Commentary to article 153. Illegal business The Code of the Republic of Kazakhstan on Administrative Offences
Engaging in prohibited types of business activities if this act has caused major damage to a citizen, organization, or State, or is associated with the extraction of large-scale income or the production, storage, transportation, or sale of excisable goods on a significant scale, if these actions do not contain signs of a criminal offense., -
entails a fine on individuals, small business entities in the amount of thirty, on medium-sized businesses - in the amount of forty, on large businesses - in the amount of fifty percent of the amount of damage caused, the amount of income extracted and the value of excisable goods obtained as a result of illegal entrepreneurship.
Notes.
1. Major damage in Articles 153 and 155 of this Code is recognized as damage caused to a citizen in the amount not exceeding one thousand monthly calculation indices, or damage caused to an organization or the state in the amount not exceeding ten thousand monthly calculation indices.
2. In Articles 153 and 155 of this Code, large-scale income is recognized as income, the amount of which does not exceed ten thousand monthly calculation indices.
3. In this article, a significant amount is recognized as such a quantity of goods, the cost of which does not exceed one thousand monthly calculation indices.
The commented article establishes administrative liability for engaging in prohibited types of business activities if this act has caused major damage to a citizen, organization or state, or is associated with the extraction of large-scale income or the production, storage, transportation or sale of excisable goods on a significant scale.
The offender is brought to administrative responsibility under the commented article only if there are no signs of a criminally punishable act in the offender's actions. Otherwise, offenders - individuals or officials of a legal entity - are subject to criminal liability for illegal entrepreneurship in accordance with the norms of the Criminal Code. In this regard, initially, the act of a person engaged in illegal entrepreneurship should be checked by law enforcement agencies for the presence or absence of signs of a criminal offense and grounds for bringing the perpetrator to criminal responsibility.
The generic object of the offense provided for in Article 153 of the Administrative Code is the procedure established in the legislation of the Republic of Kazakhstan and protected by the state for conducting business in the Republic of Kazakhstan.
The direct object of the offense provided for in Article 153 of the Administrative Code is the prohibition of illegal entrepreneurship established by the legislation of the Republic of Kazakhstan (directly prohibited in the legislative acts of the Republic of Kazakhstan for the conduct of entrepreneurial activities by business entities).
The subjects of the offense provided for in Article 153 of the Administrative Code are individuals and legal entities-business entities that have violated the legislative ban on certain types of entrepreneurial activities in the Republic of Kazakhstan and thereby caused major damage to the state, organization or citizen, received large income from illegal entrepreneurship or carried out the production, storage, transportation or sale of excisable goods in significant amounts. sizes.
The subjective side of the unlawful act provided for in Article 153 of the Administrative Code for individual offenders is characterized by guilt in the form of intent or negligence. The guilt of a person is revealed by his mental attitude towards the illegal acts committed by him and their harmful consequences.
The subjective side of offenses, the subjects of which are legal entities, is not subject to determination due to the existence of a legal requirement to establish guilt as a condition for bringing to administrative responsibility, only in relation to individuals. According to the legislation of the Republic of Kazakhstan on administrative responsibility, legal entities are administratively liable for the mere fact that they have committed an illegal act or omission, for which administrative liability is provided for in the Administrative Code, without taking into account the guilt of the officials of the legal entity who committed this act.
The objective side of the offense provided for in the commented article is characterized by the commission by a person of illegal (and for individuals – also guilty) actions, expressed in the implementation of types of entrepreneurial activities prohibited by legislative acts of the Republic of Kazakhstan and causing major damage to a citizen, organization or state, as well as involving the receipt of income on a large scale or excisable goods on a significant scale.
According to paragraph 1 of Article 10 of the Civil Code and paragraph 1 of Article 2 of the PC RK, entrepreneurship is an independent, initiative activity of citizens, oralmans and legal entities aimed at generating net income through the use of property, production, sale of goods, performance of works, provision of services, based on the right of private ownership (private entrepreneurship) or on the right of economic management. management or operational management of a state-owned enterprise (state entrepreneurship). Entrepreneurial activity is carried out on behalf of, at the risk and under the property responsibility of the entrepreneur.
In accordance with paragraph 2 of Article 10 of the Civil Code, the state guarantees freedom of entrepreneurial activity and ensures its protection and support. As a general rule, according to paragraph 2 of Article 5 of the PK PK, business entities have the right to carry out any type of entrepreneurial activity that is not prohibited by the laws of the Republic of Kazakhstan. In accordance with paragraph 5) paragraph 3 of art. 10 of the Civil Code, the rights of entrepreneurs engaged in activities not prohibited by law are protected, inter alia, by establishing by legislative acts a list of works, types of goods and services that are prohibited for private entrepreneurship, prohibited or restricted for export or import.
In cases stipulated by the legislative acts of the Republic of Kazakhstan, the implementation of certain types of entrepreneurship in the Republic of Kazakhstan may be directly prohibited by the State.
For example, by virtue of a direct legislative provision in paragraph 1 of Article 30 of the PC of the Republic of Kazakhstan, all other individuals, except citizens of the Republic of Kazakhstan, oralmans and persons equated to them in accordance with international treaties, are prohibited from carrying out such type of entrepreneurial activity as individual entrepreneurship in the Republic of Kazakhstan.
Engaging in types of entrepreneurial activity prohibited in the legislative acts of the Republic of Kazakhstan is illegal entrepreneurship and entails liability in accordance with the commented article.
The objective side of the administrative offense provided for in the commented article does not cover illegal business activities without registration, without obtaining a permit or without sending a notification, when registration, obtaining a permit or sending a notification is required by the requirement of legislative acts. These illegal acts of conducting business without registration, permission or notification form an independent part of an administrative offense provided for in Article 463 of the Administrative Code. Conducting business without registration or without a special permit (license) in cases where such a permit (license) is required, in the banking sector, the conduct of illegal banking activities (banking operations) forms an independent administrative offense provided for in art. 155 of the Administrative Code.
Illegal entrepreneurship does not objectively cover illegal acts carried out by an unauthorized person in an activity classified as a state monopoly. The independent composition of this administrative offense and the administrative responsibility for its commission are established in Part 2 of art. 160 of the Administrative Code.
The objective side of illegal entrepreneurship also does not cover illegal acts of entrepreneurship by persons for whom the legislation of the Republic of Kazakhstan prohibits entrepreneurship (civil servants and persons equated to them, military personnel, employees of law enforcement agencies and special state bodies (National Security Committee, foreign Intelligence Service, state security service), lawyers, notaries). Engaging in entrepreneurial activity by a person for whom the legislation of the Republic of Kazakhstan prohibits such activities constitutes an independent administrative offense under Article 154 of the Administrative Code.
The offense provided for in the commented article is considered to have been committed at the moment when a person, after carrying out prohibited types of business, caused material damage to the state, organization or citizen, received large-scale income from illegal business, or received significant amounts of excisable goods as a result of illegal business.
According to notes 1, 2 and 3 to the commented article, major damage in the commented article is damage caused to a citizen in the amount not exceeding 1,000 MCI, or damage caused to an organization or state in the amount not exceeding 10,000 MCI. Accordingly, income on a large scale in the commented article is recognized as income, the amount of which does not exceed 10,000 MCI. A significant amount of excisable goods is a quantity of goods whose value does not exceed 1,000 MCI.
The composition of an administrative offense provided for in Article 153 of the Administrative Code is material. To bring to administrative responsibility for its commission, it is necessary to establish the fact that the offender has caused material damage to the state, organization or citizen and its size. In addition, by virtue of the direct indication in the sanction of the commented article, the fine imposed on the offender must be calculated from the amount of material damage caused, from the amount of income extracted and the value of excisable goods obtained as a result of illegal entrepreneurship. In this regard, the amount of material damage caused, the amount of income extracted, or the value of excisable goods obtained as a result of illegal entrepreneurship are subject to mandatory determination when bringing the offender to administrative responsibility under the commented article. Accordingly, without establishing the above facts of causing material damage, obtaining income from illegal entrepreneurship, or obtaining excisable goods as a result of illegal entrepreneurship, a person cannot be brought to administrative responsibility under the commented article.
An administrative penalty in the form of a fine is imposed for committing an offense under Article 153 of the Administrative Code.
The amount of the fine for committing an offense under Article 153 of the Administrative Code is differentiated depending on the legal status of the offender, and if the offender is a business entity, it also depends on which category of business entities he belongs to. In this regard, the body bringing the offender to administrative responsibility must first establish the legal status of this person and the category of entrepreneurship to which he belongs before bringing a person to justice.
Depending on the legal status of the offender and the business category to which he belongs, the amount of the fine is:
- for individuals and small businesses – 30 percent of the amount of damage caused, the amount of income extracted and the value of excisable goods obtained as a result of illegal entrepreneurship,
- for medium–sized businesses - 40 percent of the amount of damage caused, the amount of income extracted and the value of excisable goods obtained as a result of illegal entrepreneurship,
- for large business entities – 50 percent of the amount of damage caused, the amount of income extracted and the value of excisable goods obtained as a result of illegal entrepreneurship.
The amount of fines depends on the amount of damage caused, the income earned, or the value of excisable goods obtained as a result of illegal business. The amount of material damage, the amount of income extracted from illegal entrepreneurship, or the value of excisable goods obtained as a result of illegal entrepreneurship are subject to determination by the court from the primary documents of the offender or other persons who had property relations with the offender before bringing him to justice under the commented article.
The case of an administrative offense provided for in the commented article is being considered and an administrative penalty is imposed by the court on the offenders for its commission.
Officials of state revenue bodies have the right to draw up protocols on administrative offenses provided for in the commented article.
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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