Comment to Article 316. Construction (reconstruction, restoration, expansion, technical re-equipment, modernization, major repairs) of facilities and their complexes without design (design and estimate) documentation or according to design (design and estimate) documentation that has not been duly examined, except for the requirements established by technical regulations The Code of the Republic of Kazakhstan on Administrative Offences
1. Construction (reconstruction, restoration, expansion, technical re-equipment, modernization, major repairs) of facilities and their complexes without design (design and estimate) documentation or according to design (design and estimate) documentation that has not passed an expert examination in accordance with the established procedure, which requires it, except for the requirements established by technical regulations -
entails a fine for individuals in the amount of one hundred and twenty, for officials - in the amount of one hundred and sixty, for small businesses or non-profit organizations - in the amount of two hundred, for medium-sized businesses - in the amount of three hundred and eighty, for large businesses - in the amount of five hundred and eighty monthly calculation indices.
2. The action provided for in the first part of this article, committed repeatedly within a year after the imposition of an administrative penalty, as well as the failure to eliminate the violation provided for in the first part of this article, which resulted in administrative liability, -
they impose a fine on individuals in the amount of one hundred and sixty, on officials - in the amount of two hundred, on small businesses or non-profit organizations - in the amount of three hundred, on medium-sized businesses - in the amount of six hundred, on large businesses - in the amount of one thousand monthly calculation indices, with the suspension of work.
Part 1 of the commented article provides for administrative responsibility for reconstruction, restoration, expansion, technical re-equipment, modernization, and major repairs of facilities and their complexes without appropriate design (design and estimate) documentation or according to design (design and estimate) documentation that does not have a positive conclusion of non-departmental expertise, if such expertise is necessary, except for the requirements established by technical regulations.
According to article 64-1 of the Law "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan", a comprehensive non-departmental examination of projects in the field of construction of facilities is carried out by expert organizations and carried out by experts certified in accordance with the relevant sections (parts) of feasibility studies or design estimates.
Positive expert opinions are the basis for the approval of the reviewed projects.
In the course of proceedings on administrative offences in relation to the conclusion of a comprehensive non-departmental expert examination of projects in the field of construction of facilities, a judicial examination may be conducted in accordance with the procedure established by the Code of the Republic of Kazakhstan on Administrative Offences.
Projects for the construction of technically simple facilities, financed without the participation of budgetary funds or other forms of public investment, are not subject to mandatory expertise for the following facilities:
1) individual residential buildings designed by licensed persons in accordance with the architectural and planning tasks of the local executive authorities of the capital, cities of republican significance, districts (cities of regional significance). This requirement does not apply to 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) temporary buildings, residential and household premises for seasonal work and animal husbandry;
3) household buildings on the territory of individual household plots, as well as on the plots of gardening and horticultural associations (societies);
4) landscaping on household and suburban areas that does not require changing existing engineering networks;
5) mobile complexes of container and block design, as well as single-storey buildings (structures) for retail facilities, catering facilities and consumer services, erected from collapsible structures and not requiring coordination with sanitary and epidemiological services;
6) open-type parking lots with no more than fifty vehicles, as well as garages with boxes for no more than two vehicles;
7) alterations (re-equipment) of non-industrial premises carried out in existing buildings and not requiring changes in load-bearing structures;
8) protection of engineering networks from electrocorrosion;
9) major repairs of linear engineering networks and structures on them, which do not require changing their position, laying marks, pipe diameter;
10) small architectural forms and fences of territories;
11) outdoor sports grounds, sidewalks, paving around buildings (structures);
12) repair and replacement of technological or engineering equipment units for which the technological resource has been exhausted and which do not require reconstruction or redesign of the enterprise (workshop);
13) reconstruction (redevelopment, re-equipment) of residential and non-residential premises in residential buildings (residential buildings), carried out by licensed persons and not requiring the allocation of additional land (pruning of the territory), not reducing the design strength of structures, not impairing architectural and aesthetic, fire, explosion and sanitary qualities, not harmful environmental impact during operation, as indicated by the corresponding entry of the project author (chief engineer of the project, chief architect of the project);
14) other technically simple buildings intended for personal use by the owners.
For these projects, a comprehensive non-departmental examination can be carried out only at the discretion of the customer.
The object of this administrative offense is relations related to the modification (reconstruction, restoration, expansion, technical re-equipment, modernization, major repairs) of facilities and their complexes.
According to subparagraph 31) of Article 1 of the Law "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan", construction activity is the activity of creating fixed assets for industrial and non-industrial purposes through the construction of new and (or) modification (expansion, modernization, technical re-equipment, reconstruction, restoration, capital repairs) of existing facilities.
Thus, construction activity has two forms, the first is the creation of facilities, the second is the modification of existing ones. Article 314 of the Administrative Code provides for responsibility for the construction of new facilities without design documentation, while Article 316 of the Administrative Code provides for the modification of construction facilities.
Please note that according to paragraph 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) For documentation that has not been duly examined, construction and installation work is suspended in accordance with the Code of the Republic of Kazakhstan on Administrative Offenses. The resumption of construction and installation works is carried out only if there is an appropriate design (design estimate) documentation that has been duly examined.
However, unlike article 314, construction and installation work is not suspended under the first part of Article 316, which contradicts the requirement of the law to suspend the construction of facilities.
The objective side is that the perpetrator carries out construction (reconstruction, restoration, expansion, technical re-equipment, modernization, major repairs of facilities and their complexes) without the necessary design (design and estimate) documentation or without a positive expert opinion on the design (design and estimate) documentation.
The subjects of the offense are:
individuals;
officials;
small business entities;
non-profit organizations;
medium-sized businesses;
subjects of large business.
The subjective side is expressed in the intentional form of guilt.
According to part 1 of Article 718 of the Administrative Code, cases under part one are considered by the bodies carrying out state architectural and construction control and supervision of the quality of construction facilities.
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. In addition to the repetition of the offense, Part two provides for penalties for failure to eliminate the violation provided for in Part one.
According to paragraphs 21), 34) of part 1 of Article 804 of the Administrative Code, the protocol on the second part is drawn up by authorized officials of the following bodies:
State architectural and construction control and supervision bodies
bodies 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 under part two are considered by judges of specialized district and equivalent administrative courts.
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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