Commentary to article 466. Violation of the legislation of the Republic of Kazakhstan on state registration of legal entities and registration of branches and representative offices The Code of the Republic of Kazakhstan on Administrative Offences
1. Carrying out activities without re-registration of a legal entity, its branches and representative offices in cases stipulated by law, -
entails a warning or fine for officials, small business entities or non-profit organizations in the amount of ten, for medium-sized businesses - in the amount of twenty, for large businesses - in the amount of forty monthly calculation indices.
2. Late notification to the registering authority of a change in the location of a legal entity -
entails a warning or fine for officials, small business entities or non-profit organizations in the amount of five, for medium-sized businesses - in the amount of ten, for large businesses - in the amount of thirty monthly calculation indices.
The object of the administrative offense being commented on is the established management procedure in the field of compliance with the legislation of the Republic of Kazakhstan on state registration of legal entities, their branches and representative offices.
The legal grounds for the state registration (re-registration) of legal entities and the registration of branches and representative offices are regulated by the Law of the Republic of Kazakhstan dated April 17, 1995 No. 2198. All legal entities established on the territory of the Republic of Kazakhstan are subject to state registration, regardless of the purposes of their creation, the type and nature of their activities, and the composition of participants (members). Branches and representative offices of legal entities located in the territory of the Republic of Kazakhstan are subject to registration without acquiring the right of a legal entity.
The objective side of Part 1 of the article under consideration is characterized by an unlawful act (inaction) in the form of carrying out activities without re-registering a legal entity, its branches and representative offices in cases provided for by law.
Such cases are provided for in Part six of Article 42 of the Administrative Code of the Civil Code of the Republic of Kazakhstan (general part) dated December 27, 1994 No. 268.
A legal entity is subject to re-registration in the following cases::
1) reduction of the size of the authorized capital;
2) name changes;
3) changes in the composition of participants in business partnerships (with the exception of business partnerships in which the register of participants in a business partnership is maintained by a professional securities market participant engaged in maintaining a system of registers of securities holders).
Amendments made to the constituent documents on the above grounds without re-registration of the legal entity are invalid. For example, the small business entity limited liability partnership "Builder" has changed its name to "Koktem". However, the legal entity has not been re-registered as required by law. In accordance with the considered norm of the Administrative Code, Bereke LLP is subject to administrative liability with the imposition of an administrative fine in the amount of 10 monthly calculation indices.
The mechanism of State re-registration of a legal entity, accounting re-registration of a branch (representative office) is provided for in Article 14 of the Law of the Republic of Kazakhstan dated April 17, 1995 No. 2198 "On State Registration of Legal Entities and Registration of branches and representative offices." Responsibility for the violation of this law is contained in article 18. It is not allowed to operate as a legal entity without state registration. Income received from activities without state registration is withdrawn to the income of the republican budget in accordance with Article 45 of the Administrative Code.
The application by courts of legislation on the withdrawal of income received in carrying out entrepreneurial or other activities without a license is explained by the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 4 "On the application by courts of legislation on the withdrawal of income received in carrying out entrepreneurial or other activities without a license."
The state service "State re-registration of legal entities, accounting re-registration of their branches and representative offices" is carried out in accordance with the Standard approved by the Order of the Minister of Justice of the Republic of Kazakhstan dated April 24, 2015 No. 233. The standard of public services has been developed and is provided by the Ministry of Justice of the Republic of Kazakhstan (hereinafter - the Ministry). Acceptance of the application and issuance of the result of the provision of public services is carried out through:
1) Non-profit Joint-stock Company "Government for Citizens State Corporation";
2) the e-government web portal www.egov.kz .
The objective side of Part 2 of the article under study is characterized by an unlawful act (inaction) in the form of an untimely notification to the registering authority of a change in the location of a legal entity.
Failure to provide information on changes in the data of a legal entity within one month, entailing its state re-registration in accordance with the procedure established by law, is responsible in accordance with the laws of the Republic of Kazakhstan, namely, under part 2 of Article 466 of the Administrative Code.
In case of illegal refusal by the registering authority of state (accounting) registration (re-registration) of legal entities, branches (representative offices), registration of amendments and additions to the constituent documents of legal entities, regulations on their branches (representative offices), the applicant has the right to demand compensation for losses incurred by him in court.
In the event of a change in the location of a legal entity that is not a private business entity, as well as a joint-stock company, the state registration of the amendments and additions to the constituent documents of the legal entity is carried out with the reissue of the certificate of state registration of the legal entity indicating the new address.
If the location of a legal entity belonging to a private business entity is changed, with the exception of a joint-stock company, their branches (representative offices), the legal entity, branch (representative office) shall notify the registration authority at the actual address within one month from the date of the decision to change the location, on the basis of which the information on it is updated.
The subject of an administrative offense is officials and legal entities in the form of small, medium and large businesses.
The subjective side of all parts of the article under consideration can be expressed both in the form of direct intent and carelessness.
The heads of the authorized body in the field of state registration of rights to immovable property, legal entities, acts of civil status, its territorial divisions and their deputies have the right to consider cases of administrative offenses provided for in the commented article and impose administrative penalties.
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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