Commentary to article 317-1. Violation of the legislation of the Republic of Kazakhstan in the implementation of engineering services (technical supervision and project management) and expert work (project expertise and technical inspection of reliability and stability of buildings and structures) by accredited legal entities The Code of the Republic of Kazakhstan on Administrative Offences
1. Implementation of engineering services (technical supervision and project management) and expert work (project expertise and technical inspection of reliability and stability of buildings and structures) by accredited legal entities with certified experts in violation of the requirements of the legislation of the Republic of Kazakhstan and other regulatory and regulatory legal acts in the field of architecture, urban planning and construction, including:
1) non-compliance of the completed (performed) construction and installation works with the approved design solutions;
2) issuing a positive expert opinion (expert assessment) on the design (design and estimate) documentation, which does not ensure the stability, reliability and strength of the facilities being built or erected;
3) violations at the project implementation stage, including quality, deadlines, acceptance of completed works and commissioning of the facility;
4) issuing conclusions on the technical inspection of the reliability and stability of buildings and structures made in violation of the requirements of approved building codes and containing inaccurate data that may lead to a deterioration in performance, reduced strength, stability of buildings, structures, their parts or individual structural elements;
5) non-compliance with the qualification requirements for accredited legal entities –
entails a fine on legal entities in the amount of five hundred 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, –
entails a fine on legal entities in the amount of seven hundred monthly calculation indices with the deprivation of the certificate of accreditation.
Part 1 of the commented article provides for administrative liability for violation of legal requirements by accredited organizations providing engineering and expert services in the field of construction activities.
Engineering as a sector of the market economy arose a century and a half ago in the UK, when for the first time the services of engineers (and then groups of engineers united into engineering firms) began to be sold, which were in demand by industrialists during the construction of new plants and the modernization of existing ones, and the idea of engineering developed as an activity for the provision of services in the field of construction and operation of industrial facilities and infrastructure.
The integration of design and implementation of innovation and investment projects has led to the emergence of a new type of managers - professional project managers - a qualitatively new stage in the development of production management theory and practice in many industries.
The engineering of investment and construction activities exists in the form of a complex professional activity carried out by so-called engineering companies. Engineering as a professional activity in this context is the provision of services and the production of tangible and intellectual products related to the implementation of investment and construction projects for the creation, operation and development of industrial facilities and infrastructure.
Expert work is a specific procedure for researching project documentation, that is, a set of documents that includes calculations of all systems that the planned facility will include. The examination of the design and estimate documentation is designed to identify errors in the documentation made during its design.
According to article 17 of the Law "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan", identified violations and expert comments should be motivated and justified by references to relevant regulatory legal acts, requirements of urban planning and technical regulations, norms and regulations of state and interstate regulatory documents in the field of architecture, urban planning and construction in the Republic of Kazakhstan. The issuance of advisory comments is not allowed.
We note that Article 280 of the Criminal Code establishes criminal liability for improper performance of expert work or engineering services, which negligently resulted in the death of a person or other serious consequences.
The object of this administrative offense is engineering services (technical supervision and project management) and expert work (project expertise and technical inspection of the reliability and stability of buildings and structures).
The objective side is that the perpetrator violates the requirements of the legislation of the Republic of Kazakhstan and other regulatory and regulatory legal acts in the field of architecture, urban planning and construction, including:
1) non-compliance of the completed (performed) construction and installation works with the approved design solutions;
2) issuing a positive expert opinion (expert assessment) on the design (design and estimate) documentation, which does not ensure the stability, reliability and strength of the facilities being built 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.
3) violations at the project implementation stage, including quality, deadlines, acceptance of completed works and commissioning of the facility;
Such evaluation categories as "quality" and "deadlines" imply compliance with state standards and compliance with the approved project (design decisions), as well as regulatory deadlines for construction.
4) issuing conclusions on the technical inspection of the reliability and stability of buildings and structures made in violation of the requirements of approved building codes and containing inaccurate data that may lead to a deterioration in performance, reduced strength, stability of buildings, structures, their parts or individual structural elements;
5) non-compliance with the qualification requirements for accredited legal entities.
This offense is considered completed from the moment of committing any of the acts that violate the law or regulations.
The subjects of the offense are:
a legal entity authorized to conduct a comprehensive non-departmental expert examination of projects for the construction of facilities;
a legal entity that carries out technical supervision and technical inspection of the reliability and stability of buildings and structures;
a legal entity authorized to manage projects in the field of architecture, urban planning and construction.
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 article being commented on, defines repetition as a qualifying feature, that is, the commission of a similar offense within a year after the imposition of an administrative penalty under the first part.
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 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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