Protection in administrative cases from a Lawyer's office
In accordance with part 1 of Article 164 of the Administrative Code, liability is provided for the failure of a natural monopoly entity to provide information, reports and notifications of established forms to authorized bodies in the fields of natural monopolies, informatization and communications, civil aviation, as well as the provision of information, reports and notifications of established forms in violation of established deadlines (Part 2 repeat). Special entity: a natural monopoly entity. Range of circumstances to be determined: 1) whether the entity is responsible for providing information, reports and notifications (hereinafter referred to as documents); 2) whether the body to which the documents are to be submitted is an authorized body responsible for managing natural monopolies, informatization and communications, and civil aviation and whether it has such authority to receive these documents; 3) whether the submitted documents comply with the forms approved by the regulatory legal act; 4) whether the person has complied with the deadline for submitting documents. The generalization showed that when considering cases under parts 1 to 2 of Article 164 of the Administrative Code, there are no special difficulties in qualifying the actions of the offender, however, the courts should keep in mind that the correct definition of the norms of the substantive law that are violated by a person is of legal importance.
Protection in administrative cases from a Lawyer's office
The application of a large number of bylaws regulating the procedure, deadlines and forms of reporting, information, and notification. By the decision of the judge of the CAC of the city of Rudny dated June 12, 2018, JSC "S" (hereinafter referred to as the Company) was brought to administrative responsibility under part 1 of Article 164 of the Administrative Code. The Company committed a violation, which resulted in the failure to submit a profit and loss statement in accordance with the established form. The fine amounted to 800 MCI – 1,924,000 tenge. By the resolution of the Kostanay Regional Court dated July 30, 2018, the resolution of the Administrative Court of the city of Rudny was left unchanged. In accordance with subparagraph 7-5) of Article 7 of the Law of the Republic of Kazakhstan "On Natural Monopolies" (in force at the time of the commission of the offense) (hereinafter - law) a natural monopoly entity is obliged to: during the implementation of the investment program (project) annually, no later than May 1 of the year following the reporting period, submit to the authorized body a report on the implementation of the investment program (project) and post it in the mass media, including on its Internet resource or the Internet resource of the authorized body, a report on the implementation of the investment program (project) no later than July 1 of the year following the reporting period, in accordance with the procedure determined by the authorized body. The procedure for submitting the report is established by the Rules for Approving Investment Programs (Projects) of a natural monopoly entity, adjusting them, and analyzing Information on their implementation, approved by Order No. 194 of the Minister of National Economy of the Republic of Kazakhstan dated December 30, 2014 (hereinafter referred to as the Rules). According to paragraphs 27-28 of the Rules, information on the implementation of the investment program (project) is submitted by the entity to the department of the authorized body and the state body annually no later than May 1 of the year following the reporting period, with simultaneous submission: 1) information on planned and actual volumes of regulated services (goods, works) provided; 2) profit and loss statements; 3) information on the actual conditions and amounts of financing of the investment program (project); 4) information on the comparison of the actual performance indicators of the investment program (project) with the indicators approved in the investment program (project); 5) explanation of the reasons for the deviation of the achieved actual indicators from the indicators in the approved investment program (project). Information of a natural monopoly entity on the execution of an investment program (project) is provided by the entity in accordance with Appendix 3 to these Rules, with supporting and supporting materials attached.
According to Appendix No. 3 of the Rules, which is an integral part of the regulatory legal act, the profit and loss statement is submitted in accordance with Appendix 3 of the Order of the Minister of Finance of the Republic of Kazakhstan dated August 20, 2010 No. 422 "On approval of the list and forms of annual financial statements for publication by public interest organizations (except financial organizations)." The Order of the Minister of Finance dated June 28, 2017 No. 404 applies to the legal relations that have arisen, which approved a new list and forms of annual financial statements. Thus, the legislation establishes special requirements not only for the form of information on the implementation of the investment program, but also for the form of the report to be provided simultaneously with the information. There are questions about the proportionality of the sanctions for this composition. In general, the profit and loss statement is presented, all indicators are reflected, there is no distortion of the reporting data, only the reporting form is violated. The fine amounted to 800 MCI – 1,924,000 tenge. The summary for use in the work provides an example of the correct qualification under part 2 of Article 164 of the Administrative Code, however, there are a number of comments in the presentation of the motives for determining the measure of administrative punishment. In relation to a legal entity, guilt in the commission of an administrative offense is not subject to determination. According to the protocol dated May 5, 2018 regarding the State Enterprise "M", the latter is included in the section of the State Register of Natural Monopoly Entities in the Pavlodar region - production, transmission, distribution and supply of thermal energy. In accordance with subparagraph 11) of Article 7 of the Law "On Natural Monopolies", a natural monopoly entity is required to submit an annual report on the implementation of tariff estimates no later than May 1 of the year following the reporting period. According to part 1 of Article 164 of the Administrative Code, administrative liability is provided for failure by a natural monopoly entity to submit a report in violation of the established deadlines to the authorized body responsible for managing natural monopolies. GKP "M" was brought to administrative responsibility by a resolution on an administrative offense case dated August 9, 2017 under part 1 of Article 164 of the Administrative Code, with the imposition of an administrative fine in the amount of 453,800 tenge.
Protection in administrative cases from a Lawyer's office
The procedure for submitting a report on the execution of tariff estimates by a small-capacity entity is regulated by Chapter 6 of the Rules of Simplified State Regulation of the Activities of Small-Capacity Natural Monopolies, approved by Order of the Ministry of National Economy dated December 29, 2014 No. 176. According to paragraph 36 of the Rules, a small-capacity natural monopoly entity submits a report on the execution of tariff estimates to the department of the authorized body by May 1 of this year. for the previous calendar year in the context of each type of regulated services (goods, works) in the form of, according to Appendix No. 1 to these Rules, and simultaneously posts it on its Internet resource or sends an appeal to the department of the authorized body on the need to post a report on the implementation of the tariff estimate on the Internet resource of the department of the authorized body. The report for 2017 has not been provided. An order was issued on the elimination of violations dated May 5, 2018. By a decree dated May 30, 2018, the State Enterprise "M" was brought to administrative responsibility under part 2 of Article 164 of the Administrative Code. In the ruling, the court concluded that the GKP "May-Service", a legal entity, was proven guilty. When imposing a penalty, the court takes into account only one circumstance as a mitigating factor - the admission of GKP "May-Service" of its guilt. With a fine of 577,200 tenge, the court, taking into account the admission of guilt, applied the provisions of Article 829-11 of the Administrative Code and reduced the fine by 30%, imposing an administrative fine of 404,040 tenge. But in such cases, an admission of guilt against a legal entity cannot be justified. The decision also erroneously indicates the prosecutor's right to protest if he disagrees with a judicial act, while he has the right to file an appeal.
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