense, which is explicitly provided for in Article 77 of the Constitution of the Republic of Kazakhstan.
Thus, criminal liability is based on a criminal offense (a crime or a criminal misdemeanor), which is significantly different in its danger to public relations, which occurs exclusively in court. Disciplinary liability occurs only in an extrajudicial manner, the basis of which is a disciplinary (official) misconduct, consisting in improper performance of official (official) duties. The purpose of civil liability is to compensate for material losses or harm, which are regulated by the Civil Code and the CPC.
The ratio of administrative and other (non-criminal) legal liability should be sought in each specific case in industry legislation. For example, the issue of the relationship between administrative and disciplinary responsibility is resolved in the Law of the Republic of Kazakhstan dated November 23, 2015 "On the Civil Service of the Republic of Kazakhstan". In accordance with paragraph 2 of Article 45, disciplinary punishment for the commission of disciplinary offenses is imposed no later than three months from the date of the discovery of misconduct and may not be imposed later than one year from the date of the commission of misconduct. In case of termination of a criminal case by a criminal prosecution body or a court, or proceedings on an administrative offense, but if there are signs of a disciplinary offense in the person's actions, disciplinary punishment is imposed no later than three months from the date of the decision to terminate the criminal case, but no later than one year from the date of the commission of this offense. At the same time, the specified time limits for disciplinary liability do not include the time of criminal proceedings or administrative proceedings.
Thus, the legislator, regardless of the success of the case (termination or not), implies the permissibility of the so-called "double" responsibility for one act — administrative and disciplinary.
Kazakhstan's legislation on administrative offences has distinctive features. When regulating a vast array of legal relations, it mixes different principles of the organization of the legal system, which are simultaneously regulated by industry legislation.
The high degree of dynamism of public relations, characteristic of any developing society, including Kazakhstan, is especially reflected in administrative and tort legislation. In order to ensure the effectiveness of the legal measures taken aimed at solving urgent state tasks and policy guidelines, it is necessary to establish a specific legal mechanism that would provide for the responsibility of persons involved in these legal relations. Among them, a huge role belongs precisely to the tools of administrative legislation, which includes such types of administrative penalties as fines, confiscation, suspension of activities, licenses, which allows achieving the most optimal result. Attempts to solve certain tasks without establishing the legal responsibility of the persons involved in the relevant legal relations will result in low efficiency in the implementation of these tasks, since it is impossible to impose, for example, disciplinary responsibility on participants in legal relations who are not in official relations.
In this regard, the most relevant, in the opinion of law enforcement officers, is the administrative type of responsibility. Thus, when developing any new law or amending an industry law that changes the mechanism of legal regulation in a particular area, law enforcement agencies propose amendments and additions to the Administrative Code. As a result, the Administrative Code turned out to be overloaded with minor violations.
However, not all violations of the norms (prohibitions, duties, requirements) of legislation should constitute an administrative offense. Moreover, an analysis of the norms of the Administrative Code showed that a number of administrative offenses should be excluded due to the possibility of considering the relations regulated by them in a civil or disciplinary manner.
Of course, it is easier for government agencies to solve their tasks and software installations using the Administrative Code, but we believe that they should look for other administrative measures that are not related to bringing to administrative responsibility.
Thus, by a decision of the Panfilovsky District Court of the Almaty region dated January 25, 2018, the case against JSC XXX was terminated under Part 1 of Article 149 of the Administrative Code, due to the absence of elements of an administrative offense in its actions.
In court, JSC XXX indicated that the protocol on the administrative offense was drawn up with violations. The order itself was issued on January 17, 2018, and the JSC was given a period of 30 calendar days from the date of its delivery to eliminate the deficiencies, that is, until February 17, 2018. This deadline has not expired yet. In this regard, the JSC requested that the case be dismissed for lack of evidence of an offense.
Senior police Lieutenant E.A. of the Linear Department of Internal Affairs at the Almaty-1 station explained in court that the protocol on an administrative offense was drawn up in accordance with the requirements of the Administrative Code. It was not possible to deliver the protocol to the offender in a timely manner due to the non-appearance of the representative of the joint-stock company, despite the notifications sent.
The Court concluded that the protocol was drawn up prematurely by the official. At the time of drawing up the protocol, there was no corpus delicti imputed to JSC XXX.
That's another matter. By a resolution of the SAS of Petropavlovsk, North Kazakhstan region, dated April 5, 2018, proceedings against Mr. O.A. under Part 1 of Article 78 of the Administrative Code on the application of Mr. N.N. for the restoration of violated rights were terminated due to the absence of an administrative offense in his actions.
In a statement dated April 2, 2018, Mr. N.N. requested that the director of GS LLP, Mr. O.A., be held administratively liable for failure to provide an order with information on the amount of liquefied gas consumed by residents of House No. 10 on Zashchitnaya Street in July 2017 and January 2018, and methods for calculating conversion coefficients. volume indicators of meters in bulk for gas.
In accordance with paragraph 4) of Part 1 of Article 807 of the Administrative Code, the protocol on an administrative offense under Article 78 of the Administrative Code was not drawn up.
It was established at the court session that the information was provided to the applicant in full on time. The Director of GS LLP, Mr. O.A., is not the subject of the offense in question, since he does not perform the functions of a government representative and does not perform organizational, administrative or economic functions in government institutions, quasi-public sector entities, and local governments.
In accordance with the note to Article 30 of the Administrative Code, officials are persons who permanently, temporarily or under special authority perform or were performing at the time of the commission of an administrative offense the functions of a government representative or who were performing or were performing at the time of the commission of an administrative offense organizational, administrative or economic functions in state institutions, quasi-public sector entities, local governments.
In the court's opinion, the functions performed by Mr. O.A. do not fall under the above definition. Accordingly, there is no corpus delicti and there can be no question of bringing to administrative responsibility.
An analysis of judicial practice has shown that officials of authorized bodies often show formalism when collecting and evaluating evidence and forming administrative case materials. As a result, only the protocol on an administrative offense appears as evidence in the materials, which is not always correctly drawn up, without appendices and other necessary evidence. Even more often, these protocols do not contain circumstances that aggravate or mitigate liability. As a result, the court or the official considering the case on the merits has to fill in these gaps during the consideration. At the same time, this is an unusual function for the court and to a certain extent contradicts its constitutional function – to administer justice on the principles of impartiality and freedom from the function of prosecution. Practitioners can refer to the requirement of Articles 829-11 of the Administrative Code. However, in our deep conviction, this article of the Administrative Code requires a significant and speedy correction in order to exclude from it the obligation for the court to establish and fill in the gaps of the charge in the form of establishing circumstances that aggravate responsibility.
Returning to the issue of administrative responsibility, it should be noted that the basis for bringing to administrative responsibility is the commission of an administrative offense, but in fact it should be stated that in the vast majority of cases the starting point for bringing a person to administrative responsibility is a violation of the requirements, duties or prohibitions established in industry laws or regulations. — tax, labor, environmental legislation, traffic or fire safety regulations, and a number of others. This position is used by most government agencies.
This feature and the intersectoral nature of the protective and restorative function of the Administrative Code significantly distinguishes it from other codified acts. For example, Article 86 of the Administrative Code provides for administrative liability for an employer's admission to work of a person without concluding an employment contract, but the requirement itself is set out in paragraph 3 of Article 33 of the Labor Code of the Republic of Kazakhstan. Another example is Chapter 16 of the Administrative Code, which provides for administrative liability for administrative offenses in the field of taxation, but the requirements themselves, as we know, are established in the Tax Code. These examples, the number of which could be increased, indicate that administrative and law enforcement norms protect by their sanctions public relations regulated by many branches of law and acts of varying legal force.
However, violation of the requirements of legislation in various areas of public administration is not a reason for bringing to administrative responsibility, since in accordance with Part 1 of Article 1 of the Administrative Code, the legislation of the Republic of Kazakhstan on administrative offenses consists only of the commented Code.
Thus, a person may be brought to administrative responsibility if his actions contain all the signs of a specific offense and there are no grounds provided for in art. 741 of the Administrative Code, excluding liability. Only the presence of an administrative offense in a particular act is the only reason for the occurrence of administrative responsibility for its commission.
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.);
Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);
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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