Comment to article 894. Enforcement of a decision to impose a fine on an individual, an individual entrepreneur, a private notary, a private bailiff and a lawyer, prescriptions on the need to pay a fine  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. A decision on the imposition of a fine or an order on the need to pay a fine shall be sent by a court, an authorized body (official) of the administration of the organization where the person held accountable works or receives remuneration, pension, scholarship, in order to deduct the amount of the fine forcibly from his salary or other income. The fine is withheld for a period not exceeding six months. The order of collection of a fine is carried out in accordance with the procedure provided for by the Civil Code of the Republic of Kazakhstan.

     2. In cases of dismissal of a person held accountable from work or the impossibility of collecting a fine from his salary or other income, the administration of the organization, within ten days from the date of dismissal or the occurrence of an event entailing the impossibility of collection, returns the decision on the imposition of a fine, an order on the need to pay a fine to the court, body (official) who issued the decision, with an indication of the new place of work of the person held accountable (if known), the reasons for the impossibility of recovery, and also with a note about the deductions made (if any).

     3. If an individual who has been fined does not work or the collection of a fine from wages or other income is impossible for other reasons, the decision to impose a fine or an order to pay a fine shall be sent by the court, the authorized body that issued the decision, to the bailiff for enforcement in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan.

     4. A resolution on the imposition of a fine for administrative offenses considered by the state revenue authorities, as well as for other administrative offenses in the field of taxation in respect of individual entrepreneurs, private notaries, private bailiffs and lawyers, is executed by the state revenue authorities in accordance with the procedure established by the tax legislation of the Republic of Kazakhstan.

     The Law of the Republic of Kazakhstan dated December 28, 2017 No. 127-VI "On Amendments and Additions to the Code of Administrative Offences of the Republic of Kazakhstan" amended the content of Article 894 of the Administrative Code, additionally providing for a mechanism for the enforcement of a fine.

     The article regulates the process of compulsory execution of a decision on the imposition of a fine imposed on a certain circle of persons.:

     1) an individual is a person who has reached the age of sixteen by the time of the termination or suppression of an administrative offense (art. 28 of the Administrative Code);  

     2) individual entrepreneur is a type of natural person engaged in entrepreneurial activity without forming a legal entity. An important feature of conducting business as an individual entrepreneur is the fact that a citizen is liable for his obligations with all his property, with the exception of property that, in accordance with the law, cannot be levied, unlike, for example, a participant in a limited liability company, where the participant is responsible for the obligations of the institution. In the main cases, they are owned by the company only within the limits of their share in the authorized capital of this company and in no case by their personal property. This essential fact is one of the main drawbacks of this form of management.

     On the basis of Article 2 of the PC RK dated October 29, 2015, entrepreneurship is an independent, initiative activity of citizens, oralmans and legal entities aimed at generating net income through the use of property, production, sale of goods, performance of works, provision of services, based on the right of private ownership (private entrepreneurship) or on the right of economic management or operational management of a state-owned enterprise (state entrepreneurship);

     3) private notary is a citizen who carries out notarial activities without forming a legal entity on the basis of a license, who has insured his civil liability for obligations arising from damage caused as a result of notarial acts, and has joined the notary chamber. According to part 2 of art . 15 of the Law of the Republic of Kazakhstan dated July 14, 1997 "On Notaries", a notary engaged in private practice has the right to open current accounts in banking institutions, hire and dismiss assistants, technical workers, according to labor legislation, dispose of income received from performing notarial acts, act in courts on his behalf and perform other actions in accordance with the legislation of the Republic of Kazakhstan;

     4) a private bailiff is a citizen of the Republic of Kazakhstan who has reached the age of twenty–five, has a higher legal education, has received a license from a private bailiff and joined the Republican Chamber.

     5) a lawyer is a citizen of the Republic of Kazakhstan who has a higher legal education, has received a license to practice law, is a member of the bar association and provides legal assistance on a professional basis within the framework of advocacy regulated by the Law of the Republic of Kazakhstan dated July 5, 2018 "On Advocacy and legal assistance."

     Since the Law of the Republic of Kazakhstan dated December 28, 2017 No. 127-VI "On Amendments and additions to the Code of the Republic of Kazakhstan on Administrative Offenses" simply supplemented the title of the article with the words "instructions on the need to pay a fine", then in the sense of compulsory enforcement of instructions on the need to pay a fine applies to all subjects of administrative responsibility.

     Article 33 of the Administrative Code details in more detail the administrative responsibility of private notaries, private bailiffs, lawyers, and individual entrepreneurs. Private notaries, private bailiffs, lawyers and individual entrepreneurs are subject to administrative liability for an administrative offense in cases stipulated by the Special Part of the Administrative Code. Individual entrepreneurs are subject to administrative liability for an administrative offense if the act (action or omission) was committed, authorized, or approved by an authority, a person performing management functions, or an employee of the individual entrepreneur performing organizational, administrative, or economic functions. Bringing individual entrepreneurs to administrative responsibility releases an employee of an individual entrepreneur from administrative responsibility for this offense.

     Part 1 provides for the procedure and main directions for the execution of a decision on the imposition of a fine or an order on the need to pay a fine. Firstly, the court or the official who issued the resolution or order has the duty to send it. Secondly, the resolution or instruction is sent to the administration of the organization where the person held accountable works or receives remuneration, a pension, or a scholarship. Thirdly, the time limits for withholding a fine may not exceed six months from the date of the issuance of a decision or instruction on the need to pay a fine. Fourth, the order of fine collection is carried out in accordance with the procedure provided for in Article 742 of the Civil Code.  

     If the client's money in the bank is sufficient to meet all the requirements presented to the client, money withdrawal is carried out in the order of receipt of orders from the client or other persons (calendar order), unless otherwise provided by art. 27 of the Law of the Republic of Kazakhstan dated July 26, 2016 "On Payments and Payment Systems".  

     If the client's money in the bank is insufficient to meet the next claim made against the client, the bank accumulates the money received in favor of the client, the amount of which is sufficient to meet the specified requirement, except in cases provided for by the legislative acts of the Republic of Kazakhstan. Upon presentation of several demands to the client, the bank withdraws the client's money in the following order:

     1) first of all, money is withdrawn according to executive documents providing for the satisfaction of claims for compensation for damage caused to life and health, as well as claims for the recovery of alimony;

     2) in the second place, money is withdrawn according to executive documents providing for the withdrawal of money for settlements on severance payments and wages with persons working under an employment contract, payment of remuneration under an author's agreement, obligations of the client to transfer mandatory pension contributions, mandatory occupational pension contributions to the unified accumulative pension fund and social contributions to the State Budget. Social Insurance Fund, deductions and (or) contributions for compulsory social health insurance to the social health insurance fund;

     3) in the third turn, money is withdrawn for the client's obligations to the budget;

     4) in the fourth turn, money is withdrawn according to executive documents providing for the satisfaction of other monetary claims.;

     5) in the fifth turn, money is withdrawn to meet other requirements submitted to the client in the order of the calendar order.

Part 2 of the commented article concerns the procedure for the enforcement of a decision to impose a fine in cases of dismissal of a person held accountable from work or the impossibility of collecting a fine from his salary or other income. In these cases, the administration of the organization, within ten days from the date of dismissal or the occurrence of an event entailing the impossibility of recovery, returns the decision on the imposition of a fine, an order on the need to pay a fine to the court, the body (official) who issued the decision, indicating the new place of work of the person held accountable (if known), the reasons for the impossibility of recovery., as well as a note about the deductions made (if any).

     When establishing a new place of work for an offender who has been subject to an administrative fine, the decision is sent in accordance with the procedure provided for in Part 1 of the article under investigation. If the debtor has not found a job and does not have a source of income, the enforcement of a fine is carried out in accordance with the procedure provided for in Part 3 of Article 894 of the Administrative Code.

     Part 3 of the article in question regulates the mechanism of compulsory collection of a fine from an individual:

     1) which does not work;

     2) who has no other sources of income;

     3) for other reasons.

     In the above cases, the court or the authorized body that imposed the administrative fine must send a resolution to the bailiff for enforcement in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan, namely the Law of the Republic of Kazakhstan dated April 2, 2010 "On Enforcement proceedings and the status of bailiffs." 35 of this law, the debtor is obliged, at the request of the bailiff, to provide him with information about his property, as well as provide information about sources of income.

     Based on paragraph 6 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated March 31, 2017 No. 1 "On the application by courts of certain norms of legislation on enforcement proceedings", if the debtor does not have enough money to repay the debt, foreclosure is levied on other property of the debtor.

     The bailiff is obliged to take measures to ensure the execution of enforcement documents. Measures to ensure the execution of enforcement documents are:

     1) seizure of the debtor's property, including money and securities;

     2) seizure of the debtor's movable property held by him or by other natural or legal persons;

     3) seizure of the debtor's immovable property held by him or other natural or legal persons;

     4) prohibiting the debtor from performing certain actions, including prohibiting the bodies of the legal entity from making decisions, as well as suspending the decisions taken on the alienation of movable and immovable property, property and non-property rights, securities and shares in the authorized capital and property of the legal entity;

     5) prohibiting the debtor from using the property belonging to him by right of ownership, including money, or instructing him to use it within the limits established by the bailiff;

     6) sealing of the debtor's property;

     7) withdrawal of title documents;

     8) prohibiting other persons from transferring property, including money, to the debtor or performing other actions in relation to him.

     Part 4 of the analyzed article provides for the specifics of the execution of a decision on the imposition of a fine for administrative offenses considered by the state revenue authorities, as well as for other administrative offenses in the field of taxation. The subjects of administrative responsibility are: individual entrepreneurs, private notaries, private bailiffs and lawyers, the concepts of which are described in the comments to the first part of this article. Such resolutions on the imposition of an administrative fine are executed by the state revenue authorities in accordance with the procedure established by the tax legislation of the Republic of Kazakhstan. Accounting for the execution of fines is regulated by the eleventh chapter of the Tax Code of the Republic of Kazakhstan dated December 25, 2017.

     The authorized body maintains a Unified Register of debtors in order to carry out tasks related to the enforcement of enforcement documents. Information about debtors is posted on the official Internet resource of the authorized body. The unified register of debtors is formed and maintained through an automated information system for enforcement proceedings. Information for inclusion in the Unified Register of Debtors, with the exception of information on debtors who do not have arrears in enforcement proceedings for periodic recovery of more than three months, as well as on enforcement documents on the adoption and cancellation of measures to secure a claim, shall be sent by bailiffs within three working days after the initiation of enforcement proceedings.

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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