Comment to article 896. Procedure for sending a decision on the imposition of a fine, instructions on the need to pay a fine for enforcement 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 is sent to state bailiffs, regional chambers of private bailiffs in accordance with the procedure established by the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs", within ten days after the expiration of the voluntary execution of the decision on the imposition of a fine or an order on the need to pay a fine.
A decision on the imposition of a fine or an order on the need to pay a fine may be sent for enforcement in the form of an electronic document, which is certified by an electronic digital signature of a judge, an official of an authorized body.
When sending a decision on the imposition of a fine or an order on the need to pay a fine to state bailiffs and regional chambers of private bailiffs, information on the non-receipt of the fine amount to the state revenue is attached to it.
2. A decision on the imposition of a fine, an order on the need to pay a fine, aimed at enforcement in violation of the requirements of this Code, are subject to return to the state body that imposed the administrative penalty.
3. The return of a decision on the imposition of a fine, an order on the need to pay a fine to the body that imposed the administrative penalty, is not an obstacle to re-sending them for enforcement with the deficiencies eliminated.
The Law of the Republic of Kazakhstan dated December 28, 2017 "On Amendments and Additions to the Code of Administrative Offences of the Republic of Kazakhstan" amended the content of the article, providing for a mechanism for the enforcement of a fine based on the form of an electronic document.
Part 1 of the article in question provides for the legal basis and terms of enforcement proceedings for the collection of an administrative fine by public and private bailiffs.
The legal basis for the execution of resolutions and orders on the need to pay a fine is the Law of the Republic of Kazakhstan dated April 2, 2010 "On Enforcement proceedings and the status of bailiffs".
Based on paragraph 11 of Part 1 of Article 9 of this Law, the regulations on the need to pay a fine issued by the body (official) authorized to impose administrative penalties are an executive document.
The procedure for receiving, recording an enforcement document and storing enforcement proceedings is regulated by Order No. 356 of the Chairman of the Committee for the Execution of Judicial Acts of the Ministry of Justice of the Republic of Kazakhstan dated November 14, 2012.
The executors of the instructions on the need to pay a fine are public and private bailiffs. The executive document on which the enforcement proceedings have been initiated is in the materials of the enforcement proceedings. The bailiff sends for execution a resolution on the initiation of enforcement proceedings with a copy of the said enforcement document attached.
Along with the written form, an electronic form of a fine order may be used. The instruction on the need to pay a fine with a receipt of the established sample is sent to the owner (owner) of the vehicle within ten days from the date of the administrative offense.
Decisions on enforcement proceedings taken by the bailiff from the date of presentation of the enforcement document for execution are formalized by resolutions. Rulings certified by the bailiff's electronic digital signature are equivalent to rulings on paper.
The decision of the bailiff is subject to mandatory execution and may be appealed or protested to the court within ten working days in accordance with the procedure provided for by the CPC of the Republic of Kazakhstan dated October 31, 2015.
Decisions of public and private bailiffs should be drawn up on the basis of Standard Forms of bailiffs approved by the order of the Minister of Justice of the Republic of Kazakhstan.
Based on Part 3 of Article 10 of the Law of the Republic of Kazakhstan dated April 2, 2010 "On Enforcement proceedings and the status of Bailiffs", the bailiff has the right, on his own initiative or at the request of persons participating in the enforcement proceedings, to correct typos or obvious arithmetic errors made by him in the resolution. These corrections are made by a resolution on amendments to an earlier resolution.
The procedure for processing an electronic document and affixing a digital signature is provided for by the Rules of Electronic Document Management approved by the Decree of the Government of the Republic of Kazakhstan dated April 17, 2004 No. 430. The storage of electronic documents is accompanied by the storage of relevant electronic databases, used public keys of electronic digital signatures (registration certificates of electronic digital signatures) and programs that implement the processes of forming and verifying electronic digital signatures of electronic documents.
Paragraph 3 of Part 1 of Article 896 of the Administrative Code contains requirements to attach information about the non-receipt of the fine amount to the state revenue to the decision on the imposition of a fine or the order on the need to pay a fine.
Such information is contained in the Unified Register of Debtors, which are 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, on periodic recovery for 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.
Part 2 of the article in question provides that a decision on the imposition of a fine, an order on the need to pay a fine, aimed at enforcement in violation of the requirements of the Administrative Code, are subject to return to the state body that imposed the administrative penalty.
The procedure for filling out and sending a resolution on an administrative offense case and an order on the need to pay a fine is provided for in Articles 822 and 822-1 of the Administrative Code.
The resolution issued based on the results of the consideration of an administrative offense case is drawn up in writing and signed by the official who issued such a resolution, or is issued in the form of an electronic document certified by the electronic digital signature of the official who issued such a resolution. The form of the decision in the case of an administrative offense is approved by the authorized bodies, whose officials have the right to impose administrative penalties. For example, in the public procurement authorities, the form of the resolution on administrative offenses was approved by Appendix No. 1 of the Order of the Chairman of the Agency for Public Procurement dated December 23, 204 No. 5 "On approval of Instructions for the production of cases of administrative offenses in the internal affairs bodies of the Republic of Kazakhstan."
Based on clause 4, clause 1, Article 38 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs", the bailiff must refuse to initiate enforcement proceedings if the enforcement document does not meet the requirements for enforcement documents. A copy of the bailiff's decision to refuse to initiate enforcement proceedings, accompanied by all received documents, shall be sent to the recoverer, as well as to the court or body (official) that issued the enforcement document, no later than the day following the day of the issuance of the said decision. The private bailiff returns the document to the recoverer. The return order must specify the grounds on which the executive document is being returned.
Appeals and appeals against decisions on administrative offenses that have not entered into legal force and orders on the need to pay a fine are provided for in Chapter 43-1 of the Administrative Code.
Part 3 provides for the possibility of re-sending a decision on the imposition of a fine or an order on the need to pay a fine for enforcement after the deficiencies have been eliminated to the body that imposed the administrative fine.
Based on paragraph 3 of Article 38 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs", the elimination of deficiencies in the enforcement document does not prevent the re-sending (presentation) of the enforcement document to the bailiff. The date of submission of the enforcement document received by the bailiff after the elimination of its shortcomings or later than the deadline is considered to be the day of its secondary receipt. A writ of execution received with unresolved deficiencies specified in the resolution on its return is not subject to execution and is returned to the body or person who sent it.
At the same time, the deadlines for submitting enforcement documents for execution must be observed on the basis of Article 11 of the Law of the Republic of Kazakhstan dated April 2, 2010 "On Enforcement Proceedings and the status of Bailiffs".
Enforcement documents may be submitted for enforcement within the following time limits:
1) court rulings issued in the case of an administrative offense - within one year, unless other time limits are established by law (paragraph 3);
2) resolutions of the body (official) authorized to consider cases of administrative offenses - within one year (paragraph 4);
3) instructions on the need to pay a fine issued by the body (official) authorized to impose administrative penalties - within one year (paragraph 6).
The legal grounds and mechanism for re-sending enforcement documents on the payment of fines are carried out in the same manner as the first time.
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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