Comment to Article 317. Violation of the legislation of the Republic of Kazakhstan in carrying out expert work and engineering services of the Code of the Republic of Kazakhstan on Administrative Offenses  

     1. The assumption by the persons exercising the author's supervision that the construction and installation works performed (performed) do not comply with the approved design decisions -

     entails a fine on individuals in the amount of one hundred and eighty monthly calculation indices with the suspension of the validity of the expert's certificate for the right to conduct copyright supervision for a period of six months.

     2. Issuance by persons carrying out project expertise of a positive expert opinion (expert assessment) on the design (design estimate) documentation that does not comply with the requirements of the legislation of the Republic of Kazakhstan and does not ensure the stability, reliability and strength of the facilities being built or erected, –

     entails a fine on individuals in the amount of one hundred and eighty monthly calculation indices with the suspension of the expert's certificate for the right to carry out project expertise for a period of six months.

     3. Violations committed by persons carrying out technical supervision at the project implementation stage, including quality, timing, acceptance of completed works and commissioning of the facility, –

     entails a fine on individuals in the amount of one hundred and eighty monthly calculation indices with the suspension of the validity of the expert's certificate for the right to conduct technical supervision for a period of six months.

     3-1. Issuance by persons carrying out a technical inspection of the reliability and stability of buildings and structures of a conclusion made in violation of the requirements of approved building codes and containing unreliable data that may lead to a deterioration in performance, reduced strength, stability of buildings, structures, their parts or individual structural elements., –

     entails a fine on individuals in the amount of one hundred and eighty monthly calculation indices with the suspension of the expert's certificate for the right to carry out a technical inspection of the reliability and stability of buildings and structures for a period of six months.

     4. Actions (inaction) provided for in parts one, two, three and 3-1 of this Article, committed repeatedly within a year after the imposition of an administrative penalty, –

     they entail a fine on individuals in the amount of two hundred monthly calculation indices with the deprivation of an expert's certificate for the relevant type of service and specialization and the prohibition of activities for the right to carry out expert work and engineering services for a period of three years.

     Part 1 of the commented article provides for administrative responsibility for the assumption by persons exercising author's supervision that construction and installation works performed (performed) do not comply with approved design decisions.

     According to paragraph 2 of Article 34 of the Law "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan", author's supervision is mandatory during the entire period of construction (reconstruction, restoration, expansion, technical re-equipment, modernization, capital repairs) of the facility or conservation of the construction of unfinished facilities at the expense of funds provided for in the design (design and constructionestimated) documentation for the construction of facilities in accordance with applicable regulations.

     According to the Law, persons exercising copyright supervision are required to:

     1) ensure that the design decisions provided for in the approved project are accurately implemented during construction;

     2) to carry out regular and proper maintenance of the journal of copyright supervision;

     3) participate in the registration and signing of certificates of inspection of hidden works and intermediate acceptance of responsible structures;

     4) to make timely decisions on making reasonable changes to the approved design (design and estimate) documentation in accordance with the procedure established by the legislation of the Republic of Kazakhstan;

     5) in case of non-fulfillment or improper fulfillment by the contractor (general contractor) of the instructions, inform the customer about this, as well as inform the relevant department of the state architectural and construction control and supervision body.;

     6) fill out appendices to the certificate of acceptance of the facility for operation with actual measurements.

     The object of an administrative offense is the quality of the author's supervision carried out during the construction of facilities.

     According to subparagraph 1) of Article 1 of the Law "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan", author's supervision is the author's authority to monitor:

     development of a construction project (construction documentation) carried out by the author(s) of an architectural and urban planning work;

     the implementation of a construction project carried out by its developers, including the author(s) of an architectural or urban planning work.

     Modern construction conditions are constantly increasing the requirements for the quality of construction products. An important tool for ensuring product quality in such conditions can be a well-built and well-established system of design supervision of design organizations, implemented directly on the customer's construction site and characterized by a high volume of contacts with contractors.

     The fundamental difference between design supervision services and technical supervision is direct participation in the execution of design work and supervision of the compliance of project decisions with the actual construction result, whereas technical supervision is carried out on individual elements of the facility or its complexes, but technical supervision specialists do not take direct part in design work, which, to some extent, may affect the reduction of the effectiveness of project changes.

     The objective side is that the perpetrator violates the mandatory requirements for the copyright supervision procedure.

     The procedure for organizing and conducting supervision of the construction of new buildings, reconstruction, modernization, technical re-equipment, major repairs and restoration of existing buildings, structures and their complexes, including engineering infrastructures and communications (facilities and networks of electricity, water supply, gas supply, heat supply, sewerage, automation, telecommunications, security and fire systems, sound and technical systems, etc.) including landscaping of facilities, regardless of the forms of ownership and departmental subordination of project developers, the Methodological Document of the Republic of Kazakhstan "Author supervision of the construction of buildings and structures" /State standards in the field of architecture, urban planning and construction/ establishes.

     The subjects of the offense are the persons exercising the author's supervision:

     the author (developer) of the project;

     an expert who has the appropriate certificate for this type of activity and participated in the development of the project;

     an expert with a relevant certificate who has not previously participated in the development of the project (if it is reasonably impossible for the author of the project to carry out supervision).  

     The subjective side is expressed in an intentional or careless 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 provides for administrative responsibility for issuing a positive expert opinion (expert assessment) on design (design estimate) documentation that does not comply with the requirements of the legislation of the Republic of Kazakhstan and does not ensure the stability, reliability and strength of facilities under construction or erected.

     The note to Article 322 of the Administrative Code establishes the following:

     Strength is understood as the ability of a material, structure, product, their interface nodes, the soil of the base of a building and structure to perceive, without collapsing, the calculated values of loads and impacts.

     Stability refers to the ability of a building or structure to maintain a state of stable equilibrium under the influence of calculated impacts and loads.

     Reliability refers to the ability of a building, structure, its engineering systems, load-bearing and enclosing structures to perform functions defined by the values of the normalized indicators.

     The object of this administrative offense is expert work, that is, work on the examination of projects and conducting a technical survey of the reliability and stability of buildings and structures.

     The objective side is that the culprit, despite the inadequate design and estimate documentation, which does not allow ensuring the stability, reliability and strength of construction facilities, issues a positive expert opinion.

     The procedure for issuing expert opinions on urban planning and construction projects (feasibility studies and design estimates) was approved by Order No. 305 of the Minister of National Economy of the Republic of Kazakhstan dated April 2, 2015.

     The subjects of the offense are those who carry out project expertise.

     Full-time employees of an expert organization or temporarily engaged by these organizations as freelance experts to perform a comprehensive non-departmental expertise on a separate section (part) of the project.

     The subjective side is expressed in an intentional or careless form of guilt.

     According to part 1 of Article 718 of the Administrative Code, cases under part two are considered by the bodies carrying out state architectural and construction control and supervision of the quality of construction facilities.

Part 3 provides for administrative responsibility for violations committed by persons carrying out technical supervision at the project implementation stage, including quality, timing, acceptance of completed works and commissioning of the facility.

     The object of this administrative offense is technical supervision, which is the supervision of construction at all stages of the project, including quality, timing, cost, acceptance of completed works and commissioning of facilities.

     In this case, such evaluation categories as "quality" and "deadlines" imply compliance with state standards and compliance with the approved project (design decisions), as well as regulatory construction deadlines.

     The objective side is that the perpetrator commits violations at the project implementation stage, including quality, timing, acceptance of completed work and commissioning of the facility. In other words, the person carrying out technical supervision does not perform or improperly performs his duties to control the quality and timing of construction work.

     In everyday practice, representatives of technical supervision, assessing the quality of construction work, may make measurements of insufficient quality. This is due to the fact that the customer's organization may not have the appropriate equipment or supervising specialists may not have sufficient experience to carry out certain types of measuring work.  

     According to the requirements of paragraph 5 of Article 34-1 of the Law "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan", persons carrying out technical supervision are required to:

     1) ensure supervision of the contractor's (general contractor's) compliance with the requirements of organizational and technological documents defining the technological process of construction and installation work;

     2) ensure high-quality performance of construction and installation work;

     3) ensure supervision of compliance at the facility with the requirements specified in the sub-paragraphs 1), 3), 4), 5) and 6) paragraph 3 of Article 31-1 of this Law;

     4) to carry out regular and proper maintenance of the technical supervision log;

     5) participate in the registration and signing of certificates of inspection of hidden works and intermediate acceptance of responsible structures;

     6) submit on a monthly basis to the state architectural and construction control and supervision body a report on the condition and progress of the construction of the facility;

     7) in case of non-fulfillment or improper fulfillment by the contractor (general contractor) of the instructions, inform the customer about this, as well as inform the relevant department of the state architectural and construction control and supervision body.;

     8) to monitor the execution of their instructions entered in the journal of technical supervision.

     The subjects of the offense are persons who carry out technical supervision, that is, experts who have a certificate for technical supervision of the appropriate level of responsibility.

     The subjective side is expressed in an intentional or careless form of guilt.

     According to part 1 of Article 718 of the Administrative Code, cases under part three are considered by the bodies carrying out state architectural and construction control and supervision of the quality of construction facilities.

     Part 3-1 was supplemented by the Law of the Republic of Kazakhstan dated October 28, 2015 No. 366-V "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on architectural, urban planning and construction activities" and provides for administrative responsibility for issuing an opinion in spite of violations of the requirements of approved building regulations and containing false data that may entail deterioration of operational qualities, decrease in strength, stability of buildings, structures, their parts or individual structural elements.

     The object of this administrative offense is a technical examination of the reliability and stability of buildings and structures, which is a type of expert work that determines the actual condition of buildings and structures and their elements, reliability and stability, the possibility of further operation of buildings and structures, obtaining a quantitative assessment of the actual quality indicators of structures, taking into account changes occurring over time, to establish the composition and scope of major repairs, modernization or reconstruction at the facility, as well as changes to the target.

     The objective side is that the perpetrator allows the issuance of an opinion executed in violation of the requirements of approved building regulations and containing inaccurate data that may lead to a deterioration in performance, reduced strength, stability of buildings, structures, their parts or individual structural elements.

     According to the Rules for the Technical inspection of the Reliability and Stability of Buildings and Structures, approved by the Order of the Minister of National Economy of the Republic of Kazakhstan dated November 19, 2015 No. 702, an expert or an organization performs the following functions when conducting a technical inspection of the reliability and stability of buildings and structures:

     1) requests initial data from the Survey Customer: existing design and estimate documentation, an expert opinion, an opinion on engineering and geological surveys, executive and technical documentation, permits, title documents;

     2) conducts a visual inspection with photographic fixation of defects;

     3) provides the Customer with a program of actions with locations for necessary openings of load-bearing structures, for the organization and execution by the Customer of all necessary actions to prepare the facility for technical inspection;

     4) conducts a preliminary study and analysis of the provided source data;

     5) conducts a detailed instrumental examination of the main load-bearing and enclosing structures, including foundations and foundations;

     6) when conducting a detailed instrumental examination, an accredited specialized laboratory is involved.;

     7) conducts an engineering geodetic survey of the entire surveyed object and its structural elements to identify deviations from regulatory requirements;

     8) verifies the quality of building materials, structures and products used at facilities, the organization of their laboratory tests in accordance with standards and other regulatory and technical documents in force in the Republic of Kazakhstan, and the availability of documents certifying quality (technical passports, certificates, laboratory test results, etc.);

     9) conducts a study of the survey results;

     10) performs a verification calculation of the building (structure) in the recommended software packages, taking into account the survey results and laboratory data;

     11) conducts an engineering analysis of all the data obtained (analysis of the initial data, the results of the survey and verification calculations, with the definition of the category of operability of structures);

     12) draws up an expert opinion based on the results of the engineering analysis of the conducted technical survey with the necessary appendices on the actual data of the facility (plans, sections, executive surveys of load-bearing structures, photo application, laboratory protocols, supporting materials) with conclusions on the results of the conducted technical survey of the reliability and stability of the facility;

     13) based on the conclusions drawn, develops recommendations for strengthening (restoring) the necessary structures.;

     14) issues to the Customer an expert opinion on the technical inspection of the facility with conclusions and recommendations for strengthening (restoring) the necessary structures.

     The subjects of the offense are persons who have an expert's certificate for a technical inspection of the reliability and stability of buildings and structures.

     The subjective side is expressed in an intentional or careless form of guilt.

     According to part 1 of Article 718 of the Administrative Code, cases under Part 3-1 are considered by the bodies carrying out state architectural and construction control and supervision of the quality of construction facilities.

     Part 4 defines repetition as a qualifying feature, that is, the commission of similar offenses within a year after the imposition of an administrative penalty in parts 1-3 to 1-1.

     According to paragraph 21) of part 1 of Article 804 of the Administrative Code, a protocol on this offense is drawn up by authorized officials of the state architectural and construction control and supervision bodies.

     Based on Article 684 of the Administrative Code, cases under part four 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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