Comment to Article 314. Production of construction, installation, repair and restoration works during the construction and reconstruction of facilities without duly approved design documentation, except for the requirements established by technical regulations  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. Production of construction, installation, repair and restoration works during the construction and reconstruction of facilities without duly approved design documentation, except for the requirements established by technical regulations -

     entails a fine for officials in the amount of forty, for small businesses - in the amount of two hundred, for medium-sized businesses - in the amount of four hundred, for large businesses - in the amount of seven hundred monthly calculation indices with the suspension of work.

     2. The action provided for in the first part of this article, committed repeatedly within a year after the imposition of an administrative penalty, -

     entails a fine for officials in the amount of eighty, for small businesses - in the amount of four hundred, for medium-sized businesses - in the amount of eight hundred, for large businesses - in the amount of one thousand two hundred monthly calculation indices, with the deprivation of a license and suspension of work.

     Part 1 of the commented article provides for administrative responsibility for carrying out construction, installation, repair and restoration work during the construction and reconstruction of facilities without approved design documentation.

     According to paragraph 6 of Article 64-1 of the Law of the Republic of Kazakhstan dated July 16, 2001 No. 242-II "On Architectural, Urban planning and construction activities in the Republic of Kazakhstan", approval and further implementation of construction projects (feasibility studies or design estimates) subject to mandatory comprehensive non-departmental expertise is not allowed without its positive conclusion.

     The procedure for conducting a comprehensive non-departmental examination of feasibility studies and design estimates intended for the construction of new buildings, as well as changes (reconstruction, expansion, technical re-equipment, modernization and capital repairs) of existing buildings and structures, their complexes, engineering and transport communications, regardless of sources of financing, was approved by the order of the Minister of National Economy of the Republic of Kazakhstan April 1, 2015, No. 299.

     According to Article 60 of the Law "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan", without design (design estimates) documentation or according to sketches (draft designs), the customer (owner), in coordination with local executive bodies of cities of republican significance, the capital, districts (cities of regional significance), may carry out:

     1) construction of individual residential buildings, except for the construction of individual residential buildings above two floors located in areas of increased seismic hazard or with other special geological (hydrogeological) and geotechnical conditions requiring special design solutions and measures for their implementation;

     2) the construction of temporary buildings located on their own private plots or plots of gardening and horticultural associations, as well as residential and (or) household premises for seasonal work and animal husbandry;

     3) reconstruction (redevelopment, re-equipment) of residential and non-residential premises in residential buildings (residential buildings), which does not require the allocation of additional land (pruning of the territory), is not associated with any changes in load-bearing structures, engineering systems and communications, does not impair architectural and aesthetic, fire, explosion and sanitary qualities, does not having a harmful effect on the environment during operation;

     4) changes to other technically simple structures intended for the personal use of citizens.

     The object of this administrative offense is the production of construction, construction and installation, repair and restoration work during the construction and reconstruction of facilities.

     The objective side is that during the construction and reconstruction of facilities, the culprit carries out construction, installation, repair and restoration work without duly approved design documentation.

     According to subparagraph 13) of Article 1 of the Law "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan", the project documentation includes:

     projects of landscaping of the territory, its external design, placement and installation (construction) of works of monumental or decorative art;

     urban planning projects are projects containing the idea of integrated urban planning for the organization, development and development of territories and settlements or their parts (general scheme of organization of the territory of the Republic of Kazakhstan, interregional schemes of territorial development, integrated schemes of urban planning of territories, general plans of settlements, detailed planning projects, industrial zone planning projects, building projects, master plans facilities and complexes, landscaping and landscaping projects, and other planning projects);

     construction project (construction project) - design (design and estimate) documentation containing spatial planning, constructive, technological, engineering, environmental, economic and other solutions, as well as estimates for the organization and management of construction, engineering preparation of the territory, landscaping. Construction projects also include projects to preserve the construction of unfinished facilities and to postulate facilities that have run out of resources.;

     an architectural project containing an architectural idea, - an independent project for the construction of a structure (monument), the design of which requires the participation of an architect, or part of the design (design estimates) documentation, including architectural, artistic, compositional and spatial planning solutions for the object, taking into account social, economic, functional, technological, engineering, fire protection, anti-explosive, sanitary and hygienic, environmental and other requirements, and completed to the extent necessary for the development of a construction project or other documentation for the construction of the facility.

     It should be noted that the subject of article 312 and this article coincide. Thus, article 312 provides for a sanction for performing pre-design, survey, design, construction and installation works in violation of the requirements of legislation and state standards in the field of architectural, urban planning and construction activities, with the exception of the requirements established by technical regulations.

     At the same time, Article 314 is based on the fact that the sanction is provided for violation of paragraph 6 of Article 64-1 of the Law of the Republic of Kazakhstan dated July 16, 2001 No. 242-II "On Architectural, Urban planning and construction activities in the Republic of Kazakhstan", that is, for performing construction and installation works in violation of the requirements of legislation in the field of architectural, urban planning and construction activities.

     The subjects of the offense are:

     officials;  

     small business entities;  

     medium-sized businesses;  

     subjects of large business.

     The subjective side is expressed in the intentional form of guilt.

     Part 2, unlike the first part of the commented article, defines repetition as a qualifying feature, that is, the commission of a similar offense within a year after the imposition of an administrative penalty in the first part.

     According to the points 2), 21), 22), 32), 34) In part 1 of Article 804 of the Administrative Code, a protocol on this offense is drawn up by authorized officials of the following bodies:  

     authorized body in the field of civil protection;

     State architectural and construction control and supervision bodies;

     bodies of sanitary and epidemiological supervision;

     authorized body in the field of industrial safety;

     authorities that are licensors or authorized to issue permits of the second category in accordance with the legislation.

     Based on Article 684 of the Administrative Code, cases are considered by judges of specialized district and equivalent administrative courts.

     The sanction is not limited to a fine. According to paragraph 11 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No. 7 "On certain issues of the application by courts of the norms of the Special Part of the Code of Administrative Offenses of the Republic of Kazakhstan", the sanction of Article 314 of the Administrative Code provides for additional penalties in the form of suspension of work. This penalty is subject to application in accordance with Article 48 of the Administrative Code.

     According to Part 2, the sanction includes, among other things, the deprivation of a license.

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.);  

     Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);

     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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