Comment to article 189. Violation of the procedure and deadlines for consideration of appeals from individuals and legal entities  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. Violation by a large business entity of the procedure and deadlines for consideration of appeals from individuals and legal entities established by the legislation of the Republic of Kazakhstan on the procedure for consideration of appeals from individuals and legal entities, -

     entails a fine on legal entities in the amount of thirty monthly calculation indices.

     2. The same action (inaction) committed repeatedly within a year after the imposition of the administrative penalty provided for in part one of this Article., -

     entails a fine on legal entities in the amount of sixty monthly calculation indices.

     The commented article establishes administrative responsibility for violating the procedure and deadlines for reviewing appeals from individuals and legal entities.

     The generic object of offenses provided for in Article 189 of the Administrative Code is the procedure established in the legislation of the Republic of Kazakhstan and protected by the state for carrying out entrepreneurial activities in the Republic of Kazakhstan.  

     The direct object of the offenses provided for in Article 189 of the Administrative Code is the procedure established and protected by the state for considering appeals from individuals and legal entities.

     The subjects of the offenses provided for in the commented article are legal entities-large business entities, which, according to the legislation of the Republic of Kazakhstan, are required to consider appeals from individuals and legal entities and respond to them in accordance with the procedure and deadlines established for this purpose.

     The subjective side of offenses, the subjects of which are legal entities, is not subject to determination due to the existence of a legal requirement to establish guilt as a condition for bringing to administrative responsibility, only in relation to individuals. According to the legislation of the Republic of Kazakhstan on administrative responsibility, legal entities are administratively liable for the mere fact that they have committed an illegal act or omission, for which administrative liability is provided for in the Administrative Code, without taking into account the guilt of the officials of the legal entity who committed this act.

     The structures of administrative offenses provided for in the commented article are formal. In order to bring them to administrative responsibility, it is not necessary to establish the fact that the offender has caused material harm.  

     The decision to initiate proceedings on an administrative offense provided for in the commented article is made by the prosecutor.

     Part 1 of the commented article establishes administrative liability for violation by a large business entity of the procedure and deadlines for consideration of appeals from individuals and legal entities established by the legislation of the Republic of Kazakhstan on the procedure for consideration of appeals from individuals and legal entities.

     The objective side of the offense provided for in Part 1 of the commented article is characterized by the commission of illegal actions by a large business entity, a legal entity, which resulted in its violation of the procedure and deadlines for considering appeals from individuals and legal entities established by the legislation of the Republic of Kazakhstan on the procedure for considering appeals from individuals and legal entities.  

     The legislation of the Republic of Kazakhstan on the procedure for considering appeals from individuals and legal entities, according to paragraph 1 of Article 2 of the Law of the Republic of Kazakhstan "On the procedure for considering Appeals from Individuals and Legal Entities", is based on the Constitution of the Republic of Kazakhstan, consists of this Law and other regulatory legal acts of the Republic of Kazakhstan.

     At the request of paragraph 3 of Article 3 of the said Law, legal entities providing goods (works, services) in accordance with the terms of the state order and (or) public procurement, consider applications for the provision of said goods (works, services) in accordance with the said Law, unless otherwise provided by the laws of the Republic of Kazakhstan.

     In accordance with the norm of paragraph 2 of Article 15 of the said Law, the subjects considering appeals and officials are obliged to: 1) to accept and consider appeals from individuals and legal entities in the manner and within the time limits established by the cited Law; 2) to make legitimate and informed decisions; 3) to ensure control over the execution of decisions taken; 4) to inform individuals and legal entities about the decisions taken in writing or in the form of an electronic document;

     At the same time, at the request of the norm of subclause 1) of clause 1 of Article 9 of the said Law, the entities considering appeals and officials, within their competence, ensure objective, comprehensive and timely consideration of appeals from individuals and legal entities, if necessary, with their participation.

     According to the general requirement of clause 1 of Article 8 of the above-mentioned Law, an appeal from an individual and (or) a legal entity, which does not require receiving information from other entities, officials or an on-site inspection, is considered within fifteen calendar days from the date of receipt by the entity, official.

     If, in order to consider an application, it is necessary to obtain information from other entities, officials, or an on-site inspection, then, in accordance with paragraph 2 of Article 8 of the above-mentioned Law, the application of an individual and (or) a legal entity is considered and a decision is made on it within thirty calendar days from the date of receipt by the subject, official the face. In cases where additional examination or verification is necessary, the review period is extended by no more than thirty calendar days, which is notified to the applicant within three calendar days from the date of the extension of the review period. The term of consideration of the appeal is extended by the head of the subject or his deputy. At the same time, the laws of the Republic of Kazakhstan may establish other deadlines for consideration of appeals.

     Based on the results of consideration of appeals from individuals and legal entities, the entities considering the appeals are required to prepare and send responses to their appeals within the time period prescribed by Law.  

     As required by paragraph 1 of Article 10 of the above-mentioned Law, responses to appeals must be well-founded and motivated in the state language or the language of the appeal with reference to the legislation of the Republic of Kazakhstan, contain specific facts refuting or confirming the applicant's arguments, explaining their right to appeal the decision.

     According to paragraph 3.art. 9 of the above-mentioned Law, one of the following decisions is made based on the results of consideration of appeals: 1) on the full or partial satisfaction of the appeal; 2) on the refusal to satisfy the appeal with the justification for making such a decision; 3) on giving explanations on the merits of the appeal; 4) on the termination of consideration of the appeal.

     Failure to perform or improper performance by a legal entity -a large business entity - of the duties assigned to it by Law to consider appeals from individuals and legal entities constitutes an administrative offense provided for in Part 1 of the commented article.

     The offense provided for in Part 1 of the commented article is considered to have been committed at the moment when the person to whom the appeal was addressed by law did not respond to it or responded to it in violation of the procedure, form, content and timing of the response to the appeal established for this in the legislation of the Republic of Kazakhstan.

     For committing an act provided for in Part 1 of Article 189 of the Administrative Code, the offender is punished with a fine.

     The amount of the fine for committing an offense under Part 1 of Article 189 of the Administrative Code is 30 MCI, is fixed and is not subject to change by the body imposing it.  

     The case of an administrative offense under Part 1 of the commented article is being considered and an administrative penalty is imposed on the offender by the court by virtue of a direct indication of this in the relevant norm of the Administrative Code.

     Part 2 of the commented article establishes a more severe penalty for repeated commission of the act provided for in Part 1 of the commented article within a year after the imposition of an administrative penalty.  

     At the same time, the object, the subjective side and the subjects of the offense provided for in Part 2 of the commented article coincide in their characteristics with the object, the subjective side and the subjects of the offense provided for in Part 1. art. 189 of the Administrative Code.  

     In the description of the objective side of the offense provided for in Part 2 of Article 189 of the Administrative Code, a sign of repetition is added to the act provided for in part 1 of the commented article.  

     An offense is considered to have been committed repeatedly if the person has previously committed the act provided for in Part 1 of Article 189 of the Administrative Code, has been subjected to administrative punishment for it, and the one-year period during which the person is considered to have been subjected to administrative punishment has not expired yet.

     The repetition of an offense is an independent qualifying feature, entailing the qualification of an unlawful act as an independent element of an offense under Part 2 of Article 189 of the Administrative Code.  

     Repetition as a qualifying feature is established not only in fact by identifying the number and nature of the unlawful acts committed by the violator during the year, but also legally by establishing the fact of bringing this person to administrative responsibility for the commission of an offense provided for in Part 1 of Article 189 of the Administrative Code, the presence of an effective and unturned resolution of the authorized body or court on the imposition of administrative penalties under Part 1 of art. 189 of the Administrative Code, the fact of its announcement, delivery or referral to the offender and the expiration of a one-year period from the date of imposition of the penalty.

If a person has committed an illegal act repeatedly or continues to commit it after the start of the commission and until it is revealed, but until that moment he has not previously been brought to administrative responsibility under Part 1 of Article 189 of the Administrative Code, then bringing him to responsibility under Part 2 of Article 189 of the Administrative Code is impossible, since there is no qualifying sign of repetition. In this case, the person must be brought to administrative responsibility and punished under Part 1 of art. 189 of the Administrative Code, even if there are signs of repeated violations during the year and the uniformity of violations committed.  

     For repeated commission of the act provided for in Part 1 of Article 189 of the Administrative Code within a year after the imposition of the penalty, the offender is punished with a fine.

     The amount of the fine for committing an offense under Part 2 of Article 189 of the Administrative Code is 60 MCI, is fixed and is not subject to change by the body imposing it.  

     The case of an administrative offense under Part 2 of the commented article is being considered and an administrative penalty is imposed on the offender by the court by virtue of a direct indication of this in the relevant norm of the Administrative Code.

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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