Commentary to article 915. Execution of the resolution regarding compensation for property damage The Code of the Republic of Kazakhstan on Administrative Offences
A decision in the case of an administrative offense regarding compensation for property damage to be recovered in accordance with Article 59 of this Code shall be enforced in accordance with the procedure established by law.
The content of the article is of a blank nature and provides for the execution of the resolution in terms of compensation for damage (harm) caused only by an administrative offense. The content contains an inaccuracy in naming property damage with the outdated term "damage".
On the basis of Article 59, a judge, considering a case of an administrative offense that caused property damage, while deciding on the imposition of an administrative penalty, simultaneously collects such damage if there is no dispute about its amount. And if there is a dispute about the amount of property damage caused by an administrative offense, then compensation for property damage is considered in civil proceedings.
Compensation for property damage in cases of administrative offenses considered by other authorized bodies (officials), in case the guilty person refuses his voluntary compensation, is carried out in civil proceedings.
When making a ruling on an administrative offense, the judge must decide on compensation for property damage to the perpetrators. The legislation does not provide for making a separate resolution on compensation for property damage.
Paragraph 22 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 5 "On the decision of the court in the case of an administrative offense" explains the procedure for issuing a court decision in the case of an administrative offense. In his decision, the judge must specify the exact amount of damage to be recovered.
When resolving the issue of compensation for damages in the framework of administrative proceedings, the relationship characteristic of the plaintiff and the defendant does not arise between the victim and the offender. The damage is subject to recovery in accordance with Part 1 of Article 59 of the Administrative Code in the absence of a dispute about its amount, which must be indicated in the descriptive and motivational part of the resolution. The reasons for the decision on compensation are given by the court in the descriptive and motivational part of the decision. If there are disputes about compensation for material damage, these issues are resolved in civil proceedings, which must be explained to the participants in the proceedings on an administrative offense.
In accordance with Article 6 of the Constitution, public and private property are recognized and equally protected in the Republic of Kazakhstan.
The right of ownership, regardless of its civil law form, can be protected in court. Thus, in accordance with paragraph 2 of Article 9 of the Civil Code, an appeal for protection of a violated right to an authority or management body does not prevent a claim to court for protection of the right, unless otherwise provided by legislative acts.
The civil protection of property and other property rights is understood as a set of means provided for by civil legislation applied in connection with violations committed against these rights and aimed at restoring or protecting the property interests of their owners.
According to paragraph 8 of Article 30 of the Civil Procedure Code of the Republic of Kazakhstan, claims for the restoration of property rights violated by unlawful bringing to administrative responsibility, unlawful use of a measure of procedural coercion or measures to ensure proceedings in an administrative offense case may be filed at the plaintiff's place of residence or location.
According to Part 5 of Article 766 of the Administrative Code, the nature and amount of damage caused by an administrative offense is a circumstance of proof in the case of an administrative offense.
For example, for violation of Article 517 of the Administrative Code, which caused property damage related to violation of the rules of transportation of cargo and baggage, compensation for damage is carried out in accordance with Article 705 of the Civil Code for loss, shortage and damage (damage) of cargo or baggage. The damage caused during the transportation of cargo or baggage is reimbursed by the carrier.:
1) in case of loss or shortage of cargo or baggage - in the amount of the value of the lost or missing cargo or baggage;
2) in case of damage (spoilage) of cargo or baggage - in the amount of the amount by which its value has decreased, and if it is impossible to restore the damaged cargo or baggage - in the amount of its value;
3) in case of loss of cargo or baggage delivered for carriage with a declaration of its value - in the amount of the declared value of the cargo or baggage.
The amount of compensation for the value of the property is determined based on the costs necessary to restore (repair) the damaged property, and (or) the amount of depreciation of the property due to its damage or the value of the lost property at market prices in force in the area at the time of compensation for the value of the property, taking into account the wear and tear of the lost or damaged property. The costs of restoring (repairing) damaged property are confirmed by an estimate or calculation of the costs of its restoration. The documented expenses of the owner of the property for the payment of services related to the valuation of the property, the preparation of estimates and the calculation of costs for the restoration (repair) of damaged property are included in the recoverable value of the property.
The application for compensation for property damage shall specify: the lost or damaged property, the costs of restoring (repairing) the damaged property and (or) the amount of the property markdown due to its damage or the value of the lost property.
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.);
Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);
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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