Comment to article 829-4. Terms of appeal, protest of the decision on the case of an administrative offense, the order on the need to pay a fine, the decision of a higher authority (official) on the complaint, protest The Code of the Republic of Kazakhstan on Administrative Offences
1. A complaint or protest against a decision in an administrative offense case, or a decision of a higher authority (official) on the complaint or protest, shall be filed within ten days from the date of delivery of a copy of the decision, and if the persons specified in Articles 744, 745, 746, 747, 748 and 753 of this Code do not participated in the consideration of the case – from the date of receipt of the resolution.
A complaint or protest against an order to pay a fine may be filed within ten days after the expiration of the period provided for in Article 817 of this Code.
2. A complaint or protest against a decision on an administrative offense case made in connection with non-fulfillment or improper fulfillment of a tax obligation established by the Tax Code of the Republic of Kazakhstan, or obligations provided for by the legislation of the Republic of Kazakhstan on pension provision and compulsory social insurance, identified by the results of a tax audit, may be filed within thirty days from the date of delivery or receipt of a copy of the resolution.
3. Missing the deadline for filing a complaint or protest is not grounds for refusing to accept the complaint or protest for consideration. The complaint or protest is being considered, while missing the deadline for filing a complaint or protest and their significance are checked regardless of the consideration of the complaint or protest.
4. The filing of a complaint or the filing of a protest within the time limit established by this article shall suspend the execution of a decision on the imposition of an administrative penalty or an order on the need to pay a fine until a decision is made on the complaint or protest.
5. The court has the right to suspend the execution of the decision on the imposition of an administrative penalty for the duration of consideration of the case of an administrative offense.
6. A complaint may be filed, and a protest may be filed against a party that worsens the situation of a person brought to administrative responsibility or a person against whom administrative proceedings have been terminated, within one year from the date of entry into force of the decision on the case of an administrative offense, an order on the need to pay a fine, a decision of a higher authority (official) on complaint or protest.
Part 1 of the commented article establishes a ten-day period for appealing (protesting) a decision in an administrative offense case, a decision of a higher authority (official) on a complaint or protest. Despite the legislator's apparent departure from the specified time limit in the direction of its increase in other procedural codes, in the Administrative Code its optimality is confirmed by practice and the specifics of administrative proceedings – speed.
This period is considered sufficient for the persons specified in Articles 744, 745, 746, 747, 748 and 753 of the Administrative Code to appeal illegal, in their opinion, decisions of judges, bodies and officials.
The starting point for its expiration should be considered the moment of delivery of a copy of the resolution, and if the persons mentioned above did not participate in the consideration of the case, from the date of receipt of the resolution.
The legislator has determined a different procedure for the calculation of the specified period in relation to the requirement to pay a fine. A complaint or protest may be filed within 10 days after the expiration of the period provided for in Article 817 of the Code. This is due to the specifics of this category of cases, the commentary on which is given in Chapter 42 of the Administrative Code.
At the same time, when calculating deadlines, it is necessary to be guided by the requirements of art. 739 of the Administrative Code.
Part 2. The Law established an extended period (thirty days) for appealing (protesting) decisions in the case of an administrative offense issued in connection with non-fulfillment or improper fulfillment of a tax obligation established by the Tax Code of the Republic of Kazakhstan, or obligations provided for by the legislation of the Republic of Kazakhstan on pension provision and compulsory social insurance, identified by the results of a tax audit. Such a complaint or protest may be filed within 30 days from the date of delivery or receipt of a copy of the resolution.
Part 3 provides for a legal structure unusual for other procedural codes – violation of the established deadline is not an obstacle to the consideration of a complaint (protest). Other codes legally retain the possibility of restoring the specified deadline, which was missed for good reasons. The issue of reinstating the salary period is decided by a judge or an official authorized to consider the complaint. In the Administrative Code, missing the deadline for filing a complaint or protest is not grounds for refusing to accept a complaint or protest for consideration. They are considered without faPart 3 provides for a legal structure unusual for other procedural codes – violation of the established deadline is not an obstacle to the consideration of a complaint (protest). Other codes legally retain the possibility of restoring the specified deadline, which was missed for good reasons. The issue of reinstating the salary period is decided by a judge or an official authorized to consider the complaint. In the Administrative Code, missing the deadline for filing a complaint or protest is not grounfi to accept a complaint or protest for consideration. They are considered without fail.
This raises the question of the necessity and expediency of co This raises the question of the necessity and expediency of considering the reasons for missing the deadline for filing a complaint. However, the literal content of the norm requires courts, regardless of the consideration of a complaint or protest, to check whether the deadline for filing a complaint or protest has been missed and their significance. It follows from this that, regardless of the content of the complaint or protest, the reasons for missing the deadline can serve as an independent basis for refusing to satisfy them. That is, the legal consequences are the same as in the case of a refusal to restore a missed procedural period. However, there are differences. With this procedure, courts often accept complaints against decisions that have entered into force, and sometimes against executed decisions.
Thus, the legislator establishes the priority of protecting the rights and legitimate interests of participants in the proceedings on an administrative offense. In general, this approach deserves approval in the context of the interests of the participants in the proceedings.
Parts 4 and 5. The filing of a complaint or protest suspends the execution of a decisits 4 and 5. The filing of a complaint or protest suspends the execution of a decision on the imposition of an administrative penalty or an order on the need to pay a fine until a decision is made on the complaint or protest. In part 5, the legislator repeatedly indicates this as the right of the court.
These provisions are extremely important in practice, as they are designed to minimize the negative effect to the complainer of the execution of the decision, instruction, if the appeal is successful.
In addition, the costs are minimized for bailiffs, who, if the decision is applied for execution after the initiation of enforcement proceedings in accordance with the Law of the Republic of Kazakhstan dated April 2, 2010 No. 261-IV "On Enforcement Proceedings and the status of Bailiffs", will be required to bear the costs in this regard in the event of its cancellation or amendment, as well as well as the citizens themselves for individual executive actions.
The human rights potential of Part 6 cannot be overest The human rights potential of Part 6 cannot be overestimated. It limits the time limit for filing a complaint or protest designed to worsen the situation of a person brought to administrative responsibility or a person against whom administrative proceedings have been terminated to one year from the date of entry into force of a ruling on an administrative offense, an order on the need to pay a fine, a decision of a higher authority (official) on the complaint, protest. The one-year limit has been in place for many years. HoweHowever, if we compare this period with that established by the Code of Criminal Procedure for a similar situation (six months), then there is an extremely unsightly picture when this period is two times less for criminal offenses than for administrative ones.
The second important aspect is that the time limit for filing a complaint or protest in the direction of improving the situation of a person brought to administrative responsibility or a person against whom administrative proceedings have been terminated is unlimited.
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administratific 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-au
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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