ON THE SUSPENSION OF THE ACTIVITIES OF LEGAL ENTITIES AND INDIVIDUAL ENTREPRENEURS
Suspension of the activity of an individual entrepreneur or a legal entity is one of the types of administrative penalties applied for the commission of certain administrative offenses, as specified in Article 45 of the Administrative Code No. 155 of January 30, 2001.
According to Article 53 of the Administrative Code No. 155 of January 30, 2001, the suspension or prohibition of the activities or certain types of activities of an individual entrepreneur or a legal entity is carried out only in court upon the application of the body (official) authorized to consider cases of administrative offenses.
The application is considered by the court within ten days. The specified article also provides that the measure of administrative penalty in the form of suspension of activity or certain types of activity of an individual entrepreneur or a legal entity is applied in cases when the violation is eliminated by carrying out the necessary actions (measures) within the time period established by the court for their elimination.
As a rule, the requirement to suspend activities was a consequence of the exercise by a State body of its functions and the possibility of exercising these functions only if an individual entrepreneur or a legal entity violated the current legislation.
48 of the new Administrative Code, which states that the suspension or prohibition of activities or certain types of activities is carried out only in court on the basis of materials from the body (official) authorized to consider cases of administrative offenses, if it is possible to impose a sanction in the form of suspension or prohibition of activities for the commission of an administrative offense.
So, by the definition of the Ministry of Economic and Social Affairs of the East Kazakhstan region dated February 06, 2015, the statement of claim of the Department of Emergency Situations of the East Kazakhstan region to the KSU "Cheremshanskoe Forestry" on the suspension of the operation of premises was returned for lack of jurisdiction.
When returning the statement of claim, the court was guided by the norm of subclause 2) of clause 1 of Article 154 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) that the judge returns the statement of claim if the case is beyond the jurisdiction of this court.
In its ruling, the court legitimately indicated that the plaintiff needs to apply with materials about an administrative offense to the administrative court at the location of the violator if the defendant has committed an administrative offense for which the sanction provides for suspension.
The suspension or prohibition of activities or certain types of activities is regulated by Articles 48, 801, 804 of the new Administrative Code in the case of an administrative offense.
However, some courts are still considering cases of suspension of activities in civil proceedings, despite the fact that there is a summary of judicial practice approved by the supervisory Judicial Board of the Supreme Court of the Republic of Kazakhstan, which explicitly states that since January 01, 2015, cases of this category are not considered in civil proceedings., since, according to Article 48 of the new Administrative Code No. 235 of July 05, 2014, the suspension of activities or certain types of individual entrepreneurs and legal entities is carried out from January 01, 2015 in the order of administrative proceedings.
For example, on October 21, 2015, the SMEC of the Almaty region considered a civil case on the claim of the Department of Ecology of the Almaty Region against KazProfBeton LLP for the suspension of activities and issued a decision to suspend the defendant's activities for two months for violating environmental legislation.
On October 23, 2015, the Council of Economic and Social Council of the North Kazakhstan region, having considered a civil case on the claim of the state institution "Department of Emergency Situations of the Esil district" to the communal state institution "Aktau Secondary School" for the suspension of activities, decided to suspend activities until violations of fire safety standards are eliminated. At the same time, the text of the court's decision states that by the decision of the Yesilsky District Court of September 04, 2015, the defendant was brought to administrative responsibility in the form of a fine of 100 MCI with suspension of activities for a period of 10 days, but the violations were not fully eliminated.
On August 28, 2015, the Ministry of Energy of the South Kazakhstan region considered a civil case on the claim of the Department of Emergency Situations of the Baydibek district against the municipal state enterprise Balbobek "bobekzhai balalar Bakshasy" for suspension of activities for two months for violations of fire safety standards.
Similar violations were committed during the adoption and consideration by the Council of Ministers of Kostanay region on September 03, 2015 of a civil case on the claim of the Consumer Protection Department of Kostanay of the Consumer Protection Department against S-Nord LLP for the suspension of activities, the Council of Ministers of North Kazakhstan region on October 28, 2015 of a civil case on the claim of the Department of Emergency Situations of Zhambyl district against KSU "Kirov Basic School" on suspension of activities, The Ministry of Emergency Situations of the Zhambyl region on October 28, 2015, a civil case on the claim of the Department of Ecology of the Zhambyl region against the institution "Fire Extinguishing and Rescue Service" for the suspension of activities in terms of operation of household stoves until obtaining permission for emissions into the environment, the Ministry of Emergency Situations of the Karaganda region on July 27, 2015, a civil case on the claim of the Department of Ecology of the Karaganda region The Committee for Environmental Regulation and Control of the KGP "Balkhash-Su" on the suspension of activities.
In accordance with paragraph 4, paragraph 1, Article 364 of the CPC, the grounds for revoking or changing a court decision on appeal are violations or improper application of substantive or procedural law.
It should be borne in mind that at the same time the CPC and other procedural laws provide for categories of cases that are subject to consideration not in civil proceedings, but according to other rules of procedure.
When making the above-mentioned decisions on suspension of activities in civil proceedings, the courts did not pay attention to the fact that the laws referred to by the plaintiffs - government agencies - provide for a rule on resolving the issue of suspension of activities under the Administrative Code.
For example, in paragraph 13 of art. 21 of the Code of the Republic of Kazakhstan "On the Health of the people and the healthcare system" provides that for decision-making based on the results of state sanitary and epidemiological control and supervision, depending on established violations of the requirements of the legislation of the Republic of Kazakhstan in the field of sanitary and epidemiological welfare of the population, officials of the sanitary and epidemiological service issue the following acts - resolutions of the chief state sanitary doctors on the suspension of activities or certain types of activities of an individual entrepreneur or a legal entity in accordance with the Code of the Republic of Kazakhstan on Administrative Offenses.
Also, in accordance with paragraphs 1-1 of Article 60 of the Law "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan" in the case of construction (expansion, modernization, technical re-equipment, reconstruction, restoration, capital repairs) of facilities and their complexes without design (design and estimate) documentation or according to design (design and estimate) documentation that has not been examined in accordance with the established procedure, construction and installation work is suspended in accordance with the Code of the Republic of Kazakhstan on Administrative Offenses.
Previously, until 2015, cases of suspension of activities were considered on the basis of Article 53 of the Administrative Code of 2001 and paragraph 3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 26, 2004 No. 18 "On certain issues of the application of legislation on administrative offenses by courts", which stipulated that if the sanction of the article of the special part of the Administrative Code does not provide for the specified penalty the issue of suspension or prohibition of the activities of an individual entrepreneur or a legal entity is subject to consideration by the court in the order of claim proceedings.
However, the above-mentioned Regulatory Resolution of the Supreme Court was invalidated by the Regulatory Resolution of the Supreme Court of December 24, 2014 No. 3, a new Administrative Code is currently in force, and there are no other regulatory legal acts that provide for the possibility of considering cases of suspension of activities in civil proceedings. Suspension of activity may be applied if it is possible to impose an administrative penalty in the form of administrative suspension of activity for committing an administrative offense, and only in cases where this is necessary to prevent an immediate threat to human life or health, the occurrence of an epidemic, epizootic, contamination (clogging) of quarantined facilities with quarantine facilities, the occurrence of a radiation accident or a man-made disaster., causing significant harm to the state or quality of the environment and if it is impossible to prevent these circumstances by other means.
By virtue of paragraphs 6), paragraph 1 of Article 41 and paragraph 2 of Article 42 of the Administrative Code, suspension of activity is one of the types of administrative penalties applied for committing administrative offenses and can be applied as both basic and additional administrative penalties.
According to Article 48 of the Administrative Code, the suspension or prohibition of activities or certain types of activities consists in the temporary termination or prohibition of activities or certain types of individuals and (or) legal entities, including branches, representative offices, structural divisions of a legal entity, production sites, as well as the operation of aggregates, buildings and structures, and the implementation of certain types of activities. (works), provision of services. The suspension or prohibition of activities or certain types of activities is carried out only in court on the basis of materials from the body (official) authorized to consider cases of administrative offenses, if it is possible to impose a sanction in the form of suspension or prohibition of activities for the commission of an administrative offense.
The court considers such cases within ten days. Thus, the above indicates that cases of suspension of activities cannot be considered in civil proceedings.
We believe that when such applications are received by the courts considering civil cases, they are subject to refusal to accept on the basis of paragraphs 1) paragraph 1 of Article 153 of the CPC, and if the application has already been accepted into court proceedings and a civil case has been initiated, further proceedings in such a case are subject to termination on the basis of paragraphs 1) of Article 247. GPC.
Thus, the results of this generalization allow us to conclude that it is necessary to form a unified practice of issuing judicial acts upon receipt of applications for suspension of the activities of citizens engaged in business activities without forming a legal entity and legal entities.
It was not possible to summarize the results of cases on suspension of activities considered in the order of administrative proceedings by the courts of the republic due to the absence in the Classifier of judicial acts on cases of administrative offenses, except for Articles 281, 282 and 283 of the Administrative Code, embedded for the Atyrau region.
In this regard, the cases reviewed since the beginning of 2015 by the specialized administrative court of Atyrau (hereinafter referred to as the CAS) were used in the generalization. By virtue of paragraph 3 of Article 683 of the Administrative Code, cases of administrative offenses for which suspension or prohibition of activities is provided as one of the types of administrative penalties are considered by a judge.
Article 801 of the Administrative Code regulates the procedure for suspending activities or certain types of activities, which states that the suspension or prohibition of activities or certain types of activities is carried out by an official authorized in accordance with Article 804 of this Code to draw up a protocol on an administrative offense, for which an administrative penalty may be imposed in the form of suspension or prohibition of activities or certain types of activities. types. Suspension or prohibition of activities or certain types of activities is allowed for a period of no more than three days. Within the specified period, the body (official) is obliged to send the materials on the administrative offense to the court.
The suspension of activity applies to individuals and (or) legal entities, including branches, representative offices, structural divisions of a legal entity, production sites, as well as the operation of units, buildings and structures, the implementation of certain types of activities (works), and the provision of services.
It should be noted that there are significant differences between the administrative suspension of activities and the civil prohibition of related activities. Administrative suspension of activities is possible, as a rule, in case of violation of regulatory regulations, rules and regulations.
A civil prohibition of the relevant activity is provided if the plaintiff proves that harm is possible in the future.
There are over 20 administrative offenses in the Administrative Code, the sanction of which provides for the penalty in the form of suspension of detency. Thus, by the decree of the Atyrau City CAC dated October 15, 2015, IP "Zheksenova B.E." was subjected to an administrative fine with suspension of activity for a period of seven days for committing an administrative offense under Part 3 of Article 462 of the Administrative Code.
The court found that on September 25, 2015, the sanitary and Epidemiological Service of the Department of Veterinary and Epidemiological Surveillance in Atyrau region issued an order to eliminate violations of the requirements of the legislation of the Republic of Kazakhstan in the field of sanitary and epidemiological welfare of the population, according to which IP "Zheksenova B.E." must, within the prescribed period, take measures to eliminate the established requirements of the legislation of the Republic of Kazakhstan in the field of safety of chemical products, The Law of the Republic of Kazakhstan "On the safety of chemical products".
However, IP "Zheksenova B.E." did not comply with the requirements of the order, the Department drew up a protocol on an administrative offense under Part 3 of Article 462 of the Administrative Code for improper fulfillment of the requirements of the order in respect of IP "Zheksenova B.E.". The content of the said court order indicates that the court is not motivated by the establishment of the suspension period.
In the decision on suspension of activity, the court must set a time limit during which the offender is obliged to eliminate violations of the requirements of the law, and indicate the reasons/motives for establishing this particular period of suspension.
At the same time, it is necessary to take into account the real possibility of the offender to begin eliminating the identified violations, the availability of funds and materials, and the time during which circumstances leading to the suspension of activities can be eliminated, while if a specific time limit is set, the court must indicate in the decision the reasons for the suspension period.
We also believe that the courts should suspend the specific activities of persons held accountable that pose a threat to protected public relations, and not any activity of a person who has committed an administrative offense, since by virtue of Article 18 of the Civil Code, no one can be restricted in their legal capacity except in cases and in accordance with the procedure provided for by legislative acts.
Failure to comply with the conditions and procedures established by legislative acts for limiting the legal capacity of citizens or their right to engage in entrepreneurial or other activities shall invalidate the act of the state or other body that established the relevant restriction.
Thus, if the threat of harm to the life or health of citizens, society or the state comes from buildings, structures, or aggregates owned by individual entrepreneurs or legal entities, as a result of violations of the rules for their operation established by law, then it is not the entrepreneurial activity of a citizen or the activity of the entire enterprise that is suspended, but its activities for the operation of these buildings, structures, and aggregates.
In this regard, the court's decision should specify the specific type of activity, specific buildings, structures, and aggregates for which an administrative penalty has been imposed in the form of administrative suspension of activity. Thus, by a resolution of the Atyrau City CAC dated June 17, 2015, Ideal Market LLP was fined and suspended for a period of seven days for committing an administrative offense under Part 3 of Article 462 of the Administrative Code.
The court found that, based on the results of an unscheduled inspection, the Atyrau City Consumer Protection Department issued order No. 56 dated May 04, 2015 on the elimination of violations of the requirements of the legislation of the Republic of Kazakhstan in the field of sanitary and epidemiological welfare of the population. However, on May 19, 2015, it was established that the prescription was not properly fulfilled, that is, the cause of microbiological contamination of the cheese slice "Provencal herbs", "Savushkin" produced in the Republic of Belarus, JSC "Savushkin product", contaminated with E. coli group bacteria has not been determined.
The balance of non-conforming products has not been determined as of May 04, 2015, an act on the established balance has not been drawn up, and the specified product was sold to the public without restrictions. For the packaging of dairy products in consumer packaging, the uninterrupted operation of the filling room with refrigerators, sinks, ventilation and lighting is not ensured.
Packaging is carried out on cutting boards and with a knife without marking, which contradicts the requirements of clause 75 of the Sanitary and Epidemiological requirements for wholesale and retail food trade facilities. The appeals board, having considered the case based on the offender's complaint, changed the court's decision, suspending for seven days the work of only the dairy products department and the Packing department, located separately from the sales hall, the Leader store of Ideal Market LLP, located at 37 Satpayev Street, Atyrau, first floor of the SEC.Tamasha", because Ideal Market LLP has several stores in Atyrau and other cities of the republic.
Violation of the deadline for consideration of cases in this category is unacceptable, since it leads to the continuation of the operation of dangerous facilities, which means that administrative suspension of activities is imposed in the event of a threat of harm or actual harm to protected public relations and is an extreme and forced measure to curb illegal activities.
Basic regulations:
The Civil Code of the Republic of Kazakhstan,
The Civil Procedure Code of the Republic of Kazakhstan (hereinafter - CPC),
The Code of the Republic of Kazakhstan on Administrative Offences,
Environmental Code of the Republic of Kazakhstan,
The Code of the Republic of Kazakhstan "On Public Health and Health Protection Systems",
Laws of the Republic of Kazakhstan "On State control and Supervision in the Republic of Kazakhstan", "On Fire Safety",
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 18 dated November 26, 2004 "On certain issues of application by courts of legislation on administrative offenses" (which became invalid by the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 3 dated December 24, 2014) and other laws, regulatory legal acts that establish sanitary, building codes, technical regulations.
Attention!
The Law and Law Law Firm draws your attention to the fact that this document is basic and does not always meet the requirements of a specific situation. Our lawyers are ready to assist you in drafting any legal document that suits your situation.
For more information, please contact a Lawyer/Lawyer by phone; +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases
