Illegal drawing up of protocols on structural divisions of a legal entity that are not independent taxpayers and owners of a UTO facility, and therefore do not bear administrative responsibility as legal entities.
For example, by the resolution of the SMAS of Astana dated January 24, 2018, the case against the branch of the limited liability partnership "FitnessLink" under part 1 of Article 149 of the Administrative Code was terminated due to the absence of an administrative offense in its actions. The fact of non-fulfillment of measures to ensure anti-terrorist protection and compliance with the proper level of security of the UTO facility by the branch of LLP "F" was confirmed in the evidence collected in the case. At the same time, the administrative proceedings against the branch of the legal entity were terminated due to the fact that the authorized official incorrectly identified the subject of the offense. In accordance with part 1.3 of Article 43 of the Civil Code of the Republic of Kazakhstan, a branch is a separate subdivision of a legal entity located outside its location and performing all or part of its functions, including the functions of a representative office. Branches and representative offices are not legal entities. They are endowed with property by the legal entity that created them and act on the basis of regulations approved by it. In this case, the owner of a building, an object vulnerable to terrorism, is a legal entity that must bear responsibility. The analysis also showed cases of illegal termination of cases by the courts. Thus, by the resolution of the Alakol District Court of the Almaty region dated February 13, 2018 (Judge A.), a case was considered against JSC NC K under part 1 of Article 149 of the Administrative Code. During the consideration of the case by the court, it was established that JSC NC K had previously, during the year, already been brought to administrative responsibility under part 1 of Article 149 for other UTO facilities. And the court concluded that the actions of the JSC were incorrectly qualified by the official. The proceedings had to be initiated under part 2 of Article 149 of the Administrative Code. Since, according to the provisions of the Administrative Code, the court does not have the right to change the qualification of an offense to an article providing for a more severe administrative penalty, the proceedings were terminated due to the absence of an administrative offense. In this case, the court, without terminating the case, should have considered the case under part 1 of Article 149 of the Administrative Code. As a result, no one was punished for the revealed violations of the law. Despite the fact that an official of the authorized body misqualified the act of the subject of the offense, violated the deadlines for drawing up a protocol on an administrative offense, the court did not issue a private ruling to a higher organization. An analysis of the cases showed that the courts made mistakes regarding the correctness of bringing NC K JSC or its branch to justice. For example, on August 22, 2018, SMAS Nur-Sultan (judge K.) in the case against JSC NC K under part 2 of Article 149 of the Administrative Code found this legal entity guilty and imposed a penalty.
Illegal drawing up of protocols on structural divisions of a legal entity that are not independent taxpayers and owners of a UTO facility, and therefore do not bear administrative responsibility as legal entities.
After 12 days, on September 5, 2018, Judge K. overturned his own ruling, citing newly discovered circumstances. Thus, the judge commits an illegal cancellation, since this function is within the authority of a higher court. On September 21, 2018, it issues a resolution to terminate the proceedings in the case due to the lack of corpus delicti, arguing that the subject of the offense was incorrectly identified, since the responsibility should be borne by the structural subdivision, a branch of JSC NC K. On December 27, 2018, the Panfilovsky District Court of the Almaty region (Judge A.) terminated the proceedings against the Branch of JSC NC K under part 1 of Article 149 of the Administrative Code - it is not a legal entity. However, on November 13, 2019, the same court and the judge, having considered other material regarding the NC K JSC Branch, dismissed the case on other grounds, arguing that the incorrect qualification was given under part 1 of Article 149 instead of part 2 of Article 149 of the Administrative Code on the basis of repeated involvement, since the Branch had previously been involved by others. by the courts under this article. The judge considered the Branch to be the proper subject of the offense. Her conclusions on the qualification of the offense turned out to be incorrect, since the courts she indicated had previously prosecuted not the Branch, but the legal entity itself, JSC NC K. The incorrect practice of some courts has affected the consideration of cases by other courts. So, on December 5, 2019, the Karatal District Court of the Almaty region (Judge A.) dismissed the case against JSC NC K under part 2 of Article 149 of the Administrative Code on the grounds that it was necessary to involve a Branch, not a legal entity, in responsibility. The same violations were committed by the Aral District Court of the Kyzylorda region (Judge N.). On January 6, 2020, the case against JSC NC KTZ was dismissed by the Munailinsky District Court of the Mangystau region (Judge D.). The courts, making decisions on these cases, did not understand the disposition of part 1 of Article 149 of the Administrative Code, where It is indicated that the responsibility is borne by the owners, owners or managers of the facility, or the security company that concluded the contract. Therefore, the authorized bodies correctly drew up a protocol on an administrative offense against the owners, owners of buildings (train stations, etc.), that is, objects vulnerable to terrorism. These objects belong to JSC NC K.
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
