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AL-FARABI KAZAKH NATIONAL UNIVERSITY
D. A. Ospanova A. B. Smanova
ADMINISTRATIVE LAW OF REPUBLIC OF KAZAKHSTAN Educational manual
Almaty «Qazaq University» 2018
UDС 342.9 (075.8) LBC 67.401 я 73 O-83 Recommended for publication by the decision of the Academic Council of the Faculty of Law, Editorial and Publishing Council of Al-Farabi Kazakh National University (Protocol №4 dated 29.12.2017)
Reviewers: Doctor of juridical sciences, professor D.M. Baymahanova Candidate of juridical science, associate professor R.K. Abilsheeva
Ospanova D.A. Administrative law of Republic of Kazakhstan: educational manual / D.A. Ospanova, A.B. Smanova. – Almaty: Qazaq University, 2018. – 156 p. ISBN 978-601-04-3248-2 In a manual the abstract of lectures on administrative law, the list of regulations and the recommended literature is given, tasks for independent works of students, practical tasks of application of regulations are developed, subjects course and theses, the glossary of the main terms used in a training course is formulated, the list of questions for carrying out examination and current control is defined. It is intended to students and undergraduates and also teachers of law departments of the universities. Published in authorial release.
UDС 342.9 (075.8) LBC 67.401 я 73 ISBN 978-601-04-3248-2
© Ospanova D.A., Smanova A.B., 2018 © Al-Farabi KazNU, 2018
In the Message of the President of Kazakhstan to the people of Kazakhstan «Kazakhstan in new global reality: growth, reforms, development», sounded in November, 2015, it is marked that «Today a lot of things depend on us who began our Great Kazakhstan way and the idea of Mangilik El. We have strategy of actions on long-term, medium and near-term outlook … Now and in any other time our principal anti-recessionary stratagem is identical to three simple, but important concepts: growth, reforms, development … The second are reforms. They provide stability of economy, society and state. Now we realize «the Plan of the Nation. Hundred specific steps». They are comparable on the scale to those scale reforms which we undertook in the nineties. To us more deep reforming of the state and corporate management, financial and fiscal sectors is vital. The third is a development. In the XXI century the continuous upgrade of all spheres of society becomes the main factor of development. We carry operation on scale conversion of all state, public and private institutes on the principles of Society of Universal Work, high social responsibility, the address help to the most vulnerable segments of the population». In this regard, in 2016 it is necessary to take specific measures for demarcation of responsibility and powers between center and regions, to strengthen local executive bodies. Executive power is the main conductor of all political, economic and social reforms occurring in Kazakhstan more than twenty years. Still earlier in the fundamental Message «Kazakhstan-2050» the President of the country N.A. Nazarbayev has set the task: «to create effective, modern public service and structure of management which would be optimum for market economy for Kazakhstan; to create the government capable to realize the priority purposes; to build the state guarding national interests». Now there is a steady growth of the importance of executive power, both in legislative process, and in other areas of political and 3
public life, her dominant position among other authorities in the modern democratic countries. Such situation is explained this stage of development of society by paramount value the carried-out this branch of the power of administrative function in connection with complication of public processes, rapid information technology development, threat to security, etc. The system of executive authorities has to be not only the effecttive system of functioning – it has to be the effective system of development, both the state, and society which has created her. The science of administrative law is designed to analyze the public relations in the sphere of public administration and the system of the administrative precepts of law regulating them, to investigate and generalize regularities of legal regulation of the organization and activity of executive authorities. Public administration represents a social phenomenon of politically organized society. Emergence of public administration has been connected with evolution of industrial society, it is a product of development of the market economy demanding the corresponding regulation from the state. Strengthening of public administration has happened on a threshold of the 19-20th centuries when in the course of political socialization technocratic superiority of the bureaucratic organization over other forms of government was designated. So, public administration (English public administration) – activities of public authorities and their officials for the practical embodiment of the political policy (public policy) developed on the basis of the corresponding procedures. It is necessary to tell that each branch of management is served by various branches of the legislation (financial, labor, etc.), but administrative and legal institutes hold special position. It is caused by backbone functions of administrative law that, in turn, forms and fixes systemically – the operating functions of public administration. The administrative law studies legal status of subjects and objects of public administration, legal forms and methods of management, ways of law enforcement and discipline in public administration, develops the scientific problems connected with improvement of the general, branch and interindustry public administration. As a result of an in-depth and comprehensive investigation of these regularities the evidence-based recommendations and offers 4
directed to change and improvement of administrative precepts of law and, first of all to increase in their efficiency are developed. In the last decades in Kazakhstan there are processes demonstrating the known reduction of specific weight of public administration by some areas of life, first of all economy. It doesn't belittle a role of executive power and state and administrative activity in general. The office role of the state as main subject of management remains also in the conditions of privatization, privatization, incorporating, formation of private property institutions, development of local government. The specified public phenomena aren't shown in itself, spontaneously. They demand not only the state support, protection, but also regulation.
ABSTRACT OF LECTURES
CONCEPT AND STAGES OF DEVELOPMENT OF EMERGENCE OF ADMINISTRATIVE LAW
Keywords: branch of the right, science, discipline, history, development stages, executive power, public administration, public order, safety, police activity, legal system, France, Germany.
The administrative law is the key branch of the right studying a legal side of public administration. The system of administrative law consists of the general and special parts. The general part includes the main conceptual framework, institute of public service, forms and methods of public administration, institute of administrative coercion and administrative responsibility. A special part of this discipline considers features of public administration and regulation in all separately taken spheres of activity of society and the state. Public authorities – the most most, most powerful part of state machinery. She directly disposes of huge budgetary, natural and other resources of the country. Public authorities have subordinated almost all existing means of physical coercion – troops, police, counterintelligence, correctional institutions, lunatic asylums, etc. Which power it possesses – huge social force. Her correct use seriously promotes that the country became prospering. The subjectivity, incompetence, an arbitrariness, abuses at implementation of the government does to society enormous harm. The efficiency in implementation of safety of citizens, societies, the countries, implementation of social and economic programs, constitutional rights and freedoms of citizens in many respects depends on activity of public authorities. 6
According to the Constitution of PK 1993, and then and 1995 the government in the Republic of Kazakhstan is subdivided into three branches: legislative, executive and judicial. Executive power represents the independent branch of the power consisting of a certain system of bodies which main objective is ensuring public administration in general and separately each branch and implementation of laws and other normative legal acts in all territory and in all branches. Stories of administrative law and definition of his subject at a boundary of 19-20 centuries. The analysis of first principles of administrative law shows that the family tree of norms of this branch goes to the legal systems of the Ancient East and antique the West (the code of Hammurapi, public law of Ancient Rome), but their proliferation and association to organizational set, in branch of the right it falls on Modern and Latest times. Emergence and development of this branch have caused three factors: – need to regulate protection of public order in the large cities, – need for a regulation of public administration, – ensuring realization of the subjective rights of citizens. The foundation for development of science of administrative law was laid by a kameralistika – science about finance, economy, economy, management. Roots of this oldest science go to the sixteenth century. In antique time and in the Middle Ages at feudalism life of people generally proceeded in villages and towns where all well each other knew and where a problem of public order in sense of protection of life, health, the property and honor wasn't relevant. Rural and city communities by own efforts performed functions of police. Such community attentively watched all visitors and those members who were inclined to commission of offenses and various excesses. Society treated those who broke laws and disturbed the public peace extremely severely and subjected to cruel criminal repression. Subsequently at the beginning of 19 century the Fr. thinker Joseph de Mestr will tell that in medieval Europe people were brought up by two characters – the executioner and the priest. But to replace the Middle Ages with their crusades, fires of inquisition and the lobnoye mesto in each large settlement Renaissance differing in softer customs, intensive cultural development and economies, emergence of a large number of the large cities such as Moscow, 7
Paris, Lyon, Venice, Cologne has come. Existence in them of the places which had public value became one of essential signs of such cities: streets, squares, fairs and markets, shops, baths and drugstores. Processes of an urbanization both in Western Europe, and in Russia led to a congestion in these parts not only the commerce and industry population and citizens, but also tramps, beggars, deserters, Roma, runaway serfs, etc. that naturally, led to growth of crime rate, constantly threatened public order, spoiled a social landscape. The central power which in 17-18 centuries constantly amplified and turned in absolute in France, Sweden, Prussia and Russia reacts to a new situation in the cities creation of the uniform police space and the special device designed to carry out quickly and professionally fight against crime and to protect public order. The first beginnings of police force are observed in France at Richelieu, but the organization of this device receives end during Ludovic's era 14. The similar phenomena occur in Russia where the first police institutions are created by Pyotr 1 and for only 18 century gradually cover all cities of the country. The regulations issued by the Russian administration and police, since Petrovsky times, have united in the police legislation. The general opinion of politseist of 18-19 centuries on police activity have given the following: these are activities for protection of a public and civil order, the existing benefits, personal and property. The police power of the state is shown in supervision, the legislation, in precautionary measures and police jurisdiction. However approximately from 20th years 19 century owing to settlement in the majority of the countries Western Europe of the constitutional forms of government and allocations on bases of division of the authorities the field of the public relations regulated by the police right sharply extends. The relations in the sphere of public administration become difficult. The police right for a regulation of these relations was narrow branch. Therefore in the second half of 19 century the concept «right of management» moves forward It is the right establishes the principles of management, a prerogative on application of disciplinary coercion, outlines a legal status of such important institutes of executive power as the government and army, regulates activity of public servants, their duties and the rights, their responsibility in cases of abuse of power 8
and violation of the rights of citizens. But the concept «right of management» fixed mainly state and administrative realities and didn't cover all relations connected with activity of executive power. From here emergence in the second half of 19 century of the concept «administrative law» which has pushed aside the term «right of management» since had lines of a generic term and could extend to both main parts of administrative and legal reality – police and administrative. This concept covered one more part of administrative and legal reality, namely – the relations connected with protection of the rights and freedoms of citizens. There is an institute of administrative justice as one of the most important guarantees of the rights of the citizen and as a kind of the state control. Large administrativе scientists of the end 19 – the beginnings of 20 centuries O. Maier and A. Elistratov have pointed to claims of the individual as on one more source of formation of administrative law. Administrative law as science – the system of categories, judgments and conclusions about the administrative and legal phenomena. Administrative law is the key branch of the right representing set of the precepts of law governing the public relations in the course of the organization and activity of executive bodies of the state. Questions for self-checking: 1. Give definition of administrative law as branches of the right, science and discipline? 2. Differentiate administrative law from other branches of the right (at choice)? 3. Call the reasons and prerequisites of emergence of administrative law as sciences, the branch is right? The recommended literature: 1. Taranov A.A. Administrative law of the Republic of Kazakhstan: academic course. – And., 2003. – 256 p. 2. Bakhrakh D.N. Administrative law. – M., 2007. – 816 p. 3. Ovsyanko D.M.. Administrative law: Manual. – Prod. the 3rd, processed and added. – M.: Lawyer, 2000. – 468 p. 4. Galligan D., Polyansky V.V., Starilov Yu.N. Administrative law. History of development and main modern concepts. – M.: Юристъ, 2002. – 410 p. 5. Belsky K.S. To a question of a subject of administrative law // State and right. – 1997. – №11. – P. 14-21.
SUBJECT, SOURCES AND METHODS OF ADMINISTRATIVE LAW
Keywords: subject, sources, methods, executive power, public authorities, natural persons, legal entities, public administration, holdings liable, prohibitions, permissions.
The administrative law is a key branch of the right, represent set of the legal norms governing the public relations in the course of the organization and activity of executive authorities. The main activities (functions) of executive authorities are: forecasting – anticipation of changes in development of any events or processes on the basis of cash information, including scientific; planning – definition of the directions, purposes, tasks and the expected results, proportions, rates and concrete quantitative and quality indicators of this or that operated activity; the organization by the managing director and operated subsystems (for example, creation of governing bodies, definition of their functions, subordination, the rights and duties, selection and placement of personnel, etc.); legal regulation – establishment of a legal regime of any activity and functioning of the relevant structures; general manual and operational and administrative operation; preliminary and current coordination (coordination) of actions of different governing bodies, officials, organizations; monitoring – check of actual situation for detection and elimination of violations performed by laws, plans, programs and taking measures, including to violators of an established order; accounting of the material, monetary and other means (resources) for implementation of executive and administrative activities and, in particular, its end results; 10
information support and information and analytical operation; methodical manual; personnel, material support, financing, etc. The listed functions are characteristic of structures of executive power. Their detailed research and enhancement – a subject of the theory of social control and its state and legal modification – the theory of public administration selected from the theory of administrative law, but closely with it interacting as well as with practice of administration. Thus, the main thing in effect of executive authorities is an existence of powers and real opportunities for implementation of the state functions of organizational and administrative and executive and administrative character; use in case of implementation of these activities of the legal acts of control expressing the state (public) interest. Subject of administrative law are the relations developing in the course of the organization and activity of executive power. Subject of any science are those public relations which it studies. What it is the public relations? It the relations which can arise: 1) between various state bodies, i.e. between higher and subordinate bodies (for example, between the Government of RK and Ministry of Internal Affairs RK, between Akimat and her Departments) 2) between various state bodies which aren't connected among themselves by the subordination relations (for example, between Akimat and Maslikhat, bodies of transport, communication, etc.) 3) between various state bodies and the enterprises subordinated to them, institutions, the organizations (for example, between the Ministry and the plant, the Ministry of Education and Science and TREASURY) 4) between various state bodies and natural and legal entities (for example, between Akimat and the citizen who has submitted the application him the complaint). Sources of any branch of the right can be subdivided into 3 main types: scientific, material and standard and legal. Refer works of administrativе scientists to scientific sources, their scientific developments the devoted to questions of public administration, scientific dogmas, doctrines and works in which they have found the direct reflection. 11
Material sources are the real events which are taking place in practice in life. For example, representing «ballast», gainless objects in private hands has led need for transfer of a number of the state production objects and also objects of municipal services to emergence of such measure as privatization. The need for carrying out process of privatization I have caused need of her legal regulation. Standard sources represent the uniform system of normative legal acts: 1. Constitution of the Republic of Kazakhstan 1995. 2. Codes and laws: a) Constitutional laws b) Laws of the Republic of Kazakhstan. 3. Orders and decrees of the President of the Republic of Kazakhstan: a) The decrees which are valid the Law b) Decrees of the President 4. Government resolutions and orders of the Prime minister. 5. Orders of the ministries, agencies, committees and departments. 6. Decisions of Akimats and Akim's order. Separate type of a source of administrative law are legal contracts: 1. The international treaties ratified by Parliament of Kazakhstan. 2. Intergovernmental contracts. 3. Interdepartmental contracts. Methods of administrative law. Understand set of ways, means, receptions by means of which the administrative law influences the relations as method of legal regulation of the public relations. This set is made: – holdings liable – assignment on persons of a duty to due behavior; – prohibitions – the requirement to abstain from commission of action of a certain sort; – permissions – granting to persons the rights for own actions within rule of law. There are two methods of legal regulation – imperative and dispositive. The method of imperative regulation is caused by need to provide expression of free will by the certain citizen by mutual recognition of interests of others, organized cooperation of administration of the state with collective and individual subjects of administrative law. 12
Questions for self-checking: 1. Call and disclose sources of administrative law? 2. Characterize methods of impact on the public relations in administrative law? 3. What is understood as a subject of administrative law? 4. In what feature of the public relations making a subject of administrative law give examples? The recommended literature: 1. Taranov A.A. Administrative law of the Republic of Kazakhstan: academic course. – A., 2003. – 256 p. 2. Ibragimov H.Yu. Administrative law. – Almaty: Daneker, 2000. – 256 p. 3. Bakhrakh D.N. Administrative law. – M., 2007. – 816 p. 4. Ovsyanko D.M.. Administrative law: manual. – Prod. the 3rd, processed and added. – M.: Lawyer, 2000. – 468 p.
ADMINISTRATIVE AND LEGAL NORMS
Keywords: administrative legal norms, administrative legal relations, material norms, legal procedure, subjects of administrative legal relations, executive authorities, natural and legal entities, legal fact, hypothesis, disposition, sanction, vertical administrative legal relations, horizontal administrative legal relations.
Administrative legal norms as the rules established or authorized by the state governing the relations in the sphere of public administration and also the relations of administrative character arising in other spheres of the state activity (justice implementation, public prosecutor's supervision, etc.) which realization at non-execution is provided with the state coercion. Norms of administrative law take the important place in the system of the Kazakhstan right as they regulate a wide range of the various public relations. Limits of the due, allowed or recommended behavior of people, an order of activity of executive authorities and their officials and also the state and non-state enterprises, institutions, organizations and labor collectives in the sphere of executive power (public administration) are defined by them. Norms of administrative law set a legal regime of relationship of subjects of public administration and local government, define the rights, freedoms and duties of citizens in the sphere of executive power and a guarantee of their realization. The important place is taken by norms about administrative, disciplinary and liability and also about ways of law enforcement and discipline in activity of executive authorities and their officials. Norms of administrative law not only order, fix and protect the new public relations arising upon transition to market economy but also force out the public relations which aren't answering to modern conditions from the sphere of executive power (public administration). 14
In his many norms the mechanism of execution, implementation, application of requirements of laws to concrete circumstances and objects of management is defined. To the purposes of execution and application of the legislation serve also law-making activity of executive authorities. In cases when standards of laws have no direct action, this role is carried out by the bylaws issued by the Government, the central and local executive authorities. Administrative precepts of law have a number of specific signs: 1. These are administration norms as govern the relations developing in the course of administrative activity. 2. Regulate questions of due behavior and subjects and objects of management and this most influence their behavior. 3. Are protected as in judicial, and extrajudicially. 4. Anyway regulate activity of executive authorities and most often are accepted by them. Classification of administrative precepts of law perhaps by a set of criteria: 1. By an influence method: a) the obliging, assigning these or those duties on subjects, (for example public servants are obliged to hand over annually in tax authorities the income statement, about obligatory for registration of legal entities in judicial authorities). b) the forbidding, setting certain restrictions, for example, the staff of law enforcement and law-enforcement agencies has enough to be members of political parties and the movement, will lock to employees of tax administration to carry out professional duties concerning the taxpayer with which at them the related relations. c) authorizing, giving the right – the opportunity given to subjects to work at discretion within norm. For example, citizens of the Republic of Kazakhstan have the right for addresses, both in written, and in an oral look in state bodies. 2. According to contents are subdivided on: a) Material – the defining rights or duties. b) Procedural – regulate the procedure of realization of material norm. 3. On validity of norm are subdivided depending on the status of body or the official it accepted. So they can be subdivided into the 15
norms operating across the territory of all Kazakhstan on area, on the area or departmental acts. Period of validity of norm also depends on in what act it is enshrined. Use of administrative legal norms is the most important legal form of activity of executive authorities is carried out in a special procedural order (for example, application of an administrative penalty, licensing, an appeal on military service, etc.) Realization of norms of administrative law represents logical process of implementation of the state will on subjects. In literature distinguish several forms of realization of norms: 1) execution (consists in active actions of legal entities for performance of the duties, instructions which are contained normal 2) observance (in abstention of the subject from commission of the forbidden actions) 3) use (the subject himself makes the decision on that, to use or not) 4) application (in acceptance by the subject of the power of individual legally imperious decision (act) on the basis of existing rule). Questions for self-checking: 1. Call features of administrative legal norms? 2. List types of regulations which can contain the norms forming administrative law? 3. What is understood as realization of administrative precept of law, characterize their forms? The recommended literature: 1. Taranov A.A. Administrative law of the Republic of Kazakhstan: academic course. – And., 2003. – 256 p. 2. Administrative law: a training course / Under the editorship of R.A, Podoprigora. – Almaty: Tax expert, 2010. – 368 p. 3. Zhatkanbayeva A.E. Administrative legal relations: questions of the theory and practice. – And., 2012. – 80 p. 4. Bakhrakh D.N. Administrative law. – M., 2007. – 816 p. 5. Ovsyanko D.M.. Administrative law: manual. – Prod. the 3rd, processed and added. – M.: Lawyer, 2000. – 468 p. 6. Belsky K.S. To a question of a subject of administrative law // State and right. – 1997. – №11. – P. 14-21.
ADMINISTRATIVE AND LEGAL RELATIONS
Keywords: administrative legal relations, subjects executive authorities, natural and legal entities, legal fact, hypothesis, disposition, sanction, vertical, horizontal.
Legal relations arise in the course of realization of precepts of law which contain obligatory state instructions. The public relations in the sphere of executive power settled by administrative precepts of law are called administrative legal relations. The parties participate in them as carriers of the mutual rights and duties established and provided with administrative precepts of law. In these legal relationship the state interest is painted, i.e. tasks and functions of the state are practically implemented. Such legal relationship arise, change and stop in connection with the organization and functioning of executive authorities according to the current legislation and (or) subordinate administrative precepts of law. Administrative legal relations, are a type of legal relations and represent the relations developing in the course of activity of executive power that is in governance process. They have the following distinctive features: 1) the public executive body, the representative of the state, the public servant, the official has to be one of the parties of these relations; 2) arises most often at the initiative of one of the parties; 3) these are the imperious relations, express the organizational and administrative, executive and administrative activity which is carried out by certain bodies of the state for the purpose of ensuring daily (current) functioning of the state and its device; 4) disputes between the parties can be regulated as in judicial, and administratively. 17
The basis of emergence of administrative legal relations is the legal fact, that is an event (epidemic can entail introduction of a quarantine), action (administrative offense attracts application of measures of an administrative penalty) or inaction (non-execution of the powers of office can entail application of disciplinary punishment). The legal facts are called the actual circumstances with which precepts of law connect emergence, change or the termination of legal relationship. Only in the presence of the legal fact (facts) the subject of administrative law becomes the subject of administrative legal relationship. We will stop on differences between these concepts. In administrative precepts of law the subject of administrative law is called the person or the organization who under certain conditions can be participants (parties) of the administrative relations (citizens, public servants, executive authorities, governing bodies of the state and non-state organizations, etc.). Subjects of administrative law can become subjects (participants, the parties) administrative legal relationship in the presence of three conditions: 1) the administrative precept of law defining the subject, his rights and (or) duties, legal responsibility; 2) administrative legal capacity and capacity of the subject; 3) legal fact (facts), i.e. basis of emergence, change or termination of legal relationship. The legal facts share an event and action or inaction. Events are the phenomena not dependent on will of people (for example achievement of certain age what legal consequences contact; death; natural disaster). Actions – results of active will of the participant of legal relationship. They can be lawful or illegal. Are among lawful actions, for example, the edition executive authority of the individual act of management within the powers; the state registration of public associations in judicial authorities, etc. Illegal actions (delicts) don't conform to requirements of administrative precepts of law, break their, for example, administrative or minor offenses. It is obvious that the listed and other facts in each case can have various legal consequences, i.e. generate, change certain rights and duties and also responsibility of participants of legal relationship. For example, if the citizen files a complaint to actions of the official to executive authority, the last is obliged to consider it at the scheduled time and to report to the citizen about the made decision. The died 18
citizen or the public association which has stopped the activity stop being participants of the corresponding legal relationship. Administrative and legal relations can be classified according to a number of criteria: by the nature (characteristics) of the relationships of their participants, for specific purposes (purpose) of legal relations; their content; method of protecting legal relations. Depending on the characteristics of the relationship, participants differ: – vertical (subordinate) legal relations arising between subordinate parties when there is a priority of the subject of management in the system of executive authorities (power relations, where the lower state bodies are subordinate to higher authorities, for example, the Ministry-Office); – horizontal (coordination) legal relationship within which the parties are equal aren't subordinated each other in the system of executive authorities (i.e. the relations developing between subjects with equal legal status, for example, the Ministerminister); On specific goals (appointment) the administrative relations as it was already noted, are divided into two groups: internal (intra organizational, intrasystem) and external, i.e. connected with direct impact on the objects of management which aren't a part of the system of executive authorities. Administrative legal relations according to the contents (an order of realization of the rights and duties of their participants) are subdivided on material and procedural, and on a way of protection – on protected in administrative or a legal process. The intra organizational administrative relations connected with formation and completing of management personnels, the organization of their work, distribution between workers of duties, the rights and responsibility, etc. – auxiliary, they have the providing character. Heads of governing bodies and their structural divisions, and another – other workers solving problems of functioning of these bodies act as one of the parties (participants) of such relations. Main, defining – the external (externally directed) relations within which executive authorities realize the competence on the daily leadership in economic, welfare and administrative and political processes, using methods and means peculiar to these bodies. 19
Administrative legal relations differ first of all from legal relationship civil, labor, financial and other branches of Russian law. If administrative legal relations are characterized by inequality of the parties, can arise without the consent of other party, and disputes between them are resolved mainly administratively, then other signs are inherent in the civil relations. According to the Civil code of RK, the relations between the state enterprises or between commercial structures based on the economic and contractual beginnings are regulated not by administrative, but civil law as they are connected not with organizational and administrative, and with economic activity and civil circulation. The administrative law is characterized by the organizational and administrative relations, forms a basis for his difference both from labor, and from the financial right. Questions for self-checking: 1. Give definition of administrative legal relationship. 2. Call features of administrative legal relations. 3. What types of administrative legal relations? Classify them by various bases. 4. What role of the legal facts in administrative law? The recommended literature: 1. Taranov A.A. Administrative law of the Republic of Kazakhstan: academic course. – A., 2003. – 256 p. 2. Administrative law: training course / Under the editorship of R.A. Podoprigora. – Almaty: Tax expert, 2010. – 368 p. 3. Zhatkanbayeva A.E. Administrative legal relations: questions of the theory and practice. – And., 2012. – 80 p. 4. Bakhrakh D.N. Administrative law. – M., 2007. – 816 p. 5. Ovsyanko D.M.. Administrative law: manual. – Prod. the 3rd, processed and added. – M.: Lawyer, 2000. – 468 p. 6. Belsky K.S. To a question of a subject of administrative law // State and right. – 1997. – №11. – P. 14-21.
ADMINISTRATIVE AND LEGAL STATUS OF THE PRESIDENT
Keywords: President of Kazakhstan, administrative legal status, head of state, powers, relationship, responsibility, acts.
Administrative legal status of the President of Kazakhstan includes social and legal appointment of the President of Kazakhstan as heads of state, competences and powers, an order of relationship with other authorities, guarantees of activity and responsibility of the President of Kazakhstan. Social and legal appointment of the President of Kazakhstan as heads of state. According to the Constitution of RK, the President of the republic is the head of state, his highest official defining the main directions of domestic and foreign policy of the state and representing Kazakhstan within the country and in the international relations. The legislation establishes the list of the certain requirements imposed to the candidate for president: – nationality of RK; – possession of an active electoral right; – the age isn't younger than forty years; – full-time residence in the territory of RK not less than the last fifteen years; – free knowledge of a state language; – shouldn't be the attendant of a cult; – shouldn't have not extinguished in the criminal record order established by the law; – to stay as no more than two terms in a row, except for the First President; – not to be the deputy of representative body; – not to hold other paid positions or to carry out business activity. 21
The feature of the status of the President is that it is chosen a national ballot by general, equal, direct election for five years. The President has the special device which provides activity of the head of state, first of all, for performance by him of functions of the guarantor of the Constitution, the rights and freedoms of citizens, interactions of all branches of the government. For ensuring fulfillment of duties of the head of state the Constitution of RK and other acts establish legal, organizational and social safeguards of activity of the President of Kazakhstan. Legal safeguards – are that the President is competent: – to act on behalf of the people and the state; – to be a guarantor of unity of the people and the government, firmness of the Constitution; – to provide the coordinated functioning of all branches of the government. Organizational guarantees consist that the President: – appoints another and early elections in Parliament; – it is competent to stop ahead of schedule in the cases and an order provided by the Constitution, powers of Parliament and the Government; – forms and will reorganize Committee of national security; – influences the system of the organization executive and other branches of the power; – presides over meetings of the Government on especially important questions; – forms Presidential Administration. Social guarantees provide: – honor and dignity protection, service and protection of the President and members of his family at the expense of the state; – regular communication with the people through institutes of elections directly the citizens having active voting rights, a referendum and the annual address with the message to the people. Depending on the main activities, it is possible to allocate the following powers: – ensuring the state sovereignty, rights and freedoms of the person and citizen; 22
– definition of the main directions of domestic and foreign policy of the state, representation of interests of the Republic of Kazakhstan within the country and in the international relations; – establishment of institutes and bodies, government positions; – the publication of the decrees and orders having binding force in all territory of the republic and also the laws and decrees which are valid the law in the cases provided by the Constitution. Responsibility as an element of administrative legal status of the President has the features. The President of Kazakhstan bears responsibility according to Art. 47 of the Constitution for the actions made at execution of the duties only in case of high treason and can be released from a position by Parliament. Powers of the President of the republic concerning the Government 1) with the consent of Parliament appoints the Prime minister of the republic to a position, dismisses him; 2) determines structure of the Government by the representation of the Prime minister brought in ten-day time after his appointment, appoints to a position and dismisses his members and also forms, abolishes and will reorganize the central executive bodies of the republic which aren't a part of the Government; 3) takes the oath of members of the government; 4) regularly hears the report of the Prime minister on the main activities of the Government and on all his major decisions during which the Prime minister reports on work of the Government; 5) on representation of the Prime minister approves the uniform system of financing and compensation of workers for all bodies which are contained at the expense of the state budget of the republic; 6) presides over meetings of the Government on especially important questions; 7) charges to the Government entering of the bill into Mazhilis of Parliament; 8) cancels or suspends in whole or in part acts of the Government; 9) makes decisions on the resignation stated by the Government and any his member if they consider impossible further implementta23
tion of the functions assigned to them or if the Parliament has expressed a vote of no confidence to the Government and also on the resignation declared the member of the government, not concordant with the policy pursued by the Government or not carrying out it; 10) in ten-day time accepts or rejects the resignation stated by the Government or any his member; 11) at a deviation of resignation of the Government or its member charges them further implementation of their duties; 12) has the right to make on own initiative the decision on the termination of powers of the Government, dismissal of the Prime minister and any member of the government; 13) the acts has the right to assign to the Government implementation of executive functions, except those that are established by the Constitution and laws of the republic; 14) gives legislative instructions to the Government of the republic. The permanent body providing activity of the President is his Administration. The mission of Administration is high-quality and timely information and analytical, legal, legal and organizational, documentary and other support of activity of the President. The main objectives of Administration are support of implementation of powers of the President: in the field of foreign policy; in the field of social and economic and other directions of domestic policy; in the field of defense capability and safety of the state; in the field of a legal policy, validity and law and order; in the field of personnel policy; concerning Parliament of the Republic of Kazakhstan; concerning the Government of the Republic of Kazakhstan and the central executive bodies; concerning the Constitutional Council of the Republic of Kazakhstan; concerning vessels and judges; concerning Central Election Commission of the Republic of Kazakhstan; concerning local representative and executive bodies, akims of areas, the cities of republican value and the capital and in the sphere of regional policy; concerning public authorities, to it directly subordinate and accounttable support of activities of the State secretary of the Republic of Kazakhstan, Assembly of the people of Kazakhstan, the Supreme Judicial Council and consulting advisory bodies in case of the President other tasks set by the legislation of the Republic of Kazakhstan and (or) determined by the President. 24
The administration has the right to give instructions to office of the prime minister of the Republic of Kazakhstan, the ministries, akims, the Supreme Court, the Prosecutor General's Office, Committee of national security, Agency on fight against economic and corruption crime (financial police), Committee on judicial administration in case of the Supreme Court. Questions for self-checking: 1. Disclose administrative legal status of the President of Kazakhstan? 2. Call relationship of the President concerning the Government? 3. Call relationship of the President concerning the central executive authorities? 4. Call relationship of the President concerning akims? The recommended literature: 1. Taranov A.A. Administrative law of the Republic of Kazakhstan: academic course. – And., 2003. – 256 p. 2. Administrative law: a training course / Under the editorship of R.A. Podoprigora. – Almaty: Tax expert, 2010. – 368 p. 3. Ibragimov H.Yu. Administrative law. – Almaty: Daneker, 2000. – 256 p. Normative legal acts: 1. Constitution of RK of August 30, 1995 of t. 2. Constitutional Law RK of December 26, 1995. About the President of the Republic of Kazakhstan. No. 2733.
THE GOVERNMENT – HIGHEST EXECUTIVE AUTHORITIES
Keywords: Government of RK, administrative legal status, powers, structure, regulations, relationship, responsibility, acts.
Legal status and competence of executive authorities is regulated by the Constitution, the Constitutional Law «About the Government of RK», the legislation on local public administration, regulations on these bodies. Executive authorities make the uniform hierarchical system consisting of three links: 1. The supreme executive body – the Government of the Republic of Kazakhstan. 2. The central executive authorities – the Ministries and the Agencies, Committees and departments. 3. Local executive authorities – Akim and Akim's device. Executive authorities enable the realization of public administration within the competence established by the legislation of the republic. Powers of executive authorities are rather extensive and various: law-making, planning, control, supervising, allowing, administrative and others. The central executive authorities are subdivided into bodies of branch management, interindustry coordination and specialized bodies (Agencies). The system of executive authorities is under construction and acts on the basis of the following principles: legality, unity of system of public authorities, combining centralization and decentralization.
The government of the Republic Kazakhstan is highest executive authorities of the republic. His status and competence is regulated by the Constitution of the Republic of Kazakhstan and the Constitutional law «About the Government». The main objectives of the Government are the management of all system of executive authorities of the Republic of Kazakhstan and ensuring performance of the Constitution, Laws, acts of the President. The structure and structure of the Government is determined by the President by representation of Premieres – the Minister who performs management of body. The prime minister is appointed the President with the consent of Parliament. In currents of 10 days after the appointment the Prime minister is obliged to submit to the President the list of members of the government. They are obliged to take oath of allegiance to the people and the President of Kazakhstan. Are a part of the Government: The prime minister, his deputies, ministers and chairmen of the Agencies, the head of Office of Premieres – the Minister. Within 2 months the Government is obliged to submit for consideration of Parliament the program, that is system (plan) action and reforms in the period of the competence which has to get approval of Parliament. Twice refused in approval of the program involves the announcement of a vote of no confidence of Parliament to the Government. Term power of the Government within term the President's power also resigns the authority before the newly elected President. Members of the government bear individual responsibility before the Prime minister and are obliged to carry out orders of the President, the Prime minister and the Government. As political public servants, members of the government retire. The resignation has to be considered by the President within 1 month. In case of refusal he is obliged to continue execution of the functions. The president has the right to make on own initiative the decision on the termination power of the Government and the Prime minister. Release of the Prime minister designates resignation of all Government. 27
Structure of the Government of the Republic of Kazakhstan: First Deputy Prime-minister of RK Двa зaместителя Премьерa министрa
Head of Office of the Primeminister of RK Primeminister of RK
Heads of the Agencies
Members of the government are obliged to observe restrictions connected and with the status of the public servant and restriction determined by the Constitutional Law «About the Government». And also to observe the time limit of the Government of the Republic of Kazakhstan. Treat the main questions of competence of the Government: 1. Implementation by the management of state ownership, with the right of creation republican state the enterprise. 2. Development and execution of the republican budget with the report on him before Parliament. 3. Develops the main directions of the state social and economic policy of the state. 4. Develops state programs. 5. Develops and carries out measures for strengthening of financial policy of the state. 6. Develops and realizes the main directions of the state regional policy. 7. Enables the realization of the state legal reform, to law enforcement, safety and defense capability of the republic, territorial integrity and protection of frontiers. 28
8. Defines and realizes state policy on development of science, the equipment, introduction new technologies, cultures, educations, health care, tourism and sport, etc. Work form – a meeting which is held at least 1 time a month under the chairmanship of the Prime minister and the President of Kazakhstan on especially important questions. The government issues the resolutions having validity in the territory of all republic, the Prime minister accepts the orders carrying administratively – administrative character. Relationship of the Government and Parliament is a relationship of two branches of the power, settled by the legislation. The government has rights of a legislative initiative, realized only in Mazhilis of Parliament. According to Art. 13 of the Law «About the Government» Government: a) submits to parliament the republican budget and the report on his execution. b) provides performance of laws and controls their execution by the central and local executive bodies. c) gives replies to the requests of deputies of Parliament. d) draws the conclusions according to drafts of the laws of the republic providing reduction or increase in the public expenditures. The government can be dismissed by the President in announcement cases to him from Parliament of a vvotum of mistrust. The procedure and the bases of this procedure are regulated by the Constitution of the Republic of Kazakhstan. Can be the bases: 1) twice rejected program of the Government, 2) twice rejected bill «About the Republican Budget», 3) twice rejected bill the initiator of which was the Government. The vote is taken out 2\3 voices from the total number of deputies. At a set of the corresponding number of votes of questions it is put before the President who has the right to dismiss either the Government or Parliament. Besides, the Parliament has the right to announce a vote of no confidence to separately taken member of the government. The vote also appears 2/3 voices, in case of refusal the President members of the government can again bring up a question of a vote after 6 months after the first vote of no confidence. The government of the republic performs management of activity of the ministries, agencies and departments. On representation of their 29
heads I approve regulations on these bodies, a limit of their number of staff. Has the right to suspend acts of the central executive bodies in whole or in part. The government can be dismissed by the President in announcement cases to him from Parliament of a vote of no confidence. The procedure and the bases of this procedure are regulated by the Constitution of the Republic of Kazakhstan. Can be the bases: 1) twice rejected program of the Government, 2) twice rejected bill «About the Republican Budget», 3) twice rejected bill the initiator of which was the Government. The vote is taken out 2\3 voices from the total number of deputies. At a set of the corresponding number of votes of questions it is put before the President who has the right to dismiss either the Government or Parliament. Besides, the Parliament has the right to announce a vote of no confidence to separately taken member of the government. The vote also appears 2/3 voices, in case of refusal the President members of the government can again bring up a question of a vote after 6 months after the first vote of no confidence. The government of the republic performs management of activity of the ministries, agencies and departments. On representation of their heads I approve regulations on these bodies, a limit of their number of staff. Has the right to suspend acts of the central executive bodies in whole or in part. Information and analytical and organizational legal support of activity of the Prime minister and the Government is carried out by Office of the Prime minister. For development the offer on competence of the Government the Commissions, councils and other advisory bodies which offers have advisory nature are formed. Questions for self-checking: 1. What role and the place of executive power in the system of division of the authorities? 2. Call the main activities of the Government? 3. Relationship of the Government and Parliament? 4. What acts are issued by the Government?
The recommended literature: 1. The message of the President of Kazakhstan to the people of Kazakhstan «Kazakhstan in new global reality: growth, reforms, development». – November 30, 2015. 2. Taranov A.A. Administrative law of the Republic of Kazakhstan: academic course. – And., 2003. – 256 p. 3. Administrative law: a training course / Under the editorship of R.A. Podoprigora. – Almaty: Tax expert, 2010. – 368 p. 4. Tleubayev K.O. To a question of functions of the Government of RK // Messenger TREASURY. – №3 (35). – And., 2005. – P. 23-28. Normative legal acts: 1. Constitutional law of the Republic of Kazakhstan of December 18, 1995. About the Government of the Republic of Kazakhstan. No. 2688. 2. Resolution of the government of the Republic of Kazakhstan of December 10, 2002 №1300. About Regulations of the Government of the Republic of Kazakhstan.
CENTRAL EXECUTIVE AUTHORITIES
Keywords: executive bodies, ministries, committees, agencies, departments, legal status, powers, structure, relationship, responsibility, acts.
The central executive bodies are the largest link in the system of executive bodies which carry out the main functions of public administration and regulation in spheres of activity of society and the state. Also the ministries and the agencies treat the bodies which are a part of the Government. Their list is established to Decrees of the President «About structure of the Government», now all ministries and agencies treat them. Distinctive signs of these bodies are that they are created, will be reorganized and are liquidated by the President. Their heads are appointed and ousted personally by the head of state and are accountable only to him. Since 1997 the structure and the system of the central executive bodies in Kazakhstan are under construction on the French model. The Ministry – the central executive body which is a part of the Government the Republic of Kazakhstan and performing management of the relevant branch of public administration and also in the limits provided by the legislation – interindustry coordination. They are created by the President on representation of Premieres – the Minister. The ministries can be subdivided into three blocks: political, economic, social. The purposes, tasks and competence of the Ministry is defined by the Provision on him approved by the Government on representation of the Minister. The structure of the ministry is approved by the minister. The ministry is headed by the Minister appointed by the President on representation of the Prime minister. The head of the ministry has 32
deputies – Witz-ministers, as a rule them 4 (one of which the first). They are appointed by the Government on representation of the minister who distributes powers between them. The most general tasks and powers of the minister are regulated by the Provision on the minister of the Republic of Kazakhstan of April 29, 1999. For the solution of the most important questions at the minister the board of the ministry which is advisory body is created. Numerical and the staff of board is defined by the minister. The issues submitted for consideration of board are resolved by vote, at the same time the minister has the right of a casting vote. Structural units of the ministry are departments which number and their functions are defined by the minister. Departments are subdivided into 2 look: being the legal entity and not being the legal entity. Regulations on the department which is the legal entity and also his Director is appointed by the Government on representation of the Minister. Departments are in turn subdivided on territorial and managements. Acts of the ministry come into validity from the moment of a statement them in the form of the order signed by the Minister. They act across the territory of all Kazakhstan for bodies and the organization subordinated to him.
Ministry of RK
Committee at the Ministry
Improvement of government in the Republic of Kazakhstan goes through association of relatives on social assignment of the industries of management. So, the Ministry of Education and Science of the Republic of Kazakhstan integrates two industries of management 33
(education and the sphere of science), and the structure of body is approved by the minister; The Ministry for Investments and Development of the Republic of Kazakhstan in the structure has 9 Committees – Space committee, Committee of highways, Committee of geology and subsurface use, Committee of civil aviation, Committee of industrial development and industrial safety, Committee on investments, Committee of communication, informatization and information, Committee of technical regulation and metrology and Committee of transport. The Agencies in difference from the ministries are more flexible state bodies and their purposes implementation of uniform state policy in the territory of the republic is and also are equipped with functions of cross-industry coordination. The status of the Agency depends on his subordination. According to the Constitutional law «About the Government of the Republic of Kazakhstan» the concept of the agency is understood as the public authority which isn't a part of the Government. However, according to the Decree of the President «About structure of the Government» of January 20, 1999 a number of the agencies is a part of the Government, according to their heads are members of the government. The agencies are created on representation of Premieres – the Minister the President, will respectively be reorganized and liquidated by him. Heads of the Agencies which are directly subordinated to the President are appointed by him personally. Also bear individual responsibility before him. Departments including territorial are a part of the Agency. However, below regional they don't «go down», the only exception is AChS (Emergency situations agency). In the relevant Law of RK «About Regulations» it is said that the authorized body has the right to adopt regulations according to his competence established by the Constitution and acts. The specified explanations to some extent can explain that department is created as body (committee) of the central executive body. 1. Department performs functions of committee of the central executive body. Unlike other bodies, department can also have territorial divisions. 2. Department is formed, will be reorganized and abolished by the Government on representation of the head of appropriate authority. 34
3. Department is competent to carry out special executive and control and supervising functions and also interindustry coordination or the management of subsector (sphere) of public administration. 4. At all importance of these functions, the structure, competence and an order of interaction of department decides on other public authorities by the Government. 5. A form of the act issued by department is the order of the head of department. Realizable and control and supervising functions are assigned to committees. For example, the Committee of treasury of the Ministry of Finance of the Republic of Kazakhstan is the department within competence of this ministry which is carrying out special executive and control and supervising functions and also interindustry coordination on service of execution of the republican budget, settlement cash service of the state budget, public institutions and control of target execution of means of the state budget. The treasury has the territorial authorities in areas and the cities of Astana and Almaty. Concerning the competence Treasury of the order established by the legislation issues orders which have binding force in the territory of the republic. Now in Kazakhstan state programs such as «Nurly Zhol – a Step to the Future» Program, State program for the forced industrial innovative development of the Republic of Kazakhstan for 2010 – 2014, the State program of development of health care for 2011-2015 «Salamatta Қaзaқстaн», the State program of development of education of the Republic of Kazakhstan for 2011-2020, the State program of development and functioning of languages for 2011-2020, the State program «Information Kazakhstan – 2020», the Program of employment 2020, «The road map of business – 2020», the Program Affordable housing 2020, the Program for development of agro-industrial complex in the Republic of Kazakhstan for 2013 – 2020 «Agrobusiness – 2020», the Program of development of monotowns for 20122020, the Program of modernization of housing and communal services till 2020 work, The program Ak bulak for 2011 – 2020. «Nurlyzhol – a Step to the Future» program. The first. Development of transport and logistic infrastructure. It will be carried out within formation of macroregions by the principle of hubs. At the same time the infrastructure frame will connect to Astana and among 35
themselves macroregions trunk automobile, railway and airlines by the ray principle. First of all, it is necessary to realize the main road projects. It is the Western China – Western Europe; Astana-Almaty; Astana-Ust-Kamenogorsk; Astana-Aktobe-Atyrau; Almaty – Ust-Kamenogorsk; Karaganda – Zhezkazgan – Kyzylorda; Atyrau-Astrakhan. It is also necessary to continue creation of a logistic hub in the east and sea infrastructure in the west of the country. Increase in the export potential in the western direction through ports on the Caspian Sea will be promoted a scale ferry from Kuryk port and the railway line of Borzhakta – Ersay. I guarantee with the Government to handle an issue of construction or rent of terminal capacities in «dry» and seaports of China, Iran, Russia and EU countries. The second. Development of industrial infrastructure. Implementation of infrastructure projects will cause great demand for building materials, production and services for transport and communication, power and housing-and-municipal spheres. In this regard, first, it is necessary to finish work on formation of infrastructure in the existing special economic zones. The government and akims need to take quickly measures for their filling by real projects. Secondly, it is necessary to handle a construction issue in regions of the new industrial zones aimed at development of productions of SME and attraction of additional investments. The separate direction – infrastructure for tourism. Her main advantage is the possibility of creation of bigger number of jobs. Here creation of one workplace costs by 10 times cheaper, than in the industry. The third. Development of energetic infrastructure. In power engineering for last 5 years within the program of industrialization a lot of work is carried out. Nevertheless, the limitation of backbone networks causes an electric power deficit in the southern regions of the country, natural gas – in central and east regions. It is necessary to focus on two projects. To build high-voltage lines in the EkibastuzSemey-Ust-Kamenogorsk and Semey-Aktogay-Taldykorgan-Almaty directions. It will allow to create the balanced power supply of all regions of the country by the Kazakhstan power stations. The fourth. Modernization of infrastructure of housing and public utilities and networks water – and heat supplies. The general need for investments makes not less than 2 trillion tenges with annual allocation till 2020 of all sources of financing not less than 200 billion 36
tenges. Today great interest to investments into modernization of housing and public utilities is shown by the European Bank for Reconstruction and Development, Asian Development Bank, the Islamic Development Bank and also private investors. It is necessary to provide their maximum attraction through granting long-term investment tariffs. Not to allow significant increase in tariffs, joint financing of such projects by the state is necessary. In this regard in addition to the means which are already provided in the budget it is expedient to direct up to 100 billion tenges to acceleration of rates of modernization of systems of heat and water supply annually. The fifth. Strengthening of housing infrastructure. Formation of agglomerations is followed by a considerable overflow of the population. It creates pressure upon labor market and infrastructure of the cities including on housing stock. Therefore it is necessary to reconsider approaches to construction of rent housing. The state will build social rent housing and to present him to the population to long-term rent with the right of repayment. Provision of housing directly, without intermediaries and under the lowest interests for the credit, will allow to reduce the cost of his acquisition. The lack of an initial contribution and low interests for a mortgage will make housing more available to wide layers of Kazakhstan citizens. Therefore we will in addition increase financing of construction of rent housing by the sum of 180 billion tenges during 2015-2016. The sixth. Development of social infrastructure. First of all, this solution of problems of emergency schools and three-shift training. It is one of the main indicators of our Election platform. The means provided in the three-year budget don't allow to solve this problem till 2017. Therefore I charge to the Government to direct 70 billion tenges in addition. Other question – the shortage of kindergartens. I charge for cardinal reduction of deficiency of places in the preschool organizations within 3 years in addition to direct 20 billion tenges. Akims have to be engaged as much as possible in this work and attraction of the private sector. Within the program of industrialization 10 higher education institutions on the basis of which communication of science with branches of economy and training will be provided are defined. I charge to create material and technical resources of these educational institutions, having directed to these purposes up to 10 billion tenges till 2017. 37
The seventh. It is necessary to continue work on support of small and medium business and business activity. For today 100 billion tenges from National fund directed to support and crediting of SME are completely mastered. It has allowed to create 4,5 thousand jobs. Demand for these means has exceeded the offer for 23 billion tenges. Unprecedented terms for crediting business under only 6 percent for 10 years are created. We in the country had no such conditions earlier. It is necessary to continue work on development of SME as drivers of economic growth and to increase in his share up to 50 percent of GDP by 2050. Therefore it is necessary to use effectively credit lines for small and medium business at the expense of ABR, the EBRD, the World Bank for the total amount of 155 billion tenges in 2015-2017. The state program on the forced industrial innovative development of the Republic of Kazakhstan for 2010 – 2014. The state program on the forced industrial innovative development of the Republic of Kazakhstan has been adopted by the Decree of the President of the Republic of Kazakhstan No. 958 of March 19, 2010. The program purpose – ensuring steady and balanced growth of economy through diversification and increase in its competitiveness. The state program of development of education of the Republic of Kazakhstan for 2011-2020. The purpose State programs – increase in competitiveness of education, development of the human capital for improvement of material and spiritual well-being of citizens, steady growth of economy by ensuring availability of quality education for all. Since 2011 improvement is planned: – programs of training of teachers, including for MKSh; – programs of masters of education on the basis of the state order for profile school (training by two-degree education). According to the Bolashak program preparation of Englishspeaking pedagogical shots will be provided. The program of professional development will be updated. Professional development through voucher financing, including abroad is organized. For increase in the status of the teacher introduction of new system of compensation and finishing by 2020 of the level of compensation of pedagogical workers to the salary in the private sector is planned. Measures for strengthening of requirements to teachers are at the same time provided. 38
Since 2015 at entering higher education institutions on pedagogical specialties creative examination on determination of level of tendencies to pedagogical activity will be entered. Threshold level for arriving on pedagogical specialties will be increased. Since 2016 the procedure of confirmation of skill level of the teachers going to work for the first time or after a break of pedagogical activity will be introduced. For control and stimulation of quality of training pedagogical shots will pass skill level assessment in the independent agencies. The state program of development of health care for 2011-2015 «Salamatta Kazakhstan». Purpose: strengthening of health of citizens of the Republic of Kazakhstan and formation of an effective health care system for ensuring social and demographic development of the country. Directions of realization: – Rising of efficiency of intersectoral and interdepartmental interaction concerning protection of public health – Intensifying of preventive actions, screening researches, improvement of diagnostics, treatment and aftertreatment of the basic socially important diseases – Improvement of sanitary and epidemiologic service – Improvement of the organization, management and financing of a medical care in the Uniform national health care system – Improvement of medical, pharmaceutical education; development and introduction of innovative technologies in medicine – Rising of availability and quality of medicines to the population. The state program of development and functioning of languages for 2011-2020. When developing the draft of the State program of functioning and development of languages for 2011-2020 experience of legal regulation of language policy of 30 foreign countries has been studied. All actions provided by the Program are based on priority of development of a state language as most important factor of strengthening of national unity and are directed to full-fledged satisfaction of spiritual and cultural and language needs of citizens. The state program «information Kazakhstan – 2020». Program purpose: Creation of conditions for transition to information society. Ensuring system effectiveness of public administration. Ensuring 39
availability of information and communication infrastructure. Creation of the information environment for social and economic and cultural development of society. Development of domestic information space. Program of employment 2020. The new program of employment of the population of Kazakhstan is planned to envelop to 1,5 million people by 2015. Implementation of this program will allow to reduce poverty level in the country from 8,2 to 6%, and unemployment rate will not exceed 5,5%. Tasks of this program is involvement in productive economic employment of independently busy, jobless and needy population, development of personnel potential for implementtation of the program of industrialization. Also one of tasks of the program is enhancement of system of rendering the address social help. Implementation of the Program assumes three stages: pilot – 2011, the second stage – 2012-1015, the third stage – 2016-2020. The purpose is an increase in income of the population by assistance of steady and productive employment. The program of development of monotowns for 2012-2020. The purpose – Sustainable social and economic development of monotowns in the average and long term. «The road map of business – 2020». The Road Map of Business – 2020 program is implemented by the Government of Kazakhstan for post-crisis support of subjects of small and average business. In her framework the state subsidizes the credits issued on new projects and also earlier issued credits of SME. Program Affordable housing 2020. The purpose – the Complex solution of problems of development of housing construction providing further increase in availability of housing to the population. The program for development of agro-industrial complex in the Republic of Kazakhstan for 2013 – 2020 «Agrobusiness – 2020». The purpose – creation of conditions for increase in competitiveness of subjects of agro-industrial complex (further – agrarian and industrial complex) the Republic of Kazakhstan (further – RK) The program of modernization of housing and communal services till 2020. Program purpose: Providing consumers with utilities of appropriate quality, reliability of functioning of life support systems and increase in efficiency of activity of housing and communal services. 40
The program Ak bulak for 2011 – 2020. The program purpose – Providing the population with qualitative drinking water and services of water disposal. Productivity – 2020 program. The Productivity of 2020 program, along with the existing Program «The road map «Business 2020», is the instrument of implementation of the State program on the forced industrial innovative development of the Republic of Kazakhstan for 2010-2014. Questions for self-checking: 1. Call structure and questions of the organization of activity of the ministries and agencies? 2. What interactions of the Central executive bodies with other public authorities? 3. Open the main activities of committees and departments? 4. What main state programs exist? The recommended literature: 1. The message of the President of Kazakhstan to the people of Kazakhstan «Kazakhstan in new global reality: growth, reforms, development». – November 30, 2015. 2. Taranov A.A. Administrative law of the Republic of Kazakhstan: academic course. – And., 2003. – 256 p. 3. Tleubayev K.O. To a question of functions of the Government of RK // Messenger TREASURY. – №3 (35). – And., 2005. – P. 23-28. Normative legal acts: 1. Constitutional law of the Republic of Kazakhstan of December 18, 1995. About the Government of the Republic of Kazakhstan. No. 2688. 2. Resolution of the government of the Republic of Kazakhstan of December 10, 2002 No. 1300. About Regulations of the Government of the Republic of Kazakhstan.
LOCAL EXECUTIVE AUTHORITIES
Keywords: Akim, akimats, legal status, powers, structure, relationship, responsibility, acts.
Local public administration is an activity of the public authorities corresponding to an administrative and territorial unit according to the solution of economic and social problems of local value. As subjects of local public administration in the Republic of Kazakhstan local representative bodies – Maslikhata and local executive bodies headed by Akims – Akimats. According to Art. 87 of the Constitution and the Law of RK «About Local Public Administration», Akimats are included into the uniform system of executive bodies of the republic, provide carrying out nation-wide policy of executive power in combination with interests and requirements of development of the respective region. The main functions of bodies of local public administration are: ensuring development of the respective territory on the basis of the developed plans, economic and social programs; ensuring social needs of the population, formation and execution of the local budget. Feature of local representative bodies – Maslikhat is also that they work according to the Constitution and the legislation. Akimats, besides, carry out the activity and in pursuance of acts of the President, the Government and higher executive bodies. Feature of Maslikhat and Akimats is also that they can't establish themselves competence. Enters competence of local executive bodies: development and representation on the approval of the Maslikhat of plans, economic and social programs of development of the territory, the local budget and ensuring their execution; management of municipal property and implementation of measures for her protection; creation of conditions 42
for development of business activity and investment climate in the respective territory, ensuring rational and effective functioning of the agrarian sector, respect for state standards and the solution of other vital problems and also appointment to the post and dismissal of heads of local executive bodies, the solution of the questions connected with the organization of work of Akimats. Local executive bodies are headed by Akims of the corresponding administrative and territorial units. They are representatives of the President and the Government of the Republic of Kazakhstan on places. They have the right to make offers on public administration in the Government. Akims of areas, cities of republican value and the capital are appointed to a position by the President on representation of the Prime minister. The order of appointment to the post, dismissal and termination of powers of Akims of the area (cities of regional value) is defined by the President. Activity of local executive bodies is carried out on the principles: – accountability to the President and Government, higher heads of administrations; – accountability to the appropriate local representative body concerning his maintaining; – legality; – one-man management; – ensuring rights, freedoms and legitimate interests of citizens; – independence and independence within the competence; – combinations of the state and local interests; – responsibility for the activity and the made decisions. The vertical principle of appointment and release of Akims assumes their double status: as the official heading executive power in the respective territory and as representative of the President and Government on places. The Akim is accountable and responsible before the Head of state and is accountable to the Government, and on a number of questions – a Maslikhat. Illegal acts of the Akim can be repealed not only in a judicial proceeding, but also the President. The uniform executive vertical predetermines also the right of making obligatory instructions on the questions connected with implementation of laws, acts of the President and the Government [63, page 34]. Functions of Akims cover a double sort of a task: first, this solution of especially local affairs; secondly, this ensuring execution on 43
places of the Constitution, laws, acts of the President and the Government. It is necessary to differentiate the Akim's powers belonging to him individually and powers in separate branches and fields of activity, the majority of which are carried out by managements, committees, departments of local executive office, but some of them are carried out also by the Akim. Personal powers of the Akim can be united in the following groups: 1) The powers connected with representation on the approval of the Maslikhat of the documents developed by executive office. They concern: – schemes of management of the territory; – draft of the local budget; – plans and programs of social and economic development of the territory; 2) Organizational and personnel powers of Akims include; – appointment and dismissal of subordinate Akims; – appointment and dismissal of deputy Akims, heads of bodies and other officials of local executive bodies; – appointment and dismissal of heads of the enterprises, organizations and institutions of municipal property; – consent on appointment of heads of territorial authorities of the ministries, state committees, departments (except for prosecutor's office and courts), the enterprises, the organizations and institutions of republican submission, introduction of offers on their dismissal; – the statement of maintenance costs and material support of local executive body within the set limit; number and allocations; – the approval of the approximate list of departments, managements, other divisions and services of regional and city executive bodies (for regional level it is approved by the Government); – adoption of the provision on the office of the Akim; – introduction of offers in Maslikhat on education and the structure of the special commissions (for minors, administrative, observant, etc.). 44
3) The powers connected with regulation of economic activity in the respective territory cover: – management of municipal property; – coordination of activity of the enterprises, organizations and institutions of republican property according to the powers delegated by higher executive bodies; – the solution of the land questions in the order established by the legislation (about granting the land plot, his withdrawal (repayment) for the state needs, etc.); – making decisions on loans, loans and other long-term obligetions; – conclusion and signing of contracts, legal and bank documents; – the order free financial resources of the budget with the subsequent introduction on a session of the Maslikhat of an adoption of changes on the budget; – making the conclusions on drafts of the decisions of the Maslikhat providing reduction of income of the local budget or increase in local budgetary expenses; – formation of off-budget fund and expenditure of his means; – education, reorganization and liquidation of the enterprises of municipal property [64, page 152]. Other powers of the Akim include: – introduction in Maslikhat offers on the administrative-territorial device; – organization of reception of citizens, consideration of offers, statements and complaints of citizens, adoption of decisions on them; – entering of offers into the Government on the questions referred to his competence; – introduction of representations to the President about rewarding with the state awards of the republic, assignment of honorary and other titles to persons in the order established by the legislation. The akim of the city has also certain powers in the area: a) planning, budget, economic activity, transport and communication; b) land use, conservation and rational use of natural resources; 45
c) constructions, housing and communal services, bytokvy service, trade, public catering; d) welfare service of the population; e) law enforcement, protection of law and order, rights, freedoms and interests of citizens. The competence of the Akim includes education, reorganization and abolition of the device. The office of the Akim consists of his deputies, departments and managements and other services. Deputy Akims perform the functions according to distribution of the duties established by the corresponding Akim. They supervise separate activities of local executive bodies and bear responsibility for the state of affairs in the relevant branches, managements and committees. The number of deputy Akims and also the system of departments and other divisions are defined according to the scheme of management approved Maslikhat on representation of the Akim. Deputy Akims are obliged to resign in case of resignation of the Akim. The office of the akim makes the division providing organizational, legal, material and information service of activity of the akim, his deputies and branch and interindustry local executive bodies. Their status is regulated by the situation approved by the corresponding akim. They have no subordinates of objects of management. Their main objectives consist in coordination of activity of branch (interindustry) departments, managements and committees, the industrial of associations, rendering the methodical help and the organization of implementation of resolutions and orders of the akim to them; preparation of information material about activity of the supervised organizations, suggestions for improvement of their work and to improvement of functioning of branches of economy and the social sphere. The office of the Akim carries out organizational and legal, information and analytical and material support of activity of the Akim. Regarding the number of staff of workers of system of local public authorities restrictions work. So, according to the competence the Akimat of area (the city of republican value, the capital) sets a limit of number of the executive bodies financed from regional (the city of republican value, the capital) of the budget. The number of staff of the law-enforcement bodies financed from local budgets is defined according to the current legislation of the republic. 46
On the status the office of the Akim is the public institution which is contained at the expense of the local budget. The provision on the office of the Akim, its structure and the number of staff are approved by the corresponding Akim within the limits set by the Government. The order of preparation and holding meetings of Akimats and also adoptions of decisions by them is defined by regulations of the relevant Akimat. The standard regulations are approved by the Government. Principle of collective leadership in activity of Akims of areas (the city of republican value, the capital) and areas (the cities of Regional value) are shown also in such form as creation of various advisory and advisory bodies for the solution of problems of local value. At the same time Akims present staff of advisory advisory bodies concerning interdepartmental character on a statement to the corresponding Maslikhat. According to the Constitution мaслихaт the having the right two thirds of the total number of his deputies to express no confidence in the Akim and to raise a question of his dismissal respectively before the President or the higher akim. Powers of Akims of areas, cities of republican value and the capital stop at taking office of the newly elected President of the republic. The competence of local executive bodies, the organization and an order of their activity is established by the law (item 5,6 of Art. 87). Akimats are formed by Akims from among the deputies, heads of offices of Akims, the first heads of the executive bodies financed from the local budget. The staff of akimats is coordinated by the decision of a session of the corresponding maslikhat. (The cities of regional value) akimats also the first heads of territorial divisions of the executive bodies financed from the regional budget in coordination with heads of the appropriate higher bodies can be members regional. The order of preparation and holding meetings of akimats and also adoptions of decisions by them is defined by regulations of the relevant akimat. The standard regulations are approved by the Government. At the akim the advisory advisory body board which structure is approved by the akim can be created. Meetings of board are held as required. Her decisions are put into practice through acts of the akim, the secretary of the maslikhat is invited to meetings of board. 47
The akimat on a basis and in pursuance of the Constitution, laws, acts of the President and the Government, other regulations issues resolutions. These legal acts are among main types of regulations. All other acts (regulations of work of akimat, situation and so forth) are derivatives. They are accepted and approved by means of adoption of the main regulatory legal act, i.e. the resolution of akimat, and make with him a whole. As for powers of akims, these officials have the right to publish solutions of standard and legal character and also the order on administrative and administrative and individual character. The acts of akimat and (or) the akim adopted within their competence have binding force in all territory of the corresponding administrative and territorial unit. For example, according to the Decision of the akim of Mangystau Region of 08.11.2000, «About the approval of Rules of preparation of regulations by local executive bodies of Mangystau Region», regulations of the akim of the city (decisions, orders), are printed on forms of the established sample in the Kazakh and Russian languages plus the copy in the quantity necessary for mailing for performers . The first copy are vised by the head of department who has prepared the project, the chief of staff, the lawyer, the supervising deputy akim of the city, if necessary the manager of finance department. Decisions and resolutions of higher bodies, an order of higher bodies and also a summary of social and economic consequences of its acceptance, estimated financial expenses, the data can be the basis for adoption of the act, about volume what acts of the akim of the city have been adopted on the matter earlier. The text of the act of the akim of the city shouldn't contain the provisions of declarative character which aren't bearing semantic and legal loading. Nstructions in decisions of the akim of the city have to be addressed, to usually public authorities which are under supervision and accountability of the akim of the city or to their heads. In relation to the bodies which aren't subordinated to the akim of the city of an assignment have to be stated in a recommendatory form or in coordination with him. In the text of the decision of the akim of the city of the name of public authorities and other organizations are stated completely according to the official name and it is uniform in all text. 48
In case the decision approves staff of the commission or other body, surnames, names and middle names are given completely. Surnames are placed in alphabetical order. At decision-making or orders of the akim of the city instead of acting, the last has to be put on loss (completely or his parts) by the same decision (order). Decisions come into force only after registration in the register in Justice department and publications in the newspaper . Acts of local administration shouldn't contradict the Constitution of the Republic of Kazakhstan and the current legislation and can be repealed by higher executive body, or the President of the Republic of Kazakhstan, or in a judicial proceeding. The unity and coherence in activity of local executive bodies are provided by means of the organizational legal mechanism established by acts . So, the Government performs management of activity of local executive bodies concerning public administration, controls performance by akimats of laws, acts of the President and the Government. The competence of the akim of area, the cities of republican value and the capital includes coordination of work of subordinate akimats and akims and also interaction with local governments through akims of areas, cities of regional value, the area in the city of republican value, the area in the capital. Akims of areas, cities of regional value concerning the competence and on the questions referred to competence of regional akimats bear responsibility to the President and the Government and also to akims of areas, and the last, in turn, before the head of state and the Government. Regional (the cities of republican value, the capital) and regional (the cities of regional value) akimats – collegial bodies, but they aren't legal entities. Regional in the city of republican value (capital), city regional value, settlement, aulny (rural), district akimats aren't formed. As for akims of the specified administrative and territorial units, they according to the legislation are officials of the relevant regional (city) akimats and without power of attorney act from their name in relationship with public authorities, the organizations and citizens. The local government providing the independent decision with the population of questions of local value admits the Republic of 49
Kazakhstan. The local government is carried out by the population directly by elections and also through electoral and other local governments in the rural and city local communities covering territories in which groups of the population compactly live. The order of the organization and activity of local governments is defined by citizens in the limits set by the law. At the same time the samostoyatelknost of local governments within their powers established by the law (item 13 of Art. 89 of the Constitution) is guaranteed. Regional akimat with local governments of the city and rural areas. The local government in Kazakhstan is carried out by the population directly and also through electoral and other local governments. They are created in rural and city communities of citizens. Local communities represent associations of the citizens who are compactly living in borders of the territory of the village, settlement, streets, quarters of the city. For example, according to the provision on department of communications with economic entities of Akimat of Aktau, this department establishes connection of city akimat with the economic entities providing activity of the city and is structural division of the office of the akim of the city. The main objectives and functions of department are: – providing the office of the akim of the city with operational and reliable information of the management about functioning and position in the enterprises of housing and communal services and communication. – coordination and operating control behind electro-heat supply of the enterprises and the population of the city. Quickly reacts to all cases of accidents on housing and communal services and communication, idle times and disconnections from the set working hours of the enterprise and also to complaints and statements of residents and adjacent settlements. Quickly reacts to all cases of natural disasters, environmental disasters. – maintaining the current documentation, bringing to performers of the order and indication of the management of the office of the akim of the city. – preparation of meetings with heads of the enterprises of housing and communication for production and current questions of the management of the office of the akim of the city. 50
The department has the right: – in accordance with the established procedure and in coordination with the management to involve other departments of the office of the akim of the city by preparation of materials, the documents which are within the competence of department; – to request from devices of posselyakim, managements, departments of the enterprises, the organizations and other services of municipal administration of information and other necessary materials, to receive written and oral explanations of the corresponding officials concerning questions of department; – at the request of the management to check work the enterprise, the organization and city institutions irrespective of forms of ownership and also structural divisions of the city on the questions entering competence of department. – maintaining the current documentation, bringing to performers of the order and indication of the management of the office of the akim of the city. – preparation of meetings with heads of the enterprises of housing and communication for production and current questions of the management of the office of the akim of the city. The department has the right: – in accordance with the established procedure and in coordination with the management to involve other departments of the office of the akim of the city by preparation of materials, the documents which are within the competence of department; – to request from offices of settlement akims, managements, departments of the enterprises, the organizations and other services of the city administration of information and other necessary materials, to receive written and oral explanations of the corresponding officials concerning questions of department; – at the request of the management to check work the enterprise, the organization and city institutions irrespective of forms of ownership and also structural divisions of the city on the questions entering competence of department. Thus, the nation-wide policy of executive power in areas, areas, the cities, districts of the cities is carried out by her local bodies headed by akims; departments, managements and other divisions and services. This policy is pursued in combination with interests and requirements of the corresponding administrative and territorial units. 51
Below, in independently made table 4, the major regulations on local executive authorities in the Republic of Kazakhstan are in a condensed form stated. The system of local state bodies in process of development of the market relations and further decentralization of management it will be essential to change towards reduction of the administrative services which are contained at the expense of places of other budget. But we consider that economic and organizational transformations have to lean on the strict legal base regulating among other the main questions of activity executive bodies of the state. Any changes in the status of republican bodies can't but involve reforming of local structures. At the same time, and improvement of the legislation on local public authorities needs to be coordinated to the vertical system of creation of executive power strictly. Table 4 Administrative legal status of local executive bodies [62, 64, 67] 1 Appointment order
Functions of akimat
2 Akims of areas, cities of republican subordination and the capital are appointed to a position and dismissed by the President of the Republic of Kazakhstan on representation of the Prime minister, directly act as representatives of the President and the Government, and their activities for social and economic development are coordinated by the Government of the Republic of Kazakhstan. – develops draft budgets, programs and development plans for the city, – forms, liquidates and will reorganize the enterprises in the subordinated territory, – exercises control of rational use of natural resources and lands, – will organize the correct operation of housing stock and constructions of municipal services, – knows education, questions of social protection of the population, to development of cultural and mass and sports work among the population, – resolves the issues connected with strengthening of public order and others. Akim, deputy akims For organizational, legal and material support of activity of akims the device including functional departments is created
1 The normative legal acts regulating activity
Normative legal acts of local executive bodies
2 Constitution of RK; Law of RK «About Local State Management and Selfgovernment in RK» of January 23, 2001 No. 148-P; Decrees of the President of Kazakhstan; Resolutions of the government of RK On the questions carried to his maintaining, the akim adopts resolutions and orders. Deputy akims publish orders, heads of bodies of local administration within the competence issue orders.
Questions for self-checking: 1. Call structure and questions of the organization of activity of local executive authorities? 2. Disclose legal status of Akim? 3. What interactions of Akimats from maslikhata? The recommended literature: 1. The message of the President of Kazakhstan to the people of Kazakhstan «Kazakhstan in new global reality: growth, reforms, development». – November 30, 2015. 2. Taranov A.A. Administrative law of the Republic of Kazakhstan: academic course. – And., 2003. – 256 p. 3. Tleubayev K.O. To a question of functions of the Government of RK // Messenger Vestnik. – №3 (35). – And., 2005. – P. 23-28. Normative legal acts: 1. Constitution of RK of August 30, 1995 of t. 2. «About the President of the Republic of Kazakhstan». Constitutional Law RK of December 26, 1995. 3. The constitutional law of the Republic of Kazakhstan of December 18, 1995 No. 2688 O the Government of the Republic of Kazakhstan (with changes and additions). 4. Law of the Republic of Kazakhstan of January 23, 2001 No. 148-II Local public administration and self-government in the Republic of Kazakhstan.
SUBJECTS OF ADMINISTRATIVE LAW: NATURAL AND LEGAL ENTITIES
Keywords: administrative rights, citizen, public administration, special rights, legal safeguards, administrative duties, foreigners and persons without citizenship, refugees, oralmana, legal entity, legal status of the enterprises, public associations, authorization, registration and control and supervising system, registration, licensing order.
A number of guarantees, i.e. special economic, political, organizational and legal (including administrative and legal) the measures directed to realization and protection of the rights and freedoms of citizens from any violations is provided in the Constitution, laws and other acts. Administrative legal status is a component of the constitutional status and represents a circle of the rights and the subject's duties in her relations with executive authorities (officials). Administrative legal status administrative legal capacity and administrative capacity are compound. Some scientists refer to him and administrative delictability. Administrative legal capacity is an ability of the person to have the rights and duties fixed by administrative rules of law that is in relation to executive authorities. Partially she arises from the moment of the birth (has the right addressed to and to acquisition of nationnality). The administrative capacity is an ability to carry out the duties provided by administrative precepts of law. The capacity arises after legal capacity, the age of her approach isn't established by the law. There is a wish to note that earlier, than any other, at the citizen arises administrative capacity. Her partial emergence and the subsequent increase is connected with physical and intellectual growing of the person. 54
The administrative delectability – comes from 16 years ability to bear administrative responsibility for the actions. The administrative rights are a component of constitutional rights and are subdivided into 4 look: 1. Right of citizens for participation in public administration. 2. Right of citizens for participation in their life of the state. 3. Special rights. 4. Right for protection. 1. The right of citizens for participation in public administration include the following: a) the right of revenues to public service – the public servant can become the citizen of the Republic of Kazakhstan the appropriate level of education and preparation which has reached 18 years and having; b) active and passive electoral right; c) right of membership in political parties and public associations. According to the legislation citizens of the Republic of Kazakhstan can become the reached 18 years the member of political party; d) the right of obtainning necessary information and documents in the order established by the law. At the same time public authorities can't refuse the right of obtaining information concerning them personally or their relatives; e) the right for the address regulated by the Decree of the President «About an order of consideration of the address of citizens» according to which addresses are divided into 5 types, namely complaints, statements, inquiries, offers and responses. They can be given in a written and oral look. The term of consideration is 1 month. 2. The state has no right to interfere with private life of citizens. However, citizens have the right to receive a certain help from the state, namely to receive medical, technical, organizational and other care on a paid basis and to use the free benefits, for example school education. 3. The rights of citizens given by the state on the basis of the petition from the citizen (that is his desire) are recognized as the special rights, at compliance to his certain requirements. For example, right for driving of motor transport, carrying and storage of firearms, right for hunting, etc. 4. The right for protection is subdivided into the right of submission of the judicial and administrative complaint. An administrative complaint is filed by citizens to higher instances of bodies (officials) who have violated the rights and freedoms of citizens. The term of consideration of administrative complaints 1 month in case for consideration there is no need for investigation the complaint is considered 55
within 15 days. Besides, the citizen has the right to protect the life, property and the relatives by application of the methods allowed by the legislation – physical force, weapon. Administrative duties are based on a duty of citizens to respect and execute the Constitution and the legislation of the Republic of Kazakhstan. From this duty the following follows: to render assistance to public authorities in implementation by them of the power, to provide necessary documents and information, to carry out and not to violate rules and instructions, etc. The legislation provides the bases in the presence of which restriction of the rights and freedoms of citizens is possible, namely: a) force majeure, b) commission by the citizen offense, c) for national security, d) restrictions necessary in connection with public work. Administrative legal status of foreigners and persons without citizenship. A number of the administrative rights and duties which are regulated by the Decree of the President which is valid the Law «About a Legal Status of Foreign Citizens on Territories of the Republic of Kazakhstan» and a number of other normative legal acts also have a legal status of foreigners and persons without citizenship. Foreign citizens the persons who aren't citizens of RK and having the evidence of the belonging to nationality of the foreign state admit. The persons living in the territory of RK and not being citizens of RK and not having the evidence of accessory in nationality of the foreign state are considered as persons without citizenship. Two categories of foreign citizens are distinguished: constantly living and temporarily staying in the Republic of Kazakhstan. Constantly living in RK the foreign citizens who have got for that the permission and the constant residence permit issued to Department of Internal Affairs admit. The foreign citizens who are in RK on other legal ground are considered temporarily staying in RK. They are obliged to be registered in accordance with the established procedure and to leave RK after the stay term determined by it. The legal status of foreigners differs depending on the stay purpose, employment, etc. That circumstance in what role the foreigner acts is of great importance: as representative of the state, international organization, in personal quality. According to the purpose of stay in the Republic of Kazakhstan it is possible to allocate the following groups of foreigners: 56
– the diplomats, consular employees and other representatives of the state using diplomatic privileges and immunities on the basis of the international agreements, the staff of the international organizations; – the foreigners living in the country for business; – the foreigners staying in the country during short term if they don't enter into above-mentioned groups, exists distinctions depending on duration and the reasons of stay, but they don't affect, as a rule the rights and duties; – the foreigners staying in the country for the purpose of training; – the foreigners working in the country of residence in foreign establishment; – the foreigners who are constantly living in the country without a possibility of definition of the purpose of the stay, for example, the foreigners who are constantly living in the country from the moment of the birth. According to the Constitution of the Republic of Kazakhstan foreigners and persons without citizenship have equal legal status with citizens of the republic, except for a row restriction. Which treat: lack of the political rights (an active and passive electoral right, the right of membership in political parties), restrictions of the right of free movement across the territory of the Republic of Kazakhstan (are obliged to be registered in Department of Internal Affairs, to get permission to visit of certain places), are deprived of the right of revenues to public service, etc. They have a number of duties determined by the legislation. Are obliged to be registered, register transport, to respect and execute the Constitution, laws and rules, to respect national customs, etc. Foreigners and persons without citizenship bear administrative responsibility also on an equal basis with citizens of Kazakhstan. The exception is made by the persons using diplomatic immunity namely diplomats, consuls, representatives and members of their families. Foreigners drive in RK and leave RK on valid the international passport or to the documents replacing them in the presence of the entry and exit visas issued by representatives on that public authorities of RK. Administrative legal status of refugees, oralman (repatriate). The law of the Republic of Kazakhstan from 12/13/1997 N 204-1 «About 57
population shift» governs the public relations in the field of population shift, defines legal, economic and social bases of migration processes and also creations of necessary living conditions on the new place for oralman (repatriat). Refugees are foreigners who owing to reasonable fears can fall a victim of prosecutions on political convictions, sign of race, religion, nationality, nationality, belonging to a certain social group, are forced to be out of the country of the civil accessory and can't use protection of the country or don't wish to use protection owing to such fears, or the persons without citizenship who are out of the country of the former usual residence who can't or don't wish to return to her owing to these fears. In the Constitution of RK it is enshrined that the Republic of Kazakhstan grants a political asylum to foreign citizens and persons without citizenship according to rules of international law. RK grants shelters to foreigners who became the victims of human rights violations. The issue of granting a political asylum is resolved by the President of Kazakhstan. Oralmanes (repatriates) there are foreigners or persons without citizenship of the Kazakh nationality who were constantly living at the time of sovereignty acquisition by the Republic of Kazakhstan beyond her limits and arrived in Kazakhstan for the purpose of full-time residence. The president of the Republic of Kazakhstan on representation of the Government of the Republic of Kazakhstan establishes a quota of immigration of oralman(repatriates) for the forthcoming year and (or) on prospect for persons to whom privileges and compensations according to the present Law extend. In the regulatory legal act establishing a quota of immigration of oralman (repatriates) which is obligatory for execution by all organizations irrespective of forms of ownership, and state bodies, the limit number of families with the indication of the countries from which they move of the action necessary for their reception, arrangement and adaptation, regions where they have to move, the differentiated grants and the system of privileges for oralman (repatriates) are defined. Conditions of accommodation of the persons who have addressed with the petition for recognition of their oralmanama in the centers of temporary placement are defined by the Government of the Republic of Kazakhstan. 58
The persons which have submitted the petition to diplomatic missions or consular establishments of the Republic of Kazakhstan abroad about recognition of their oralmanes (repatriates) and arrived to the territory of the Republic of Kazakhstan are obliged: – on receipt of the direction to leave for the center of temporary placement there within three days; – to notify the relevant territorial services of migration on the place of residence and to be registered by law-enforcement bodies in the order established by the legislation of the Republic of Kazakhstan; – to observe an established order of accommodation in the center of temporary placement; – to have medical examinations upon the demand of bodies of health care, to receive inoculations, treatment and also to carry out instructions of bodies of health care; – to report to the relevant migration services the data necessary for consideration of the petition. The status of an oralman stops after obtaining nationality of the Republic of Kazakhstan by him. Legal entities as subjects of administrative law. Treat legal entities commercial (enterprises) and non-profit organizations (institutions, public associations, funds). They have the certain rights and duties in relation to the state which are defined by Laws of Kazakhstan and bylaws, so the rights concern the most general: on not intervention in internal affairs from the state; the right for protection of the rights and interests including on the judicial and administrative complaint; right for creation and liquidation of legal entity and others. Non-profit organization the legal entity which doesn't have commercialization as a main objective admits, protection of the rights, legitimate interests of citizens and the organizations, for settlement of disputes and the conflicts, satisfaction of spiritual and other needs of citizens can be created for achievement of the social, cultural, scientific, educational, administrative purposes; for rendering legal aid and also in other purposes aimed at providing public benefits and the benefits of the members. Depending on the status of the legal entity his rights depend, so, for example, political parties have the right to participate in elections, the right to hold propaganda events, etc. Religious associations are authorized to create the religious centers, to publish 59
religious literature and another. That is the status of the legal entity depends generally on the purpose of his creation that is regulated by the Civil Code, Laws of the Republic of Kazakhstan «About political parties», «About public associations», «About religious associations». According to the Civil Code to separate category of subjects it is necessary to consider the persons who are engaged in business activity. They carry out commercial activity for the purpose of receiving profit under the risk. This category has to obtain the license (patent) for a certain type of business activity, and if necessary and the qualification certificate. Respectively, they have the right to carry out activity according to the obtained license (patent), to protect the rights and interests, have the right for appeals to executive and law enforcement agencies of the power and also in court. Duties of this category of subjects are respectively regulated by the Civil Code and a number of acts, namely the Law of RK «About Protection and Support of Private Business» of July 4, 1992, the decree of the President of July 14, 1996. «About additional measures for realization of the state guarantees of freedom of business activity», etc. Fundamental obligations of legal entities is the state registration, a re-registration in the cases determined by the legislation, obtaining the license for conducting commercial activity, payment of taxes, creation a condition for public authorities for execution of the duties by them, providing necessary documents and information, maintaining the necessary reporting, etc. The political parties, labor unions and other associations of citizens created on a voluntary basis for achievement by them of the common goals which aren't contradicting the legislation are recognized the Republic of Kazakhstan as public associations. Public associations are non-profit organizations. Public associations are created and development of activity and amateur performance of citizens work for realization and protection of the political, economic, social and cultural rights and freedoms; satisfactions of professional and amateur interests; development of scientific, technical and art creativity, protection of life and human health, protection of the surrounding environment; participations in charity; carrying out cultural and educational, sports work; protection of historical and cultural monuments; patriotic, legal and humanistic education; expansion and strengthening international cooperation; imple60
mentation of other activity which isn't forbidden by the legislation of the Republic of Kazakhstan. Creation and activity of public associations which pursues the extremist aims and also creation of the paramilitary forces which aren't provided by the legislation of the Republic of Kazakhstan are forbidden. In the Republic of Kazakhstan republican, regional and local public associations can be created and work. The associations having the structural divisions (branches and representations) in the territory of more than a half of the areas of the Republic of Kazakhstan belong to republican public associations. The associations having the structural divisions (branches and representations) in the territory of less than a half of the areas of the Republic of Kazakhstan belong to regional public associations. The associations operating in borders of one area of the Republic of Kazakhstan belong to local public associations. The state registration of republican, regional public associations, structural divisions (branches and representations) of foreign and international noncommercial non-governmental associations is carried out by the Ministry of Justice of the Republic of Kazakhstan. The state registration of local public associations, branches and representations is carried out by territorial authorities of justice. The state registration and re-registration of public associations is made as it should be and the periods provided by the legislation on the state registration of legal entities. For registration of public combining application is submitted to registering body in two-month period from the date of its education. The charter, the protocol of the constituent congress (conferences, meetings) which adopted the charter, the information about initiators of formation of combining, and the documents confirming the location of public combining and also payment of collection for the state registration of legal entities are enclosed to application. The term which is passed for good reasons established for filing of application about registration of public association is restored by the body which is carrying out registration. In the cases provided by the legislation, public association is subject to a re-registration. 61
For registration and a re-registration of public associations charge for the state registration of legal entities in the order determined by the Tax Code of the Republic of Kazakhstan is raised. Religious association – voluntary association of citizens of the Republic of Kazakhstan, foreigners and persons without citizenship, in the order of their interests which have united on the basis of community established by acts of the Republic of Kazakhstan for satisfaction of spiritual needs. Religious associations have the right to contain places of worship. Church services, religious practices, ceremonies and (or) meetings are freely held made) in cult buildings (constructions) and in the territory allocated to them, in places of worship, in institutions and rooms of religious associations, at cemeteries and in crematoriums, dwellings, objects of public catering in case of need on condition of respect for the rights and interests near the living persons. In other cases religious actions are carried out in the order established by the legislation of the Republic of Kazakhstan. In the Republic of Kazakhstan religious associations with the status can be created and work: local, regional and republican. The religious association formed at the initiative of not less than fifty citizens of the Republic of Kazakhstan, operating in borders of one area, city of republican value and the capital is recognized as local religious association. The religious association created at the initiative of not less than five hundred citizens of the Republic of Kazakhstan who are participants (members) of two and more local religious associations numbering not less than two hundred fifty citizens the Republic of Kazakhstan from each of them which represent not less than two areas, the cities of republican value and the capital is recognized as regional religious association. Regional religious associations are created and carry out the activity within the territory of activity of these local religious associations. The religious association formed at the initiative of not less than five thousand citizens of the Republic of Kazakhstan representing all areas, the cities of republican value and the capital, numbering not less than three hundred citizens the Republic of Kazakhstan is recognized each of them and also having the structural divisions (branches and 62
representations) in all territory of the Republic of Kazakhstan as republican religious association. Religious association is created at the initiative of the citizens of the Republic of Kazakhstan who have reached eighteen-year age, convoking the constituent assembly (a congress, a conference) at which decisions on creation of religious association, his name, the charter are made and his governing bodies are formed. Citizens take personal part in the constituent assembly (a congress, a conference) at own will. Religious association has to have the following signs: ‒ uniform dogma; ‒ commission of religious practices, ceremonies and sermons; ‒ religious education of the participants (members) and religious followers; ‒ spiritual orientation of activity. Republican religious associations and regional religious associations according to the charters have the right to create the spiritual (religious) organizations of education realizing professional training programs of training of priests in the form of institutions. Creation and activities of the legal entities who are engaged in religious activities in other legal form, except as religious combining, are not allowed, except for the spiritual (religious) organizations of education. Creation of organization structures of religious associations in public authorities, the organizations and institutions, the organizations of education and health care is not allowed. Religious combining acquires capacity of the legal entity from the moment of its state registration. The state registration of republican religious associations and regional religious associations is carried out by the Ministry of Justice of the Republic of Kazakhstan. The state registration of local religious associations, registration registration of branches and representations are carried out by territorial authorities of justice. For registration application is submitted to registering body in two-month period from the moment of making decision on creation of religious combining. Are enclosed to application: 63
‒ the charter of religious combining signed by the principal of religious combining; ‒ protocol of the constituent assembly (congress, conference); ‒ the list of citizens initiators of the created religious association on electronic and paper carriers in the form established by registering body; ‒ the document confirming the location of religious association; ‒ the printing religious materials opening history of emergence and fundamentals of dogma and containing data on the religious activity corresponding to him; ‒ the receipt or other document confirming payment in the budget of a registration fee for the state registration of legal entity; ‒ the decision on election of the head of religious association or in case of appointment of the head the foreign religious center the document confirming coordination with authorized body. At registration of regional religious association are in addition submitted the list of participants of each of the local religious associations initiating creation of regional religious associations in the form established by registering body and also notarially certified copies of charters of their local religious associations. Before the expiration of year from the date of registration republican religious associations for confirmation of the status are obliged to present to the body which is carrying out registration, copies of the documents confirming passing of registration registration by their structural divisions (branches and representations) in territorial authorities of justice. The state registration of religious associations and registration registration of their branches and representations, re-registration, refusal in registration of religious associations are carried out as it should be and the terms provided by the Law of the Republic of Kazakhstan «About the state registration of legal entities and registration registration of branches and representations» taking into account the features provided by the present Law. The term of the state registration (re-registration) is interrupted for conducting theological examination and verification of the list of citizens initiators of creation of religious association regarding compliance to requirements of the present Law. 64
The registering body no later than three working days from the date of making decision on a break of term of the state registration (reregistration) sends to authorized body of the copy of the documents necessary for the organization of conducting theological examination, and to local executive bodies of areas, cities of republican value and the capital of the copy of lists of citizens initiators of creation of religious association for check. By results of verification of the submitted documents on compliance to the legislation, the carried-out theological expertize, verifycation of the list of citizens initiators of creation of religious association the decision on the state registration or on refusal in the state registration of religious association is made. Questions for self-checking: 1. Give definition of administrative legal status of citizens of RK? 2. What administrative rights of citizens are affirmed in the Constitution of RK? 3. What administrative duties of the person and citizen are enshrined in the Constitution of RK? 4. What restrictions of the rights foreign citizens in RK exist? 5. What administrative legal status of public associations? 6. Disclose administrative legal status of religious associations? The recommended literature: 8. The message of the President of Kazakhstan to the people of Kazakhstan «Kazakhstan in new global reality: growth, reforms, development». – November 30, 2015. 9. Taranov A.A. Administrative law of the Republic of Kazakhstan: academic course. – And., 2003. – 256 p. Normative legal acts: 1. The law of the Republic of Kazakhstan of January 12, 2007 No. 221-III «About an order of consideration of appeals of natural and legal entities». 2. The law of the Republic of Kazakhstan of June 19, 1995 No. 2337 «About a legal status of foreigners» (with changes and additions as of 11/24/2015) 3. Law of the Republic of Kazakhstan. «About population shift». (with changes and additions as of 4/6/2016). Astana, Akorda, on July 22, 2011. No. 477-IV ZRK. 4. Law of the Republic of Kazakhstan. About religious activity and religious associations. Astana, Akorda, on October 11, 2011. No. 483-IV ZRK. 5. The law of the Republic of Kazakhstan of May 31, 1996 No. 3-I «About public associations» (with changes and additions as of 4/9/2016).
Keywords: public service, personnel policy, Ministry of affairs of public service, hired system, career system, order of passing of civil service, legislation on civil service, public servant, political government employees, administrative government employees, disciplinary responsibility, disciplinary offense.
Public service – complex institute. Therefore attempts of her analysis from the different parties are quite justified. According to most of experts, realization of public service is defined by a set of the precepts of law and instructions regulating labor behavior of officials and state administrative facilities; her integration into socio-political structure of society for the purpose of control over institutional types of actions; existence of the means and resources allowing to perform successfully functions of public administration. For a clear understanding of an essence of this institute it is important to reveal the signs of public service allowing to distinguish her from other types of professional activity. The critical analysis of system of the signs of public service described by various researchers and which have received reflection in the national legislation of this or that country allows to mark out her following main signs. The first. Public service is carried out in the sphere of public administration, i.e. the activity which isn't connected directly with production of the material and spiritual benefits, rendering social services to the population. At the same time the concept of public administration has to be treated not in its narrow value as the activity of a state machinery proceeding only in the sphere of executive power, and in wider plan as the operating influence of the state in various areas of public life. Otherwise outside this concept there will be an activity of government employees of the representative, judicial and other bodies which aren't relating to an executive branch of the power. 66
The second. Public service has public character, is carried out for the benefit of all society (synthesis of interests of citizens, various social groups, the organizations, the states). The third. Public service in a certain measure carries as well political character since it is directed to realization of tasks and functions of the state. The fourth. Public service is paid only at the expense of means of the state budget. The fifth. Public service is carried out by public servants – the persons replacing established posts in public authorities, as a rule, on a constant basis. The sixth. Public service demands existence of the corresponding professional knowledge, skills and experience of activity that assumes establishment of certain qualification requirements and conditions to the persons applying for replacement and replacing the state positions and also constant improvement of such knowledge and skills during all career of the government employee. The seventh. Public service assumes presence at government employees of this or that volume of powers of authority, i.e. the rights to issue acts of a binding character not only for subordinates, but also other natural and legal entities. The eighth. Public service is carried out strictly on a legal basis, i.e. ways of replacement of the state positions, tasks, powers, an order of activity of public servants usually are defined by the law. Noted signs allow to formulate author's definition of a concept «public service». Public service is the professional, paid from public funds activity of the persons replacing positions in public authorities which is carried out in the order established by the law by means of realization of powers of office, the rights and duties and aimed at providing performance of tasks and realization of functions of the state. In the world there are various systems of public service. But career and hired systems belong to the most widespread and effective. The hired system exists only in three countries, namely the USA, Canada and Finland. Her signs are that public servants are employed for a certain term (from 1 to 3 years), the contract is renewed only at positive characteristics about professional qualities of the person. Besides, this system assumes an uzkoprofilnost of experts. 67
The career system works in a number of the countries of Europe and Asia, for example Great Britain, France, Germany, Japan, etc. Recently the way on this system has taken also Kazakhstan. The career system assumes the following signs: division of service and employees on political and administrative; pozhiznennost, that is security of the status of the public servant; revenues to service are possible only after passing special examinations. The Kazakhstan system of public service possesses the following main characteristics: ‒ division of system of public service on political and administrative; ‒ the approval of the principles of a meritocracy at selection and advance of the public servant; ‒ introduction of competitive and career model in the system of public service; ‒ use of new technologies in management process and monitoring of shots; ‒ existence of mechanisms of stimulation of continuous training of public servants; – development and deployment of the information system «electronic Government». Periodization of the contemporary history of development of public service in Kazakhstan as the sovereign state on stages of her development: 1) a preparatory stage (the middle of the 80th years of the 20th century – the end of 1992) – reforming of public administration and public service, legal regulation of special types of public service: military, bodies of prosecutor's office, law-enforcement bodies; 2) the initial stage (1993-1995) – adoption of the first Constitution of the Republic of Kazakhstan 1993; 3) the main stage in which three periods are allocated: a) 1995-1998 – adoption of the existing Constitution and the first basic act for public service – the Decree of the President of the Republic of Kazakhstan, the valid law, «About public service» No. 270; b) 1999-2014 – and the subordinate regulations providing implementation of this law c) On November 23, 2015 – adoption of the new Law of the Republic of Kazakhstan «About public service» Astana, Akorda, No. 416-V ZRK. 68
The public relations connected with revenues to public service of the Republic of Kazakhstan, her passing, the termination, the defined legal status, material security and social protection of public servants and also questions of activity of other persons in public authorities are regulated by the Law of RK «About Public Service of RK» of November 23, 2015. In the message of the President of the Republic of Kazakhstan of January 17, 2014 N.A. Nazarbayev has noted: «At the movement to number of 30 developed countries of the world the atmosphere of the honest competition, justice, rule of law and high legal culture is necessary for us. The equality before the law has to become a real basis of law and order. The men in uniform given big authority have to differ in irreproachable conduct and high professionalism. The major task – to continue formation and realization of new anti-corruption strategy» Public service of RK as the professional activity of a special group of people connected with performance of administrative functions in society is based on certain principles. 1. Legality – This principle is expressed in the requirement of exact observance and performance of the Constitution, laws, decrees of the President of Kazakhstan by all government employees irrespective of their rank and a post. Any illegal acts are punishable. 2. The Kazakhstan patriotism – the main task is formation of feeling of the Kazakhstan patriotism and pride of the country here, the citizens arriving on civil service have to keep traditions of the people, to be patriots of the country. 3. Unities of system of public service, irrespective of division of the government on legislative, executive and judicial. – Despite different service instances and systems, public servants serve one state, are obliged to protect his interests, their legal status is regulated by the uniform legislation. 4. A priority of the rights, freedoms and legitimate interests of citizens before the interests of the state. That is employees have to be guided first of all by the principle of recognition of the rights and freedoms of citizens as supreme value, not to violate the right of citizens and to provide to citizens a full possibility of realization of the rights and freedoms. In emergence cases disagreement between the interests of the state and the citizen, the prerogative has to be given to the interests of the person and citizen. For protection of the rights and 69
legitimate interests citizens have the right to address with offers, statements, complaints, responses and inquiries to public authorities. 5. General availability, that is the equal right of citizens of the republic for access to public service and advance on public service according to the abilities and vocational training. All citizens of Kazakhstan who have reached 18-year age and having the education level corresponding to a pretenduyemy position and preparation have rights of revenues to public service. At the same time all citizens are equal irrespective of a social status, a floor, nationality, language, religion, the residence, etc. 6. Voluntariness of arrival of citizens on public service. This principle means that nobody can force citizens to arrive on public service. That is selection of candidates for positions of government employees has to be carried out on a voluntary basis. 7. Professionalism and competence of public servants – mentions all stages of service, namely, reception to the state positions has to be carried out on a competitive basis among professionals with good level of training. Besides, in the course of service the level of professional suitability of a post is checked (certification). 8. Equal compensation for performance of equivalent work. Compensation of public servants is made according to the Uniform system of the compensation approved by the President of Kazakhstan. She depends on category, group and length of service in public authorities. Payment has to provide sufficient material conditions for faultless and exhaustive execution of official duties. 9. A meritocracy – recognition of personal merits and achievements of the public servant, his advance on public service according to abilities and vocational training. 10. Obligation of execution of the decisions made by higher public authorities and officials in limits power for the subordinated public servants and employees of subordinate public authorities. Nonexecution or inadequate performance of orders of higher bodies and officials involves application of measures of administrative and disciplinary coercion. 11. Accountability and accountability of public servants. This principle is under construction on organizational subordination, the state discipline in relationship between the coordinated bodies. Professional activity of each government employee is carried out under 70
direct control of higher body and the official. So, the Government regularly informs the President of the country on performance of the activity, in turn the Government performs management of activity of the ministries and other central executive bodies, controls performance by them of laws, acts of the President. 12. Accounting of public opinion and publicity, except for the activity making the state secrets or other secret protected by the law. The considered principle acts in the form of the requirement of obligatory accounting of public opinion and publicity any their forms (critical remarks to state agencies of their officials in media, a speech of heads of state agencies about the activity, etc.). 13. Ethics. 14. Intolerance to offences. 15. Legal and social security of public servants. The state undertakes a duty of social security of public servants and their legal protection, rendering legal aid. To them the right for remuneration for work, right to rest, the right for safe working conditions, social security treat without any discrimination. 16. Encouragement of public servants for conscientious, initiative execution of functions. Both moral, and material encouragement for the purpose of stimulation of activity of employees is carried out. 17. Personal responsibility for non-execution or inadequate execution of the functions and excess of the powers by him. That is everyone bears individual responsibility for the actions and consequences caused to them. 18. Continuity of professional development of public servants. Public servants are obliged to improve the skills as at the expense of the state, and if necessary for the own account (recertification). These principles express the most characteristic features of civil service, their observance promotes effective activity of all government. The president as the highest official performs management of questions of personnel policy of public service. Direct control is exercised of Agency on affairs of public service and anti-corruption which has the right to make offers to the President of Kazakhstan concerning various aspects of public service, carries out protection of interests of employees and also controls performance of the legislation in the field. 71
The Agency realizes the following tasks: – participates in development and implementation of state programs in the field of enhancement and increase in efficiency of public service; – creates the republican database on a staff of civil service and a personnel pool of dl of holding the posts of administrative government employees; – develops and claims standard qualification to requirements to categories of administrative public servants; – develops and submits for approval to the President of Kazakhstan the REGISTER of positions of administrative public servants; – develops suggestions for improvement of system of compensation, social legal protection of government employees; – coordinates activities of state agencies concerning preparation, re-trainings and professional development of public servants. Concerning the competence Agency advises government employees in cases of violations of their rights and legitimate interests; defines conditions and an order of holding competitions on occupation administrative state. Positions and also exercises control of correctness of holding competitions; participates in preparation of drafts of international treaties concerning civil service. In organizational structure of management of civil service following level the HR department of public authorities is. Within the competence HR department: – makes out decisions of state agencies, are connected with passing by public servants of public service; – runs personal records of employees, makes necessary records in service records of government employees; – prepares for submission to authorized body lists of vacancies, applications on filling of vacancies, will organize training, retraining and professional development of government employees. Especially it should be noted introduction of the Republican information management system a personnel of civil service through which it is obviously possible to provide carrying out competitive selection and certification, personnel management and determination of current state of civil service. 72
In Strategy Kazakhstan-2050 priorities of development of public service are defined: «improvement of system of hiring, preparation and advance of shots»; «public service as service of the nation»; «creation and support of high reputation of public service» which are put by the present Concept in a basis of formation of new model of public service of the Republic of Kazakhstan. The new model of public service first of all assumes modernization of a concept «public service» which has to become a synonym of the concept «service of the nation (society)» and mean orientation to the population as consumer of public services. The new model of public service is focused on recognition of importance of a human factor and carrying out effective personnel work that is a key factor of her professionalizing. The new model of public service is directed to formation of effective personnel mechanisms – an effective and transparent order of revenues to public service, a possibility of continuous professional development of public servants, interrelation of results of work and the systems of encouragement. In new model of public service the case of the highest administrative public servants who are professionally providing efficiency of realization of state policy will be created, mechanisms of receipt and passing of public service will be essentially improved. Thus, proceeding from provisions of Strategy Kazakhstan-2030, the triune purpose of formation of new model of public service is the following: 1) effective personnel policy and a control system of the human capital in the system of public service; 2) high quality of rendering public services and efficiency of activity of public authorities; 3) positive image and ethics of behavior of public servants. According to the triune purpose are defined by problems of formation of new model of public service: 1) formation new and improvement of the operating personnel mechanisms in the system of public service; 2) improvement of quality and availability of public services and orientation of activity of public servants to the population as consumer of public services; 73
3) ensuring the high status and prestige of public service, formation of ethical standards of behavior of public servants. For ensuring consecutive high-quality personnel updating and professionalizing of public service its organizational structure and the regulatory legal base will be modernized. The professional public service focused on result and high-quality rendering public services and also relevant to relevant requirements state socially – economic development will become result of formation of new model. Questions for self-checking: 1. Call legal sources of public service. 2. Whether the labor legislation works in the system of public service? 3. Give definition «public service». 4. On what principles the system of public service is under construction? 5. Call types of public service. The recommended literature: 1. The message of the President of Kazakhstan to the people of Kazakhstan «Kazakhstan in new global reality: growth, reforms, development». – January 17, 2014. 2. Legal problems of reforming of public service of sovereign Kazakhstan: Monograph/group of authors. – Astana: Institute of the legislation of the Republic of Kazakhstan, 2003. 3. Turisbek A.Z. Problems of the theory and practice of public service in the Republic of Kazakhstan. Monograph. – M.: Institute of legal and comparative researches, 2011. – 316 with. 4. Uvarov V.N. Public service and management: textbook. – Petropavlovsk: Sowing. Kaz.yurid. academy, 2004. – 414 p. Normative legal acts: 1. The law of the Republic of Kazakhstan of November 23, 2015 No. 416-V «About public service of the Republic of Kazakhstan» (with changes and additions from 4/6/2016) 2. The decree of the President of the Republic of Kazakhstan of December 29, 2015 No. 152 «About some questions of passing of public service» (with changes as of 7/13/2016) 3. Decree of the President of the Republic of Kazakhstan On measures for further improvement of ethical standards and rules of conduct of public servants of the Republic of Kazakhstan. – Astana, Akorda, on December 29, 2015
ADMINISTRATIVE AND LEGAL STATUS OF PUBLIC SERVANTS
Keywords: Public servant, political government employees, administrative government employees, restrictions on government employees, general and official laws of government employees, the general and functions of government employees, disciplinary responsibility, disciplinary offense.
Reforming of the Kazakhstan society and state, modernization of government and its integral from a part – public service happens in the conditions of dynamic development of all spheres of life and activity. There is an updating of ideas of prospects and ways of social development and tasks of the state construction, change of an administrative paradigm which has to be adequate to modernization processes. The political tasks which are put forward at the present stage of the state construction and formation of civil society in Kazakhstan are closely connected with the solution of strategic questions of the organization and legal support of uniform system of public service, one of types of which institutionalizes public service. The solution of major problems in achievement of a strategic plan of the purposes of the undertaken reforms, search of new effective mechanisms of realization of functions of public administration impose increased requirements to the organization and functioning of government and strengthening of a social legal status of his personnel case – public servants. In implementation of reforms especially the particularly important becomes pressing need to conduct a theoretical administrative research of current problems of legal support of the status of public servants of the Republic of Kazakhstan. The solution of major problems in achievement of a strategic plan of the purposes of the undertaken reforms, search of new effective 75
mechanisms of realization of functions of public administration impose increased requirements to the organization and functioning of government and strengthening of a social legal status of his personnel case – public servants. According to the Law «About Public Service» public servants the citizens of the Republic of Kazakhstan occupying in the order established by the law the position paid from the republican budget or local budgets or from means of National Bank of Kazakhstan in public authority and the carrying-out powers of office for realization of tasks and function of the state admit. The public servant has the right: ‒ to have the rights and freedoms guaranteed to citizens of the Republic of Kazakhstan by the Constitution and laws of the Republic of Kazakhstan; ‒ on legal and other protection according to the legislation of the Republic of Kazakhstan in case of finishing by it to data of the management of public authority in which he works and (or) to law enforcement agencies about the reliable cases of corruption offenses which have become to him known; ‒ on labor protection, health, working conditions, safe and necessary for effective work; ‒ on social and legal protection; ‒ to participate within the powers of office in consideration of questions and adoption of decisions on them, to demand their execution by appropriate authorities and officials; ‒ to visit in accordance with the established procedure for execution of powers of office of the organization; ‒ to demand from the head of exact definition of tasks and volume of powers of office according to the state position held by the public servant; ‒ on respect of personal advantage, fair and respect for from heads, other officials and citizens; ‒ on stimulation and compensation depending on the state position which he holds, qualities of work, the experience and other bases established by the present Law; ‒ on preparation, retraining and professional development at the expense of means of the corresponding budget and means of National Bank of the Republic of Kazakhstan, etc. 76
Fundamental obligations of public servants 1) to observe the Constitution and the legislation of the Republic of Kazakhstan; 2) to take the oath of the public servant in the order approved by the President of the Republic of Kazakhstan; ‒ to provide observance and protection of the rights, freedoms and legitimate interests of citizens and legal entities, to consider as it should be and the terms established by the legislation of the Republic of Kazakhstan, their address and to take on them necessary measures; ‒ to carry out functions according to the powers of office; ‒ at implementation of powers of office to be impartial and independent of activity of political parties, public and religious associations; ‒ to observe office discipline; ‒ to observe restrictions ‒ The restrictions connected with stay in public service. The public servant has no right: ‒ to be the deputy of representative bodies; ‒ to be engaged in other paid activity, except pedagogical, scientific and other creative activity; ‒ to be engaged in business activity, including to participate in management of the commercial organization, irrespective of its legal form if direct participation in management of the commercial organization doesn't belong to his functions according to the legislation of the Republic of Kazakhstan if other isn't established by the Law of the Republic of Kazakhstan «About fight against corruption; ‒ to be the representative for the third parties in public authority in which he is in the service, or directly to him subordinated or under control; ‒ to use in not office purposes of means of material, financial and information support of his office activity, other state property and office information The public servant can't hold the state position which is in direct subordination of the position held by his close relatives (parents (parent), children, adoptive parents (adopters) adopted (adopted), full and not full brothers and sisters, grandfathers, grandmothers, grandsons) 77
or the spouse (spouse) except for the cases provided by the legislation of the Republic of Kazakhstan. The case «A» – administrative state positions of administrative level for which are provided a special order of selection in a personnel pool, competitive selection, passing and the termination of public service and also special qualification requirements. The case «B» – the administrative state positions which aren't included in the case «A». Positions belong to political: a) appointed by the President and their deputies; b) the appointed and elected Chambers of Parliament and chairmen of chambers of Parliament, and their deputies; c) RK heading the office of the Supreme Court their deputies; d) the being representatives of the President and the Government according to the Constitution; e) heading (heads) the central executive bodies and departments, and their deputies. That is those persons whose activity carries the political defining character and who bear responsibility for realization of the political ideas and tasks. Administrative government employees are subdivided into categories. The register of positions provides groups of categories A, B, C, D, E. Positions of Presidential Administration enter into group A of category: in group B – positions of the office of chambers of Parliament, Office of the Prime minister, the office of the Supreme Court, the office of the Constitutional Council and the Administration of the President in group C – positions of the state agencies which are directly subordinated and accountable to the President, the central executive bodies, departments and regional territorial authorities; in group D – positions of devices of Akims of areas, areas, in also courts of areas, areas; in group E – positions of local executive bodies. The register is approved by the President of the country on representation of the Agency on affairs of public service. 78
Legal status is understood as a circle of the rights and duties of the public servants regulated by the legislation. Administrative legal status of public servants represents the elaborate complex institute consisting in the basis of set of the elements forming it: duties and rights, restrictions and guarantees, encouragement and responsibility. On the structure legal status of public servants is displayed on two types of elements: the status forming and the status organizing. Administrative public servants are concentrated on implementation of tasks and functions of the state on the administration of society. Participation of various categories of public servants in this process variously, but generally by function it is possible to mark out definitely fundamental difference between three of their main types. In a general view functional features of government employees are characterized by the fact that: – the professional activity paid with budget funds of appropriate level is subordinated to achievement of the public interests, the purposes, tasks and functions established for the appropriate public authority and has official character; – official duties and the rights are established, as a rule, within competence of public authorities for implementation of competence of a certain sphere of public administration; – are allocated with the office rights for implementation of official duties; – implementation of office powers is guaranteed by the state; – the all-civil rights are limited in public interests and for effective implementation of office activity; – a certain encouragement, privileges and compensations and also features of legal responsibility which are characterized by special structures of offenses and order of attraction on them are provided; – the special order of receipt and passing of civil service is regulated. Revenues to civil service. Are defined by the legislation of RK a reception order on civil service, passing of a trial period, feature of conditions of civil service, an order of carrying out certification of employees, assignment of cool ranks and many other questions. The following requirements are imposed to the persons arriving on civil service: 79
– to have nationality of RK; – not to be younger than 18 years; – to possess necessary education, professional standard and to correspond to the established qualification indicators. At revenues to civil service the citizen is obliged to present to bodies of tax administration of the data on receiving to them income and property. The specified data are an office secret of bodies of tax administration. Occupation political and administrative state positions are carried out after passing of obligatory special check. The citizen can't be accepted and be on civil service in cases: – recognition by his incapacitated; – the right deprived by court to hold the state positions during a certain term; – existence of the confirmed conclusion of medical institution of the disease interfering execution of functions by him; – within two years before revenues to civil service it was brought to disciplinary responsibility for commission of corruption offense; – within a year it was imposed in a judicial proceeding to an administrative penalty for deliberate offense; – having criminal record; – close relationship with government employees (parents, brothers sisters, the spouse) if their service is connected with direct subordination of a position. Organizational and legal ways of revenues to a gossulzhba are established: appointment, election and competition. Revenues to civil service of political government employees are carried out on the basis of appointment, or election. So, the President with the consent of Parliament appoints the Prime minister, members of the government to a position; The Prime minister makes to the President offers on candidates for appointment to the post of the Chief of staff of the Government, the minister, Akim of areas, republican value, etc. The right revenues to administrative civil service is carried out on a competitive basis, can be also carried out without competitive selection as transfer to a vacant post. 80
A competition on occupation of an administrative position is held by public authority, or according to the decision of the President of Kazakhstan authorized body for civil service after consideration of reservists on the corresponding categories of positions. When holding a competition by the central state agencies and their divisions and departments, announcements are published in the periodic printing editions distributed across all territory of Kazakhstan. The announcement has to contain the following data: The name of state agency with the indication of his location, the postal address, phone numbers and faxes; the name of a vacant post with designation of functional duties; main requirements to participants of a competition; documents acceptance term; terms and venue of testing, terms and venue of an interview. The public authority which has announced a competition forms the contest committee. The structure of the commission is approved by the head of appropriate authority. The contest committee is collegial body which considers documents of participants, results of their testing, conducts interviews with candidates and carries out final selection of candidates for occupation of vacancies. The participants of a competition who have received the positive decision have the right for occupation of an administrative position. Participants can be enlisted in personnel a reserve. They can within a year from the moment of passing of a competition hold an administrative position without passing of a competition. For the citizen for the first time accepted to an administrative position the trial period to 3 months is established. The term of test has expired, the administrative government employee continues civil service, he is considered passed test and the term of test is set off in an experience of civil service. At registration of arrival of citizens on civil service by public authority requirements of the legislation on civil service, fight about corruption have to be provided. After execution of all procedures of employment to the government employee the official ID is issued. Important question is as well movement of the government employee on service. Movement of employees can be made: – to a higher position for advance of the worker on service; – to an equivalent position, for example, in need of replacement of other position or for more expedient use of the employee 81
taking into account his data, personal qualities and vocational training; – to a subordinate position, it occurs at staff reduction, on standing of health, at a personal request, by results of the carriedout certification; – at revenues to study with release from a post and also at appointment to the post after the end of study. Movement of the government employee always it has to be made out by the order of the corresponding head with the indication of the basis of movement. Passing of public service in the Republic of Kazakhstan. Appointment to positions and release from positions of employees of public authority are carried out by the person (body) having such right according to powers of office or the other person (body) to whom these powers are delegated. In the central executive body appointment to positions and release from positions of employees of the central executive body, except for workers whose questions of the labor relations according to acts are referred to competence of higher public authorities and officials are carried out according to the legislation of the Republic of Kazakhstan the responsible secretary of the central executive body or the official to whom powers of the responsible secretary of the central executive body are in accordance with the established procedure assigned, and in cases of absence of the responsible secretary or the specified official – the head of the central executive body. The responsible secretary of the central executive body or the official to who powers of the responsible secretary are in accordance with the established procedure assigned: ‒ in coordination with the head of the central executive body appoints to positions and dismisses directors of departments and chiefs of the independent managements of the central executive body which are under authority of the head of the central executive body or its deputies; ‒ in coordination with the head of the central executive body appoints to positions and dismisses heads of regional territorial authorities and divisions, except for workers whose questions of the labor relations according to acts are referred to competence of higher public authorities and officials; 82
‒ appoints to positions and dismisses deputy heads of regional territorial authorities and divisions, except for workers whose questions of the labor relations according to acts are referred to competence of higher public authorities and officials; ‒ appoints deputies the heads of departments presented for appointment as heads of departments except for workers whose questions of the labor relations according to acts are referred to competence of higher public authorities and officials; ‒ coordinates appointment as the head of the central executive body of deputy heads of the departments represented for appointment as heads of departments in the cases provided by acts; ‒ appoints to positions and dismisses employees of the central executive body, except for the officials specified in the paragraph the second a part of the third of the present point and also workers whose questions of the labor relations according to acts are referred to competence of higher public authorities and officials. Occupation of administrative state positions of the case «B» the deputies of Parliament, deputies of Maslikhat working at a constant basis the political public servants, judges who have stopped the powers except for stopped them for negative motives, carrying out the powers not less than six months and conforming to the imposed qualification requirements, is carried out of competitive selection within one year from the date of the termination of the powers by them. In case of office need during creation of public authority acceptance for work of persons for the term of no more than three months for temporary fulfillment of duties provided by a vacant administrative state post is allowed. During this term which can't be prolonged the specified positions have to be held in the order established by the legislation of the Republic of Kazakhstan on public service. Employment for temporary fulfillment of duties, provided by a vacant administrative state post of the case «A», is carried out from among the persons enlisted in a personnel pool of administrative public service of the case «A». The number of the employed persons for temporary fulfillment of duties shouldn't exceed twenty percent of the number of staff of public authority. 83
The labor relations with such persons who aren't public servants, and the public authority which has employed them it is temporary, are regulated by the labor legislation of the Republic of Kazakhstan. The size of the salary of these persons can't exceed the top extreme size of the salary provided for this position by the legislation of the Republic of Kazakhstan on public service. The size of the salary of these persons can't exceed the top extreme size of the salary provided for this position by the legislation of the Republic of Kazakhstan on public service. At appointment of the person to an administrative state position of the case «A» the employment contract for a period of four years is signed with him if other term isn't established by laws of the Republic of Kazakhstan, with a possibility of its extension for the specified term no more once. In cases of occupation of temporarily vacant administrative state post of the case «A» the employment contract is signed for temporary absence of the administrative public servant of the case «A» holding this position. The employment contract with administrative public servants of the case «A» consists the person (body) having the right of appointment to the post and dismissal. The employment contract with the administrative public servants of the case «A» appointed by the President of the Republic of Kazakhstan consists the Head of Administration of the President of the Republic of Kazakhstan if other isn't established by the President of the Republic of Kazakhstan. The employment contract with the administrative public servants of the case «A» appointed by the Prime minister of the Republic of Kazakhstan consists the Head of Office of the Prime minister of the Republic of Kazakhstan if other isn't established by the Prime minister of the Republic of Kazakhstan. The solution of a question of extension of the labor relations with responsible secretaries of the central executive bodies is carried out by the President of the Republic of Kazakhstan. At registration of arrival of citizens on public service by the public authority provides observance of requirements of the legislation of the Republic of Kazakhstan on public service and fight against corruption. Revenues to administrative and political public service of the persons having military or special ranks as posting from other public 84
authorities are carried out according to acts of the Republic of Kazakhstan. On all public servants services of human resource management (HR departments) create the track record. The form of the track record is approved by authorized body for public service. Official IDs in the order established by public authority are given by the public servant. Promotion of administrative public servants of the case «In B is carried out taking into account their qualification, abilities, merits, conscientious execution of official duties and also results of their activity at the last position. Occupation by administrative public servants of the case «A» of administrative state positions of the case «B» as the translation in public authority and from other public authorities is allowed. Occupation of an administrative state position of the case «B» is carried out by administrative public servants of the case «B» as the translation: 1) in public authority, his department, including their territorial divisions and also between them; 2) in the public authorities at a position referred to groups of categories A and B of administrative state positions of the case «B» and also from public authorities from the positions referred to groups of categories A and B in other public authorities; 3) from public authorities in foreign institutions of the Republic of Kazakhstan and back; 4) at a position of assistants and advisers to the first heads of public authorities, press secretaries from other public authorities. The subsequent translation of specified persons in public authority, his department, including their territorial divisions, isn't allowed. Occupation of an administrative state position of the case «B» as the translation is carried out with the consent of authorized body for public service or his territorial division. In case of transfer of the administrative public servant of the case «B» to other administrative state position of the case «B» of the same category in the same structural division of public authority the consent of authorized body for public service or his territorial division isn't required. Within one year from the date of the end of performance of the act of imposing of an administrative penalty on the public servant for commission of corruption offense or in the presence at him not 85
remitted disciplinary punishment for perfect corruption offense occupation of an administrative state position of the case «B» as the translation isn't allowed. The public authority having a vacant administrative state post of the case «B» for coordination of appointment as the translation of the administrative public servant presents to authorized body for public service or his territorial division the following documents: 1) the statement of the administrative public servant on occupation of the corresponding position as the translation; 2) the completed track record certified by service of human resource management (HR department). On the basis of the submitted documents authorized body for public service or his territorial division within five working days accepts one of the following decisions: 1 agrees to appointment; 2 refuses coordination. The bases for refusal in coordination are the discrepancy of the administrative public servant to the imposed qualification requirements, requirements of the legislation of the Republic of Kazakhstan about public service, non-presentation or incomplete submission of documents. In cases of establishment of a trial period the basis for recognition of results of test unsatisfactory is the inability of appropriate performance by the administrative public servant of the functions assigned to him. All facts and also the materials and documents confirming inability of performance of functions by the administrative public servant in writing are fixed and gather service of human resource management (HR department) and are reflected in idea of results of test. The legislation of the Republic of Kazakhstan on public service extends to the administrative public servants passing a trial period. The administrative public servant is considered being in public service from the date specified in the act of his appointment. The administrative public servant studying in the organization of education in the specialty corresponding to a profile of activity of public authority for the solution of the face having the right of appointment to positions and releases from positions of employees of public authority according to requirements of the legislation of the Republic of Kazakhstan is granted an educational leave. 86
At the direction of the administrative public servant the guarantees and compensations provided by the Law at business trips extend to retraining and professional development on the basis of the state order for him. In case of the direction by public authority of the public servant on training within the state order in programs of postgraduate education he is granted a leave non-paid and behind him the place of work (position) remains. The term of training is established in appropriate programs of postgraduate education. The public servant after completion of training carries out not less than three years work in public service if other isn't established by the legislation of the Republic of Kazakhstan. At the same time not less than one year directly after completion of training he carries out work in the public authority which has directed him to training. Condition about working off in public service and in public authority after completion of training and also responsibility of the public servant for non-execution of the obligations are provided in the relevant contract for training. In case of achievement of a retirement age by the public servant by the time of return to public authority after training and also during working off extension of term of his stay in public service according to the Law is allowed. The public authority which has directed the administrative public servant of the case «B» to training in National school of state policy of Academy of public administration at the President of the Republic of Kazakhstan on the basis of the state educational order within three months from the date of completion of training by the administrative public servant takes measures for his appointment to a vacant higher administrative state post of the case «B» in public authority. In the absence of a vacant higher post during the term established in part one of the present point, the public authority takes the above-stated measures to destination within one year from the date of completion of training. In case of refusal the public servant from the offered position he continues work at the position held by him to the direction on training in National school of state policy of Academy of public administration at the President of the Republic of Kazakhstan. 87
Monitoring of passing of public service by the persons who have finished training in state programs of preparation and retraining of public servants on the basis of the state order is carried out by authorized body for public service. In case of the direction of the public servant on a training behind him the place of work (position) and the salary remains. The public servant is granted a leave non-paid and behind them the place of work (position) in case of their appeal on conscription military service according to the legislation of the Republic of Kazakhstan remains. The experience of public service is estimated for political and administrative employees for the purpose of definition of their official salary in the order established by the President of the Republic of Kazakhstan. The experience granting the right to an official salary according to a tariff and qualification grid of compensation joins all the time of stay in public service. For calculation of the length of service granting the right for establishment of an official salary time also joins: 1) passings of active duty by persons non-commissioned officer's and officers, ensigns, warrant officers, the military personnel of extra urgent service in Armed Forces, internal, border troops, governing bodies and parts of civil defense of the Republic of Kazakhstan and the former USSR, in the system of bodies of Committee of national security of the Republic of Kazakhstan and Committee for State Security of the former USSR, in Security service of the President of the Republic of Kazakhstan and Republican guard of the Republic of Kazakhstan, except the persons dismissed for negative motives; 2) services by persons of the commanding structure in the system of law-enforcement bodies, financial police, service in bodies of prosecutor's office, work at a position of the judge and at responsible positions in offices of courts of the Republic of Kazakhstan and the former USSR, at positions of the commanding structure in the former State Investigative Committee of the Republic of Kazakhstan, except the persons dismissed for negative motives; 3) works at the positions granting the right to a long-service bonus in courts, bodies of prosecutor's office, internal affairs, financial police of the Republic of Kazakhstan and the former USSR, in the state 88
security agencies of the former USSR, national security and the former State Investigative Committee of the Republic of Kazakhstan; 4) partially paid child care leave before achievement of age by it one and a half years and an additional holiday non-paid on care of the child before achievement of age of three years and also other types of holidays by him non-paid to the persons who are in public service; 5) works in the system of National bank of the former USSR and National Bank of the Republic of Kazakhstan; 6) works abroad in the direction of public authorities and state organizations if before the direction abroad the employee stayed in public service and within two months from the date of return from abroad, apart from moving time, I have arrived on public service; 7) works on elective and other responsible offices in party, tradeunion and komsomol bodies of the Kazakh SSR and the Republic of Kazakhstan till January 1, 1992; 8) works in the last state organization on senior positions or at positions on the specialties identical to specialties of public service; 9) works at positions of the workers who were carrying out maintenance and providing functioning of public authorities and their devices if these positions are carried to positions of public servants according to the legislation of the Republic of Kazakhstan; 10) works in the international organizations or other states for the direction of public authorities of the Republic of Kazakhstan if the employee to the direction stayed in public service; 11) training at courses in preparation, retraining and professional development of shots with a separation from work and also study abroad in the direction of public authorities and organizations if the employee before receipt stayed in public service and after their termination I have returned on public service; 12) implementation of powers of the deputy of Parliament of the Republic of Kazakhstan and also the deputy of the Maslikhat working at a constant basis; 13) works of persons, temporarily the acting as, provided by a vacant administrative state post, during creation of public authority and also before obtaining results of special check. To employees who within calendar month had a right for increase in an official salary calculation of an official salary taking into account an experience is carried out from the date of origin of such right. 89
The experience of public service is defined by the commission on establishment of seniority which composition is approved by a face (organ) having the right of assignment for positions and releases from positions of employees of public authority. The decision of the commission on establishment of an experience of public service is made out by the protocol. The copy of the protocol is transferred to accounts department. The service of human resource management (HR department) upon the demand of the public servant gives it an extract from the decision of the commission and assures her. The main document for determination of an experience of public service is the service record or the track record. In the absence of the service record, the track record and also in case there is no necessary record or the wrong or inexact records about the operation periods contain, in confirmation of seniority the employment contract, extracts from acts of the employer, an extract from the list of salary payment to workers, extracts from the accumulative pension fund about the listed mandatory pension contributions, data from Public foundation of social insurance on the made social assignments, the archive help containing data on work of the worker are accepted. Confirmation of an experience of public service testimony is carried out in the order set by the legislation of the Republic of Kazakhstan. Cases of change of structure of management, renaming of positions, reduction of the staff of public authority without the actual reduction of number and (or) essential change of working conditions aren't the bases for the termination of public service by administrative public servants. In this case administrative public servants continue work at the positions on the new staff list corresponding (completely or in large part) to working conditions at earlier existing position. The bases of cancellation of the employment contract with administrative public servants of the case «A» and the termination of public service by them are: 1) the expiration of the employment contract, 2) the solution of a face (body) having the right of the appointment to the post and dismissal accepted on the basis of the recommendations of the National commission in the cases established by the legislation of the Republic of Kazakhstan including by results of an interview; considerations of materials of assessment which is carried out by public authorities; disciplinary affairs; 3) other bases provided by the Law. 90
Public authorities place on the Internet-resources information on vacant administrative state positions within three working days from the date of formation of vacancies. Public authorities are developed and approve regulations on service of human resource management (HR department) on the basis of the standard provision on service of the human resource management (HR department) of public authorities approved by authorized body for public service in coordination with Administration of the President of the Republic of Kazakhstan. The public servant has the full volume of constitutional rights of the personality and citizen. All-civil rights and duties of public servants same as well as other citizens. Public servants have all rights and freedoms and also perform duties before society on the royena with all rights and freedoms and also perform duties before society on an equal basis with all citizens. Restrictions of the employee in the rights can take place only the law on public service, in connection with ensuring appropriate performance by employees of the office powers (for example in the sphere of business activity). The public servant has a certain legal status. For him special conditions of revenues to public service passing the termination of service are defined. The public servant realizes the powers and functions conferred to him as interstate administration, and in relation to external legal entities (to citizens and other organizations, etc.). The legal status of the employee who is in public service (in the ministries, the state committees, administration staff of the President, the Government, etc.) differs from a legal status, for example, of the serviceman in character of office powers, content of the rights and duties, the mechanism of attraction to legal responsibility. The legal status of public servants depends also from a condition in which public service proceeds. Therefore features of a legal status of public servants can be defined also by objectively arisen social and political or state situation: for example, introduction of an emergency rule or martial law; announcement of mobilization; other administrative legal regimes set by special laws. In these cases the maintenance of a legal status of the public servant essentially can change: employees can acquire additional powers, the rights; for them special duties and special conditions of service and legal responsibility can be established. 91
One of the important principles of the Kazakhstan public service is the principle of social security. According to this principle, the constitutional rights and freedoms and also other guarantees, general for all citizens of the Republic, such as are provided to public servants, first: the right for remuneration for work, right to rest, the right to safety of working conditions, social security without any discrimination. Secondly, special standards of legal and social security and protection which have received a specification and further development in the Law «About Public Service» and the whole block of the subordinate regulations governing the relations in the sphere of public service, which have taken effect since January 1, 2000 extend to public servants. The concrete rights and duties of public servants following from the legislation on public service are defined on the basis of standard qualification requirements and are reflected in the departmental regulations approved by heads of public authorities. For ensuring stability of stay of administrative public servants in public service, are provided with the law their legal protection from unreasonable dismissals. In him it is written directly down that change of political employees isn't the basis for the termination of service by administrative public servants. Other provision of the law provides a guarantee of employment of administrative government employees by reorganization or liquidation of public authority. According to the Law, in case of elimination or reorganization of public authority of administrative employees in the presence of length of service in public authorities not less than three years are provided employment in again formed or in other public authority in compliance with their qualification, or at the choice of administrative employees he makes payment of a severance pay. The short story of the Law regarding strengthening of legal protection of the public servant are the following norms: at doubts in legitimacy of the order received for execution the public servant has to report about it immediately in writing the] to the direct head and the head who has given the order; in case the head, higher on a position, in writing confirms this order, the public servant is obliged to execute him if performance him doesn't attract actions which belong to penal acts; responsibility for execution by the public servant of the illegal order is born by the head who has confirmed this order. 92
Also the Law has defined guarantees of the rights of public servants when attracting them to disciplinary responsibility: ‒ the public servant is obliged to be acquainted with all materials connected with attraction him to disciplinary responsibility; ‒ actions and decisions of public authority or official body or the official can be appealed by the public servants made responsible in the order determined by authorized body or court; The law provides such measure of social protection as providing public servants with housing in the order established by the legislation. The land plots are free of charge provided for individual housing construction by the public servant needing improvement of living conditions. Besides, the Law provides that for definiteness of office functions public servants have the right: ‒ to demand from the head of exact definition of tasks and volume of office powers according to the position held by the public servant; ‒ on respect of personal advantage, fair and respect for from outside: heads, other officials and citizens; ‒ In addition public servants have as well other rights as: ‒ on stimulation and compensation depending on a position which he holds, qualities, experience and other bases established by the present Law; ‒ on retraining (retraining) and professional development at the expense of means of the corresponding budget; ‒ to get acquainted freely with materials which concern passing of public service by him, in necessary cases to offer personal explanations; ‒ on promotion taking into account qualification of abilities, conscientious execution of the official duties; ‒ to demand office investigation in the presence of groundless, according to the employee, charges; ‒ on labor protection, health, working conditions, safe and necessary for high-performance work; ‒ on social and legal protection; ‒ dismissal from public service at own will; ‒ on pension and social security; 93
‒ on introduction to higher public authorities and officials of suggestions for improvement of public service. The public servant participates in formation of social and political, state and legal and social and economic prerequisites of spheres of management, provide real communication with life of society and the people. The public servant has to know and observe the Constitution of the Republic of Kazakhstan Besides, he is obliged: ‒ to provide observance and protection of the rights, freedoms and legitimate interests of citizens and legal entities, to consider as it should be and the terms established by the legislation, addresses of citizens, to take on them necessary measures; ‒ to carry out power within the rights granted to it and according to functions; ‒ to observe the state and labor discipline; ‒ to assume the restrictions set by the law; ‒ to respect the rules of office ethics established by the legislation ‒ to execute orders and orders of heads, decisions and indications of higher bodies and officials published within their powers ‒ to keep the state secrets and other secret protected by the law including after the termination of public service, during the time determined by the law about what give a subscription; ‒ to keep in secret the data received on duty affecting private life, honor and dignity of citizens and not to demand from them providing such information, except for the cases provided by the legislation; ‒ to ensure safety of state ownership; ‒ to immediately inform the official having the right of their appointment in cases when the private interests of the public servant are crossed or are in a conflict with their powers; ‒ to improve the professional level and skills for effective execution of official duties. Features of a legal status of various categories of employees are caused by the duties assigned to them and character of office powers, specifics of activity of public authorities in which they serve. The special legal status of different types of public servants is established by special regulations, for example: laws of RK «About Prosecutor's Office», etc. 94
The legal status of public servants with change of conditions of passing of public service also changes. For example, promotion confers to the employee additional powers, the rights and duties; also the additional bans and restrictions on service, feature of the procedure of attraction to disciplinary responsibility are set. The concrete duties of public servants following from the fundamental obligations established by the present Law are defined on the basis of standard qualification requirements and are reflected in the duty regulations approved by heads of the appropriate public authorities. Thus, the legislation of the Republic of Kazakhstan considers the interests of public servants, is adequate to opportunities of the state, provides their social and legal protection that is a guarantee of increase in stability and professionalizing of personnel of public service. According to the best international experience, in state bodies there is a strict division of political and administrative and executive activity and also the positions corresponding to them. Practically in all countries with market management I have successfully stood the test of time and as practice has shown, is the most effective and widespread. For the public and objective reasons key parameters of the undertaken economic reforms in Kazakhstan were set from the center and carried out according to the scheme «from top to down». A key problem during creation of effective system of public administration is rationalization of structure of the central executive bodies and streamlining of their activity. The positive solution of this problem will create corresponding conditions for rationalization of Territorial Department and optimum redistribution of function between the central and local executive bodies that is the purpose of the following stage of reforms. Thus passing of public service in the Republic of Kazakhstan consists in creation of the effective system of public administration providing sustainable social and economic development due to effective state regulation. Termination of Civil service. The civil service stops at dismissal of the government employee, including with retirement. The termination of civil service can be carried out according to a personal statement of the government employee on the bases, provided by the law: 95
– filing of application at own will; – achievements of a retirement age by him – the expiration of the contract or cancellation of the contract on the bases; – representation to administrative employees of false data on income and property; – non-compliance with duties – loss of nationality – commission of corruption offenses – negative results. Questions for self-checking: 1. Of what stages there is a process of passing of public service? 2. How revenues to public service are carried out? 3. What types of public servants exist? 4. Call restrictions of the rights of public servants. 5. Call the bases of the termination of public service. The recommended literature: 1. The message of the President of Kazakhstan to the people of Kazakhstan «Kazakhstan in new global reality: growth, reforms, development». – January 17, 2014. 2. Legal problems of reforming of public service of sovereign Kazakhstan: Monograph/group of authors. – Astana: Institute of the legislation of the Republic of Kazakhstan, 2003. 3. Turisbek A.Z. Problems of the theory and practice of public service in the Republic of Kazakhstan. Monograph. – M.: Institute of legal and comparative researches, 2011. – 316 with. 4. Uvarov V.N. Public service and management: textbook. – Petropavlovsk: Sowing. Kaz.yurid. academy, 2004 – 414 p. 5. Kegembayeva Zh.A. Problems of legal responsibility of officials in public administration by the legislation of the Republic of Kazakhstan: Avtoref. yew. edging. юрид. sciences. – Almaty, 2006. – 25 p.
FORMS AND METHODS OF PUBLIC ADMINISTRATION
Keywords: public administration, public authorities, normative legal acts, acceptance, administrative procedures, methods, encouragement, belief, priuzhdeniye.
Forms of public administration differently can be treated as forms of realization of executive power. Are understood activity of state bodies within competence as them and their consequence. To each public authority and its official it is given a certain authority within which it enables the realization of the tasks set for it. This activity is carried out in certain forms, that is actions. These forms are various and appropriately legally issued. The regulation of administrative activity is carried out by administrative precepts of law. Depending on a consequence of a form of public administration share on unlawful and legal. Organizational actions and material operations are considered as unlawful forms of activity of executive power. The main feature consists in what these actions don't involve any legally significant a consequence. Most often such organizational actions as holding meetings, discussions, checks, distribution of the best practices, development of forecasts, programs, methodical recommendations, implementation of accounting and statistical account, the organization of demonstrations, press conferences, meetings with labor collectives, representatives of public associations meet. Performance of material operations is connected with office-work (registration, registration, reproduction, mailing of documents), information processing (calculations, preparation of data for machining), various measurements. Actions of the employees of militia bringing to medical institutions of 97
the persons needing emergency aid, executing resolutions on administrative detention also belong to material (protection, catering services, etc.) Actions application of which belong to legal forms involves emergence of these or those legal consequences. Carry to legal forms: 1. Adoption of the normative legal act. 2. adoption of individual acts of management. 3. conclusion of administrative contracts. Legal acts of management – the main form of activity of executive authorities through which they realize the tasks and functions. Legal acts of management are issued only by the governing bodies (officials) authorized on that, this legally imperious instruction accepted at the initiative of the state and contains legally imperious instruction, nonexecution or inadequate execution of which involves application of coercive measures. Adoption of the legal act always attracts emergence, change or the termination public the relation. By means of legal acts of management of both standard, and individual character the competence of bodies of executive power of a legal form is implemented. The subordinate, official decision made by executive authority in a unilateral and imperious order and with observance of the established procedure on this or that question referred to his competence, given the shape provided by the law and generating legal consequences is recognized as the act of management. The sublegality of the act of executive power means that its validity is lower, than the law as he is accepted on a basis and according to current laws, has to correspond according to contents, a form and an order of the edition to the established requirements. For example, Art. 115 of the Constitution defines that the Government issues resolutions and orders on a basis and in pursuance of the Constitution, federal laws, regulations of the President. The officiality of the act of executive power consists that the decision is accepted by bodies or officials not on its own behalf, and on behalf of the state. In all cases the will expressed in acts of management is state. They are published in the course of realization of the government, state and imperious powers. From here – domineering character of the act of management, obligation of the instructions which are contained in him. Non-execution or inadequate execution of these requirements attracts the corresponding legal responsibility. 98
From the point of view of contents, the act of executive power is the administrative decision concerning tasks and functions of executive and administrative activity. Subjects of management adopt such acts in the course of the daily and direct management of economic, welfare and administrative and political spheres. Only legal acts of management, namely acts which publication attracts legal consequences in the form of establishment (change, cancellation) precepts of law or establishment (change, the termination) concrete legal relationship in the sphere of executive power are among the considered acts. The difference legal from unlawful forms of implementation of executive power (organizational actions and material operations) consists in it. Acts of executive power are issued by her subjects and express their unilateral and imperious decisions, differing, thus, for example, from the contracts which are result of the agreement of the parties of legal relationship. Unilateral actions express will of only one party – executive authority. This will extends, naturally, only on subordinated, subordinated or under control (persons under surveillance) to this governing body objects. The authoritativeness moment is expressed in acts of management most that finds reflection in such terms how «to oblige», «forbid», «I order», etc. Acts of executive power differ from other legal documents both on external design, and according to the name and the procedure of acceptance. They are accepted only concerning executive and administrative activity and only within the corresponding competence. They are published, as a rule, as the written document. However also the oral option, for example in the form of teams in the system of the military of management is possible. In certain cases the conventional signs, images, for example, forbidding traffic or warning about any threat of technogenic character are used. The normative legal act is the written official document, the established form accepted on a referendum or the official authorized on that, establishing precepts of law, changing, stopping or stopping their action. The law «About Normative Legal Acts» of March 24, 1998 regulates requirements imposed to the NPA the procedure of their acceptance, entry into force, cancellation and also the system of normative legal acts. 99
Normative legal acts have the characteristic, distinctive features, namely: 1. Have no specific addressee, namely a wide range of subjects. They aren't personified. These acts have republican, regional, branch, regional value. 2. Fix certain rules of conduct in the sphere of public administration, for example, of the rule of calculation of taxes, customs tariffs, traffic regulations, etc. 3. These are acts of prolonged use. As a rule in them the term of their application isn't concretized. They stop the action after application of new regulations, or after cancellation. 4. Regulations are adopted for realization by state bodies of the of function. They concretize standards of the highest validity, define the status of links of executive bodies, natural and legal entities. Individual acts are other than standard and have the nature, differences: 1. These are right executive acts, they provide direct implementation of regulations in concrete cases, situations. Individual acts have to correspond to regulations, otherwise the first will be recognized illegal and aren't subject to execution. 2. They don't contain in difference from standard any obligatory rules. They are accepted for the solution of the current individual affairs. These are always the administrative acts expressing legal and imperious wills of executive authorities. 3. These are the personified acts, the addressee, that is the particular natural or legal entity is surely specified in them. Acts of public administration have to conform to certain requirements. Namely, they shouldn't contradict the Constitution, the current legislation and acts of the President. Are published by officials only within their power. The purposes, the bases and legal consequences of the publication of these acts have to be accurately reflected in the act. Need of existence of certain requisites, that is names of state agency, the body, the coat of arms, the press, a stamp, the signature, etc. belongs to technical requirements. In the order of acceptance acts of public administration share on joint and edinonachalny. Joint acts are applied are accepted by collegial bodies, for example the Government or the commissions, way of vote. These acts come into force after signing by their heads of data of bodies. 100
Individual acts come into force after signing of those by the official adopting the act. The Ministry of Justice of RK is obliged to carry out legal expertize of normative legal acts and also to register them with assignment of serial number. Acts are subject to obligatory registration: the limiting rights and freedoms of citizens and interdepartmental contracts. Acts in which certain requirements to registration, an order of acceptance of entry into force aren't observed or recognized insignificant are invalid. Cancellation of these acts occurs in case of their cancellation: cancellation in case of expiration of the act, new edition of the act, acceptance on the matter of the new act. The following source of administrative law, and also the act of public administration is the administrative legal instrument. The administrative legal instrument is the type of the legal contract representing the agreement of two or more parties concluded in the sphere of public administration. As well as all acts of public administration administrative contracts are adopted in the course of activity of executive authorities, that is the contract one of the participant of which is recognized as administrative the executive authorities are. They are accepted as a rule for the benefit of public administration, for realization of national objectives and function. But as the administrative act, the administrative contract has the feature, namely domineering character. The state dictates terms of the contract, can change them in the course of realization the term of the contract. The second party has the right to sign or not to sign the contract only. The administrative contract has to conform to requirements imposed to acts of public administration. Interdepartmental contracts are subject to obligatory examination and registration in Ministry of Justice. Types of administrative contracts: 1. Interdepartmental contracts. 2. Contracts according to the section power. 3. Contracts on study. 101
4. The contracts signed with public servants or the contract military personnel. 5. Leases or privatizations of the state property. 6. Contracts on government procurement. 7. Contracts on rendering of services and another. Administrative contracts are the type of the act which has gained distribution only in the recent past. And recognition him in general diskussionno. But to deny existence contractual, conciliatory the relation in modern public administration it is impossible. Some suggest to call them administrative and legal agreements. Methods of public administration. Unlike forms methods of public administration are understood as ways and methods of influence on operated, that is implementation of tasks and function of executive power. Administrative and legal methods include methods of the operating influence (external expression) is a direct influence, management and regulation of activity, behavior of the operated object (natural and legal entities). Methods of the organization of work of management personnel (internal expression) have intra hardware value – the organization of activity of internal structures and also all system of governing bodies in general. Besides, methods of a state administration can be classified on administrative and economic. Economic methods influence behavior controlled through their economic interests, for example, rising or understating of tariff customs rates, makes impact on import or export of goods. In this case the state only stimulates activity, the rest depends on economic interest. In addition there is a possibility of adjustment through probability of use economic sanctions, for example deprivations of the license, a penalty etc. It also stimulates activity according to the current legislation. The administrative method of public administration consists of belief and coercion, that is this noneconomic, direct influence is immediate on object of management. The method of belief has to be the main method of activity of executive authorities that assumes systematic work on belief of masses, formation of public consciousness in need of due behavior of 102
participants of the administrative public relations, strict observance by them of the rules established by the state. The explanation is more whole than the state, drafts of laws, the government programs held by the power of events, etc. it is necessary because they infringe on the interests of most of citizens and have to them be clear. The belief acts and as prophylactic of offenses and strengthening of the state discipline. Among measures of belief there are an explanation, justification, discussion, suggestion, encouragement, display of positive objects of management and many other things, described and realized in concepts and procedures of social psychology and pedagogics. The belief, is conventional it is considered the most effective method and consists in impact on behavior through consciousness of controlled. Besides, a separate method is encouragement, that is stimulation which is sectioned on material (the raised grants, awards, valuable presents) and moral (ranks, awards, medals, certificates of honor, badges etc) Coercion is a method which has to come into force in case of inefficiency of belief. Coercion this corrective action on controlled through its immediate interests (material or immediate impact on the person). It is under duress considered to be auxiliary measures the representing complex of coercive measures and legal responsibility. Coercion, per se shares on legal and unlawful. Legal coercion is the measures directly provided by the legislation, an order and the bases of their use are also regulated by special precepts of law. Unlawful coercion is the measures forbidden to use. For example, it is possible to carry to it mob killings, criminal bureaucracy, tortures with use of violence, use of the forbidden special agents (an electroshock, nervously-paralytic gases, etc.). Respectively, only legal coercion belongs to methods of public administration. Proceeding from the application basis legal coercion is subdivided on criminal, administrative and disciplinary. Respectively, all these measures are applied at certain offenses, namely criminal liability at commission of crime, civil at violation of the civil contract and causing material damage, and disciplinary follows at violation of internal discipline and an order. 103
Questions for self-checking: 1. What types of forms of public administration do you know? 2. In what an entity of legal and unlawful forms of public administration? 3. Classify legal acts of control by different bases. 4. What is the normative legal act of control? 5. What types of normative legal acts of control do you know? 6. What is the personal and legal act of control? 7. What requirements are imposed to legal acts of control? The recommended literature: 1. The message of the President of Kazakhstan to the people of Kazakhstan «Kazakhstan in new global reality: growth, reforms, development». – January 17, 2014. 2. Legal problems of reforming of public service of sovereign Kazakhstan: Monograph/group of authors. – Astana: Institute of the legislation of the Republic of Kazakhstan, 2003. 3. Turisbek A.Z. Problems of the theory and practice of public service in the Republic of Kazakhstan. Monograph. – M.: Institute of legal and comparative researches, 2011. – 316 with. 4. Uvarov V.N. Public service and control: textbook. – Petropavlovsk: Sowing. Kaz.yurid. academy, 2004. – 414 p. 5. Kegembayeva Zh.A. Problems of legal responsibility of officials in public administration by the legislation of the Republic of Kazakhstan: Avtoref. yew. band. юрид. sciences. – Almaty, 2006. – 25 p. Normative legal acts 1. The law of the Republic of Kazakhstan of March 24, 1998 No. 213-I «About regulations» (with changes and additions as of 17.11.2015. 2. The law of the Republic of Kazakhstan of November 27, 2000 No. 107-II «About administrative procedures» (with changes and additions as of 06.04.2016).
Keywords: Administrative coercion, is administrative – precautionary measures, measures of administrative suppression, a measure of compensation of the caused damage, punitive and precautionary measures.
Administrative coercion is an auxiliary method of implementation of executive power, is combined with belief and applied when the belief appears insufficiently for achievement of the goal, put before executive authority or its official. Administrative coercion is designed to ensure compliance with the rules of conduct set out in administrative law. For their application, extrajudicial procedure is characteristic, that is, their application is entrusted to those executive bodies (officials) who are endowed with special powers (for example, the bodies of internal affairs, control and supervisory bodies, etc.) . Administrative coercion as a form of state coercion is an impact on the consciousness and behavior of subjects with the aim of compelling them, by threatening to apply the administrative sanctions provided for in legislation, to proper behavior, obeying the established prohibitions and restrictions, as well as applying administrative measures accompanied by negative consequences of personal, Organizational, material nature. Administrative coercion in turn on the grounds and purposes of use is divided into measures of prevention, suppression and responsibility. Measures of administrative prevention are used to prevent the very possibility of committing an offense (crime, administrative misdemeanor, etc.), and another event that could lead to negative consequences for society and the individual (epidemics, accidents, etc.). 105
Such measures as the introduction of quarantine, verification of documents, the suspension of traffic, temporary closure of the state border, suspension from work and a number of others are measures of administrative prevention and are of a preventive nature. Also to the number of administrative and preventive measures include: closing sections of the border (for example, when epidemics occur); Obligatory medical inspection of persons and sanitary condition of enterprises of public catering; The closure of certain sections of the road or street for traffic if there is a threat of traffic safety (for example, the threat of mountain landslides, landslides of houses); Administrative supervision of the militia for persons released from places of deprivation of liberty; Inspection of things and personal inspection of passengers of civil aircraft; Verification of identity documents; Technical inspection of vehicles. The preventive measures, in turn, are aimed at stopping the already committed unlawful action and preventing its harmful consequences. The goal is not to let the offense that has already begun be brought to an end. Scientists – administrators subdivide these measures into three blocks: general, special and procedural. Such measures include, for example, administrative detention of a person for drawing up a protocol on an administrative offense or establishing his identity; drive unit; Delivery to the medical institution or to the police on duty; Compulsory treatment of persons suffering from diseases dangerous to others; The requirement to stop illegal actions; Direct physical impact; The use of special means (rubber sticks, tear gas, handcuffs, water cannons, etc.) to suppress mass disorders and group actions that disrupt the work of transport, communications, enterprises and institutions; The use of weapons in special cases; Temporary removal of infectious patients from work; Prohibition of the operation of vehicles whose technical condition does not meet the established requirements, etc. The general include compulsory treatment and administrative supervision of persons who have come from places of deprivation of liberty. Special measures include direct or physical effects, that is, the use of physical force, special means and firearms. Procedural measures are used to ensure the implementation of procedural actions, they include 106
the drive, detention, delivery, personal search, inspection of transport, baggage, etc. Legislation regulates the grounds, timing and procedure for the application of these measures. However, it is in this branch of legislation that there is the greatest number of gaps and problems. Most of these acts are departmental instructions of state bodies used for internal use, that is, closed to a wide range of audiences. What sometimes leads to gross violations of the law in the field of protection of human rights and freedoms, as these measures are aimed at direct impact, including physical. Measures of administrative responsibility is a type of legal responsibility, which is called administrative. They are applied for administrative offenses. Questions for self-control: 1. Give the definition of administrative coercion? 2. What is the purpose of applying administrative coercion? 3. Expand types of administrative warning measures? Give examples. 4. Expand types of administrative restraint measures? Give examples. Recommended reading: 1. Zhetpisbaev B.A. Administrative coercion. – A., 2002. 2. Taranov A.A. Administrative Law of the Republic of Kazakhstan: Academic Course. – A., 2003. – 256 p. 3. Zhatkanbaeva A.E. Legislation on administrative responsibility in the Republic of Kazakhstan. – A., 2010. – 102 p. 4. System of measures of administrative and legal coercion [Text]: monograph / B.A. Zhetpisbayev. – Almaty: HAS, 2005. – 183 p. Regulations 1. The Code of the Republic of Kazakhstan on Administrative Violations of July 5, 2014 No. 235-V (as amended and supplemented as of July 26, 2016) 2. The Code of the Republic of Kazakhstan of September 18, 2009 No. 193-IV «On the health of the people and the health care system» (with amendments and additions as of April 21, 2016)
Keywords: Administrative responsibility, administrative offense, the composition of an administrative offense, administrative penalty, proceedings in cases of administrative violations, Code of Administrative Offenses.
Administrative responsibility is the institution of administrative law and the type of legal responsibility regulated by the relevant legislation, that is, the system of legal acts that examine the grounds and the procedure for applying administrative penalties. The Constitution of the Republic of Kazakhstan plays a decisive role in the legal bases of administrative responsibility. This function is carried out through the disclosure of constitutional ideas defining the objects of constitutional protection and the methods of its implementation in the current legislation. One of the main constitutional ideas is the idea of a person, his life, rights and freedoms as the highest value. One of the key objects of the protection of the Code of Administrative Offenses is human rights and freedoms. Thus, the separate chapters devoted to the protection of individual rights (Chapter 10), the rights infringing the electoral rights of citizens – the main political rights (Chapter 11), are separately singled out as separate object of the right of minors (chapter 12). In addition, certain articles regulate the protection of other citizens' rights, their property and tranquility. The consolidation of human rights and freedoms in the Republic of Kazakhstan at the constitutional legal level creates optimal conditions for studying the problems of the relationship between the Constitution and the institution of administrative responsibility as interrelated and interdependent institutions. It raises the need to analyze the legal meaning and content of the Constitution in the social and legal life of Kazakhstan as the main regulator of social relations in matters 108
of ensuring human and civil rights and freedoms that arise on the basis of the practice of applying the measures of the institution of administrative responsibility by public authorities [3, art.41] . Any state denotes the limits of the restriction of rights and freedoms, since they can not be unlimited. Freedom of man ends where the freedom of another person begins, says the basic principle of law. According to this principle, the circumstances within which human rights and freedoms are limited are determined. In accordance with the current administrative law, the circumstances within which a state may be restricted by human rights and freedoms are administrative offenses committed by them as unlawful, guilty actions or inaction of a natural or legal person for which administrative liability is foreseen. In theory and practice, the relationship between state power and the individual in the sphere of rights and freedoms should be regulated only by laws. The explanation for this is that the law is the normative formula of human rights. Therefore, human rights and freedoms can be limited only by law. For example, if a person is restricted in the case of abuse of narcotic substances or alcohol, the goal is to protect not only the interests of family members, but also the health and property interests of the citizen himself; When applying preventive measures against the accused, the goal is to ensure the implementation of legal liability. The main normative legal act in the field of administrative responsibility is the Code of the Republic of Kazakhstan on Administrative Offenses of July 5, 2014. The specificity of the code is that it fixes the basic concepts of the institution of administrative responsibility and specific types of offenses. The code consists of a general and a special part. The general part is fixed by the concept, principles of administrative responsibility, the circle of subjects and measures of administrative punishment. The special part is devoted to specific types of offenses and each separately taken sphere, and also regulates the issues of proceedings in cases of administrative offenses and the competence of bodies vested with administrative jurisdiction. This code is the second codified act in this area. The first was adopted on March 22, 1984 and played a certain positive role, as it united a lot of fragmented normative acts providing for administrative responsibility during that period. The legislator was faced with the issue of adopting a new Code, for which a special commission was set up, which in various forms worked for more than eight years, during which seven drafts of the code were created. 109
The next kind of legal acts regulating administrative responsebility are laws. In accordance with Art. 1 of the Administrative Code of the Republic of Kazakhstan laws that provide for administrative liability are applicable only after they are included in this code. Most often these laws regulate relations protected by the code, for example, the Law on Fire Safety of November 22, 1996 or the President's decree having the force of the Law «On the Legal Status of Foreign Citizens in the Republic of Kazakhstan» and others. A number of laws are devoted to the procedure for the application of certain coercive measures noted in the Code, for example, the Rules of the Road. An integral part of the legislation on administrative liability is the regulatory decisions of the Constitutional Council and the Supreme Court of the Republic of Kazakhstan regulating administratively tort relations. Within the limits of their competence, the abovementioned bodies specify or interpret the norms of the Constitution, the Code and other acts for their common understanding and application by the relevant authorities throughout the territory of Kazakhstan. The procedure for implementing the norms fixed in the Code and other laws is regulated by a number of subordinate regulations. These include acts of central and local executive bodies, namely instructions, directives and regulations. Responsibility for administrative offenses comes on the basis of legislation in force at the time and place of committing an administrative offense, while acts mitigating or canceling liability for administrative offenses are retroactive, that is, they apply to offenses committed before the issuance of these acts. Administrative responsibility is a special kind of legal responsebility. Among its specific features can be identified the following: administrative responsibility is imposed for offenses that do not represent a high degree of public danger. As a result, the punitive sanctions of the state for such unlawful acts are referred to as administrative misdemeanors (offenses), in contrast to them, crimes represent an incommensurably higher degree of danger for public and private-law interests; Responsibility for administrative law is always a consequence of the unlawful act (omission) of a legal or natural person. In the emerging legal relations, subjects of the public and legal sphere (areas of state interests) – executive bodies and officials vested with it, are always involved. All types of legal responsibility are 110
imposed by the state bodies (officials), however, one of the participants in an administrative legal relationship is always an executive body or an executive and administrative body of local self-government (municipal authority); Administrative responsibility is primarily due to offenses in the sphere of nation-wide, rather than private-law interests. State security is divided into national, economic, environmental, information, etc. As a result, administrative violations in these areas primarily infringe upon the public legal interests of the state. The dominant beginning of sanctions for administrative misconduct is damage in the sphere of state security. Administrative sanctions as a form of state coercion are inherent in any form of state structure and develop depending on the evolution of the state from one socio-economic formation to another. Administrative responsibility as a form of sanctions in the public legal sphere has its development even in ancient law. The category of Roman law administratio («management») was mainly related to the regulation of property relations. However, Roman law used administrative and legal concepts that were developed in many national systems, including domestic law, including the Code of Administrative Offenses. For example, one of the meanings of the word noxia is an unlawful act that led to damage. In Roman law, the institution of sanctions for an offense was also developed, including an administrative one, for example exactio (from exigere – to demand, to exact) (recovery through court). Many of the administrative penalties in the law in force were retrieved from Roman law. The category confiscatio meant a gratuitous seizure of property, but sometimes the word confiscatio was used not in the sense of sanction for an unlawful act, but in the sense identical to the concept requisitio – sanction, according to which the property of the hiding accused came into the state's income. However, in the current Code of Administrative Offenses, the category «requisition» is not used in the sense of sanction for administrative misconduct; this concept is inherent in domestic civil law. Administrative liability is a type of legal responsibility that implements administrative penalties for administrative offenses by an authorized state body or official in the manner prescribed by administrative law, the enforcement of which can be provided by a compulsory force of state power. Administrative responsibility is imposed 111
on persons who reached the age of 16 when they committed the offense. Persons aged between 16 and 18 who committed administrative offenses are subject to the measures provided for in the Regulations on Commissions for Minors. The most important function, one of the functions of administrative responsibility is its preventive function, which encourages legal entities and individuals to comply with the law. At the heart of this is the moral impact on the subject of a legal relationship preventing a wrongful act. The prevention of illegal inactivity should also be considered as a moral action, the purpose of which is to create the necessary ethical prerequisites capable of preventing a violation of the administrative and legal norm. Given the prevalence of administrative offenses in contrast to crimes, it should be recognized that the use of preventive methods of influence is most effective. The alternative function of responsibility under administrative law is manifested primarily in the public interest. Any state is objectively interested in the legal regulation of special punitive methods that are not associated with application to citizens (subjects) and legal entities of special measures of physical or mental coercion inherent in criminal prosecution. No less important than the above, the restrictive function of administrative and legal responsibility. In many cases, the purpose of imposing administrative sanctions is to create, the prerequisites for limiting the consequences of the harm of a possible offense. These include some of the administrative penalties, for example, all three types of deprivation of special rights, administrative arrest, administrative expulsion. However, unlike the above functions, the use of the constraint function is not always effective. Thus, an oral warning or certain types of administrative fines do not always help limit the relapse of committing administrative misconduct. The human rights function are concluded in the creation of a special legal mechanism capable of protecting the private-law interests of citizens from the arbitrary arbitrariness of state bodies Administrative penalties are understood as measures of state influence, applied on the basis of legislation, by authorized state bodies or officials in relation to a person who committed an administrative offense. 112
Administrative penalties are expressed, as a rule, either in moral or in material effect on the offender. Some administrative penalties combine at the same time moral condemnation, and material impact, and temporary restriction of the rights of the offender (for example, administrative arrest, deprivation of special rights, correctional labor, etc.). The use of administrative penalties increases in a state of emergency. This is due to the need to quickly eliminate the threat to the security of citizens, Restoration of normal conditions for the life of the population and law and order. Legislation on the state of emergency gives the state bodies that exercise control under these conditions extraordinary powers [1, art.79]. The main goal of any law enforcement activity is the strengthening of law and order in public relations and the country. It is for this purpose that a legal case is considered and a state decision is made, in this case administrative sanctions. The application of a legal sanction has three objectives: 1. Education of a person who committed an offense in the spirit of observance of laws and respect for the rule of law 2. Prevention of the commission of new offenses, that is, private preventive. 3. Prevention of the commission of offenses by others, that is, general warning. These goals are inherent and characteristic of all legal measures. Between responsibility. Meanwhile, for all the importance of the rehabilitation goal, the main significance of the application of administrative sanctions is the protective function. The very existence of punishment for certain acts often leads to the fact that a person tries not to commit them for fear of negative consequences Penalties differ from other means of administrative coercion in that, usually, their use creates for violators a «state of illegality» that exists during the period established by law and is one of the elements of correctional and educational influence on them. In the literature, individual authors argue that procedural norms can hardly be considered a source of enforcement along with material norms. 113
The peculiarity of law enforcement in administrative law lies in the fact that material norms are realized within those limits (conditions, terms) by non-participation of certain subjects that are provided for by procedural norms. Such a systemic state is created with the help of a material and procedural regime, when, for example, even classical forms of social deviation (violation) can be identified during production. The Code of the Republic of Kazakhstan on Administrative Offenses provides for 10 types of administrative penalties that constitute a single system, taking into account the grounds, purposes and the possibility of their interchangeability. Administrative measures of collection are subdivided by the legislator into basic and additional. The main measures of recovery are measures that can be imposed independently. Article 46 of the Code of Administrative Offenses treats the main ones as a warning, penalty and administrative arrest. Additional measures are measures that can not be assigned independently, but can only join the main ones. According to legislation, they include forfeiture of the item, confiscation, forced demolition of the erected building. The rest of the recovery As well as administrative deportation of foreigners or stateless persons outside the Republic of Kazakhstan, may be used to suspend the operation of a license, suspend or prohibit an entrepreneurial activity or certain types thereof, As both basic and additional administrative penalties. In comparison with the previous Code, the measures of administrative penalty have undergone serious changes and today constitute the following system: Prevention is a measure of preventive and moral action rather. It is aimed at the impact of the mind of the offender. The warning applies primarily to persons who have committed minor offenses and only when its application is provided for in sanctions. This penalty is imposed only in writing in the form of a court order or a decision of an official. An oral warning, a measure of administrative penalty is not recognized. Practical experience of applying the warning as a measure of administrative punishment testifies that an administrative warning is applied to a person who has committed a minor administrative offense, therefore, the warning contains elements of an educational orientation, 114
that is, it helps to bring the offender's behavior into a state consistent with the norms of law and Morality. The application of the warning means that if within one year from the date of imposition of the penalty a person again commits any administrative offense, the state bodies will be entitled to impose the most stringent measures, but within the framework of the sanction of the article on which the offense is absolutely. That is, the offender was already warned, but this did not have an effect, which entails more adverse consequences. Administrative fine is the most common penalty. The essence of the penalty is that the recovery of property nature, has a monetary expression and is expressed in the negative consequences of the property nature, which the person who committed the offense is obliged to undergo. The fine (poena pecuniaria) was considered in Roman law, as well as in the domestic law, as an administrative sanction – a kind of monetary penalty that goes to the state income (i.e. to the state budget) and imposed by the magistrate (i.e. the state authorized official Person, in republican Rome, he was called the administra-tores republicae nostrae, vested with power (coercitio, i.e. the «right to punish»). It is characteristic that in Roman law, penalties were imposed in some cases by special laws, as well as in the domestic legal system; These include sanctions under the August Law (lex Julia) for bribery of voters (ambitus, 18 BC), for changing landmarks (lex agraria, 111 BC), and many others. Accordingly, Roman law delineated offenses (in the case of ambitus), for which fines were imposed, from crimes (crimina), always established by law. Persons who were given the power of the state (praefectus) were characterized by a differentiation of administrative functions; Many of these persons were vested with the power of administrative coercion, including the application of measures of restraint and imposition of administrative penalties (praefectus urbis, praefectus juri dicundo, praefectus legionis – in the army and navy, praefectus praetorio and many others). The application of measures of administrative responsibility in the Republic of Rome was built on a special magistracy institute – magistratus, and all officials vested with administrative coercion powers occupied a special status in the system of magistrates. 115
The fine has three special features, namely: 1. A fine is always imposed in monetary terms. 2. The amount of the imposed fine is determined within the limits specified in the sanction of the Special Part of the Code of Administrative Offenses. 3. The penalty is always applied only as the main administrative penalty and may be used as a substitute for other penalties, for example, the offender can not be subject to administrative arrest because of his special characteristics, the judge replaces him with a fine. The penalty is measured in monthly calculated indicators, which are annually established by the laws on the republican budget. It is necessary to take into account that the monthly calculated indicator is variable and varies in accordance with the inflationary processes taking place in the state. The imposition of an administrative fine obliges the offender to pay a fine in the time prescribed by law, otherwise the fine is collected in indisputable order from the earnings of the fined person, in addition, the law may fix a penalty, in a certain percentage, for each day of the delayed time. Penalty from legal entities is collected by direct debiting from accounts in a bank or transferred to a judicial executor for execution. The fine shall be withheld for a period not exceeding six months. Nowadays, a fine is considered the most effective measure and is provided for most administrative offenses. The next measure of administrative penalty is administrative arrest. This is the most severe penalty, which is the deprivation of personal freedom and imprisonment for a period provided for by the relevant article of the Code. In this regard, administrative arrest is established only in exceptional cases, for certain types of offenses. Three types of arrest are envisaged in legal liability, namely: administrative, disciplinary and criminal procedural. Administrative arrest is only applied by court order. The term is established by the legislation from 1 to 15 days, and in emergency situations up to 30 days. Administrative arrest can not be applied to pregnant women, women with children under the age of 14, minors, disabled persons of Groups 1 and 2, as already noted, they can be replaced by a fine. 116
Administrative arrest does not lead to a criminal record and dismissal from work. Persons who are arrested are examined and their objects are seized for a term of arrest, which is the subject of a protocol. The arrested are attracted to socially useful works, for violation of internal discipline physical force and special means can be applied to them. Administrative arrest is executed immediately after the court's decision, its execution can be postponed for two months on the basis of the statement of the arrested person. The reasons for postponing the execution of arrest can be any significant grounds making impossible the execution immediately, for example a business trip, or illness, however, the delay can only be imposed by the judge. In accordance with the Code on the review of cases entailing administrative arrest, the prosecutor must be informed. Administrative arrest is used in the commission of repeated offenses, as well as offenses that are very similar in their characteristics to crimes. The next measure of administrative penalty is the forfeit withdrawal of the item, which was the instrument of committing or the direct object of an administrative offense. As a measure of property nature, it can only be applied to the owner of the object, which was used as an instrument or an immediate object of the offense. Items of personal use are not subject to withdrawal [7, art.20]. Items are withdrawn, what the protocol is drawn up and subject to sale through a network of commission stores or auction. The received profit after deduction of expenses for sale within three days is returned to the former owner. Article 49 of the Administrative Code establishes that a forfeiture exemption can only be applied by a judge for committing intentional offenses in cases of sanctions provided for in the Sanctions of the Special Part of the Code. Applicable to both individuals and legal entities. On the grounds of remuneration, the exemption differs from the confiscation of the object, which was an instrument or direct object of the offense, as well as income, money and securities received as a result of an administrative offense. This measure is relatively new, as it expanded the range of items to be confiscated. Just as with a forfeit seizure, an object that is the property of the offender may be 117
confiscated. Confiscation is imposed by a judge, in cases if it is provided for in the sanction of an article on which there is absolutely an offense. The essence of confiscation is the free transfer of property, money or securities into state ownership. In the event of the confiscation of income, money and securities, it must also be proven that they are received as a result of an administrative offense, that is, their illegality. So, for example, the incomes received by infringement of rules of trade in the markets, cladding and another. Also, as with a forfeit withdrawal, the confiscation of hunting weapons, ammunition and permitted hunting and fishing tools, against persons for whom hunting, is the main legal source of existence is prohibited. The next type of administrative penalty is the deprivation of special rights. Special administrative law recognizes the rights issued by authorized state bodies, on the basis of applications of citizens and legal entities, if they meet certain requirements. For example, the right to drive a transport ticket, the right to carry and store firearms and others, the state, as well as issues rights, is also entitled to deprive them. The deprivation of special rights are applied by the judge for a gross and systematic violation of the rules for using them. This measure of recovery can be applied both as a basic and as an additional measure. The legislator sets a period of deprivation – from one month to two years. The period of deprivation of the right to drive vehicles is in a state Alcoholic, narcotic and toxicomaniac intoxication can be from two to ten years. The deprivation of a special right entails the prohibition of engaging in certain activities for a period determined by the resolution on the application of the penalty. In addition, the law defines the circle of persons for whom deprivation of rights are not applied. Since it has already been mentioned above, it is prohibited to deny the right to carry and store firearms and blankets of servicemen and law enforcement officers. P.4 art.51 of the Code of Administrative Offenses of the Republic of Kazakhstan establishes that deprivation of the right to drive a 118
vehicle can not be applied in the persons who use this tool in connection with a disability. Exceptions are cases of driving vehicles in a state of intoxication, evasion from passing in the prescribed manner of examination for a state of intoxication, and also in the event of leaving the place of the traffic accident to which he was a participant. Clause 5 of the same article stipulates that the deprivation of the right to hunt, fish, store and carry hunting weapons and fishing gear can not be applied to persons for whom hunting is the main, legitimate source of existence, except for a systematic violation of established rules of use. One of the measures of administrative penalty applied both to individuals and legal entities is the deprivation of a license, special permission, qualification certificate or suspension of its operation for a certain type of activity, or the commission of certain actions. License – the official permission of the state to engage in one or another type of activity or perform certain actions. The issuance of licenses are carried out by state bodies to entrepreneurs and legal entities only if they comply with the relevant rules and legal requirements and is regulated by the Law of the Republic of Kazakhstan «On Licensing» of January 11, 2007. Qualification certificate – a document issued by specially authorized bodies, to an individual who testifies to his professional suitability and gives the opportunity to carry out one or another professional activity. Special permits – this is an official permission to commit certain actions, is a one-off or temporary. All these types of permits are issued by the state subject to certain requirements and are a real opportunity to monitor and regulate the activities of entrepreneurs and legal entities. In the event of a gross and systematic violation of rules and requirements, state bodies have the right to apply to the court for a revocation of certain permits. The decision to revoke the license is imposed only by the judge and only if this measure is provided for in the sanction of the article of the special part of the Code on which the offense was committed. Legislation provides for two types of deprivation temporary and permanent. Suspension of the license for a certain type of activity or the commission of certain actions or a temporary permit, a qualification certificate is established for a period of up to six months. 119
Deprivation of the same license is carried out in cases provided for by the licensing legislation: 1. Failure by the licensee to comply with the requirements contained in the license. 2. The court prohibits the licensee from engaging in the activity for which he has a license. 3. Not addressing the reasons why the licensor suspended the license. Accordingly, the deprivation of a license, a qualification certificate, a temporary permit entails a prohibition on engaging in certain activities or performing certain actions. The decision of the court to deprive or suspend the validity of a license, a special permit, a qualification certificate is submitted for execution to the bodies that issued them. After the expiration of the period of deprivation, the person subjected to this measure of recovery is entitled to obtain a license in accordance with the procedure established by law. The next measure by its nature is similar to the previous one, this measure is the decision or prohibition of the activity of an individual entrepreneur or legal entity. This measure entails material damage. It is applied only on the basis of a court decision based on the application of bodies having serious claims to a particular entrepreneur or legal entity. The basis for suspending the activities of an individual entrepreneur is a flagrant violation of the law on business. Thus, sanctions of articles 374 and 375 provide for the suspension or prohibition of the activity of public and religious associations for violating the law on public associations and on freedom of religion and religious associations. Suspension is possible only in cases when the breach is removable in time established by the court. Without a court order, by issuing a decision of an official, in exceptional cases it is possible to suspend or prohibit an activity for a period not exceeding three days, with mandatory submission of a statement of claim to the court. The decision of the case with possible application of the measure of suspension or prohibition of the activities of a legal entity is considered by the court within 10 days. 120
Art. 724 of the Administrative Code regulates the implementation of this measure. The court decision is transferred to the authorized person of the body who submitted the statement of claim, which completely or partially suspends the work of the organization, individual productions, prohibits the operation of buildings, structures, separate rooms, warehouses, electrical networks, heating devices. In the case of a ruling on the prohibition of a legal entity, it is sent to the registrar who checks compliance with the liquidation order and is obliged within 10 days to register the termination of the activities of the legal entity, notifying the state statistics bodies about this. Forced demolition of an unauthorized erect or erected building is used in cases of unauthorized, that is, without the appropriate building permit, as well as with a gross violation of the rules of construction. Such permission is issued by the architectural commission under Akim, as well as construction and architectural and construction control bodies. Applicable only on the basis of a court order. Execution of compulsory demolition must be carried out by the person in respect of which it was rendered. In cases of evasion, a construction brigade is called up, the payment of which is paid for by the violator. The next measure applies only to foreigners and stateless persons is the administrative expulsion of foreigners or stateless persons from the Republic of Kazakhstan. Foreigners and stateless persons are brought to administrative responsibility on the same basis as citizens of the Republic of Kazakhstan. In cases stipulated by the Law of the Republic of Kazakhstan «On the legal status of foreigners» of June 19, 1995 and sanctions of articles of the Special Part of the Code of Administrative Offenses, foreigners and stateless persons can be forcibly expelled from our state. Administrative deportation, imposed by the judge on the basis of the application of the relevant authorities. The grounds for deportation are, as a rule: violation of the rules of residence, actions that are contrary to the interests of ensuring state security or protecting public order, protecting the health and morality of citizens, protecting their rights and freedoms, as well as in violation of customs, currency or other legislation. The term for administrative expulsion of aliens and stateless persons is indicated in the court ruling. This measure is implemented 121
by Official transfer to the representative of the authority of a foreign state on the territory of which the offender is expelled on the basis of the treaty, or by independent departure under the direct control of the migration police officers. The deportation is carried out at checkpoints through the State Border of the Republic of Kazakhstan, as determined by the border guard service. The cost of travel to the state and its transition is incurred by the violator, in the case of their absence, funds are allocated at the expense of the funds of the executing agencies. When making a decision, the court must take into account the facts of prohibiting a foreign citizen from leaving Kazakhstan: 1. If there are grounds for bringing him to criminal liability. 2. If he is convicted of a crime. 3. If he evades execution of obligations imposed on him by the court. Departure can be postponed until the fulfillment of property obligations, which are associated with the essential interests of citizens of the Republic of Kazakhstan, other individuals and legal entities. In addition to the above measures of administrative punishment, the offender may be subject to administrative and legal measures. The CAO refers to them a test of knowledge of traffic rules and compulsory measures of a medical nature. Measures of administrative and legal influence are imposed along with measures of administrative punishment. The purpose of applying these measures is to prevent the commission of new offenses. Traffic knowledge testing is a measure used by traffic police for violation of traffic rules. Compulsory medical measures – are applied in accordance with the Code for persons who are ill with a chronic form of alcoholism, substance abuse addiction, and committed an administrative offense. In this case, in the case of an administrative offense, the judge sends the offender to a medical examination. And, if there is an appropriate conclusion, makes a decision on compulsory treatment. This measure of administrative coercion is regulated by the Code of the Republic of Kazakhstan «On the Health of the People and the Health System» of September 18, 2009. In accordance with the Code, persons who are recognized as sick by alcoholism, drug addiction or substance abuse are appropriately medically examined and who are evading voluntary treatment are 122
subject to Forced inpatient treatment in specialized treatment and prophylactic institutions. The period of compulsory treatment is up to two years, and in the case of re-referral – 3 years. The minimum period of treatment can not be less than 6 months, with early release possible only on the basis of a court decision based on the conclusion of specialists – narcologists. A special circle of subjects is not subject to compulsory treatment: juveniles, pregnant women, women with children under the age of 18 and not deprived of parental rights, disabled 1 and 2 groups, as well as persons with mental and physical illnesses whose treatment is not compatible with Treatment for alcoholism, drug addiction and substance abuse. In addition to the compulsory treatment of alcoholism, drug addiction and substance abuse, legislation also provides for such coercive measures as the treatment of mentally ill, sick with venereal diseases, AIDS, leprosy. However, these measures are not regulated by the code and are not measures of administrative responsibility, as they are essentially aimed at preventing negative consequences for society Questions for self-control: 1. What are the distinctive features of administrative responsibility as one of the types of legal liability? 2. What is meant by the subjective side of an administrative offense? 3. What is meant by the objective side of an administrative offense? 4. What is the object of an administrative offense? What is its difference from the subject of an administrative offense? 5. On what grounds can you distinguish an administrative offense from a crime? 6. What are the types of administrative penalties? 7. What is the maximum amount of an administrative fine for individuals, officials, legal entities? Recommended reading: Literature: 1. Zhatkanbaeva AE Legislation of the Republic of Kazakhstan on Administrative Offenses. – A., 2003. 2. Zhetpisbaev B.A. Administrative responsibility of the RK: the constitutional and legal aspect. – A., 2010. 3. Zhetpisbaev B.A. Administrative process: proceedings on administrative offenses. – A., 2004. Regulations 1. The Code of the Republic of Kazakhstan on Administrative Violations of July 5, 2014 No. 235-V (as amended and supplemented as of July 26, 2016).
PRODUCTION ON CASES OF ADMINISTRATIVE OFFENCES
Keywords: administrative proceedings, administrative offence, the manufacturing stage of the proceedings, ruling.
Manufacture on affairs about administrative offences is a separate Institute of procedural law and is regulated by the relevant procedural rules. In accordance with the administrative code of RK, the task of production on cases of administrative offences are the timely, comprehensive, complete and objective clarification of circumstances of each case, the resolution of it in accordance with this Code, the enforcement of the judgment, and identifying the causes and conditions that contributed to the Commission of administrative offenses. The procedure for production on cases of administrative offences judges and bodies (officials) authorized to consider cases on administrative offences, determined by the Code of administrative offences of the Republic of Kazakhstan the Procedure for imposition by the court of administrative penalties in the process of reviewing a criminal or civil case is determined by the provisions of the administrative code and, accordingly, the Criminal procedure code of the Republic of Kazakhstan and the Civil procedure code of the Republic of Kazakhstan. Individuals participating in manufacture on business about an administrative offence, have the right to make petitions subject to obligatory consideration by the judge, body (official) in which manufacture there is a given case. The petition is declared in writing and subject to immediate review. The decision on the petition or on refusal in its satisfaction is made in the form of definition. 124
Characterize the principles of consideration of cases about administrative offences based on the equality of citizens. The first, considering the case on administrative offense on the basis of the equality before the law and the authority considering the case, all citizens irrespective of origin, social and property status, racial and national belonging, sex, education, language, attitude to religion, type and nature of occupation, place of residence and other obligations. The second, the case of an administrative offense is considered open. In order to enhance educational and preventive roles of production on Affairs about administrative offences, such cases can be seen directly in the workforce, by place of study or residence of the offender. Note this is very rare. The third, it is prosecutorial supervision over execution of laws in the manufacture on Affairs about administrative offences. The fourth, it is the collection and evaluation of evidence. Proofs on business about an administrative offence is any evidence on the basis of which in accordance with the law the bodies (officials) establish the presence or absence of administrative offence, guilt of the person in its Commission and other circumstances relevant for correct resolution of the case. This data establishes the following: a Protocol on administrative offence, explanations, brought to administrative liability, with testimony of the victim, witnesses, expert opinion, and indications of special means, material evidences, the Protocol on seizure of belongings and documents, and other documents. The body (official) evaluates the evidence according to their inner conviction based on comprehensive, full and objective research of all circumstances in their entirety, pursuant to law and the legal consciousness [1, p. 752]. On administrative offense drawn up by authorized official. Of particular importance are measures of maintenance of manufacture on Affairs about administrative offences. In order to prevent administrative offences, establishing the identity of the suspect in the Commission of the offense, the Protocol on administrative offense, it is impossible when drafting in place of committing an administrative offence, securing timely and correct consideration of the case and execution adopted in the case of regulations, the authorized officer shall have the right, within its powers, to apply in respect of indi125
viduals the following measures to ensure proceedings on administrative violations: 1) conveyance to the place of compiling the Protocol on administrative violation; 2) administrative detention of the physical person; 3) the drive; 3-1) preventive restriction of freedom of movement; 4) personal examination and inspection of the vehicle, small vessel and things; 5) seizure of documents and things; 6) removal from driving a vehicle or small boat and survey it on the alcohol, drugs, for abuse of intoxication; 7) detention, delivery and prohibition of the operation of a vehicle or small vessel; 8) inspection; 9) medical examination of individuals in the state of alcoholic, narcotic or for abuse of intoxication. In respect of a legal person can be applied the following measures of maintenance of manufacture on business about administrative violation: 1) inspection owned legal entity premises, there are goods, vehicles and other property and relevant documents; 2) the seizure of documents belonging to a legal person; 3) arrest or seizure of goods, vehicles and other property belonging to a legal entity. Depending on the size and complexity of remedial activities can be distinguished divided into simplified (accelerated) manufacturing (for example, when the penalty is imposed directly on the spot of the violation), the standard and the special (more complex). Simplified production – this production, in which the Protocol is not made and a penalty is imposed on a place of Commission of the offence. The Protocol is not drawn up in the presence of the following grounds: a) the offence is punishable with an administrative penalty in the form of a warning or a fine of up to one monthly calculation index; b) the offender admits his guilt and agree with the imposed sanction. For example, the offense of traffic rules. When committing an administrative offence, entailing the imposition of an administrative penalty in the form of a warning or penalty if it does not exceed the amount of five monthly calculation indices and the person (individual, body or person performing functions of management of the legal entity) admitted the fact of the offence, the Protocol on administrative offence is not made. The penalty to a warning issued by an authorized officer at the place of committing an administrative offense. In imposing penalties in the form of a fine, the issuance of a receipt of the established sample, which is a document of strict financial statements, carried out by an authorized officer at the place of committing an 126
administrative offense. A person commits an administrative offense, agrees with the cod recovery through the murals on the second instance of a warning or the payment document (article 639 of the administrative code). Conventional manufacturing inherent in the bulk of cases and regulated in detail by law. Examples of this special production is the procedure for the consideration by judges of cases of petty theft, disorderly conduct. For such cases, the terms, allowed the compulsory drive of the person, brought to responsibility, secured a special procedure for challenging decisions of the judges and their review. Based on the Code of administrative offences, administrative proceedings, we can distinguish several separate procedural steps: 1. Initiation of proceedings about an administrative offence. 2. Consideration of the case. 3. A judgment in the case of an administrative offense. 4. Appeal of the decision. 5. Execution of decisions on imposition of administrative sanctions. We consider each of them separately. I. Initiation of proceedings about an administrative offence is the initial stage of production, with its own goals and procedural design. The essence of this stage is to create a procedural document – a Protocol on administrative offense. In accordance with article 634 of the code of administrative offences of the RK, the basis for excitation of business about an administrative offence is the presence of sufficient data indicating signs of an administrative offense . The reasons for legal action are: 1) direct detection by an authorized officer of the fact of committing an administrative offense; 2) the materials received from law-enforcement bodies and other state bodies, bodies of local self-government; 3) reports or statements of individuals and legal entities, as well as messages in the media; 4) evidence of certified special measuring equipment and instruments. 127
The purpose of the stage of initiation of proceedings about an administrative offense – a preparation Protocol. To draw up a report on initiation of proceedings on administrative offences have the right person, the authorized person of the administrative code. From the correctness of the Protocol and completeness to reflect the circumstances depends on the correct consideration of and action on the case. Therefore, the Code clearly stipulates that the Protocol must be drawn up immediately, and if offences in the tax area after a tax audit. With the exception of cases in which additional information is required, a Protocol is drawn up within 3 days. The Protocol on an administrative offense must be within 1 day forwarded to the judge or the body authorized to consider this category of cases (Cao). In the case that the offence can be applied to an administrative arrest, the Protocol is submitted to the court immediately (Cao). The code clearly sets the timing of the initiation of the case, but quite often, it causes problems in practice. For example, the Protocol drawn up at the customs post, located many kilometers away from the district court or a district in a distant village may not actually be delivered within one day to the relevant authorities, the court. It involves a violation of procedural terms and automatically a violation of terms of consideration of the case. Many practitioners believe that the terms specified in the Code are often unrealistic, and that entails violations. II. The proceedings of an administrative offense – a main stage of administrative proceedings, which manifested all the features, the main features inherent in the procedural activities. The case of an administrative offense is considered at the place of its Commission, at the place of registration of vehicles, vessels, including recreational craft, or place of residence of the person against whom the proceedings are conducted in the case of an administrative offence, can also be considered in the place of their Commission or the place of residence of the person against whom the proceedings on administrative offense. Affairs about administrative offences of minors, their parents or persons in Loco parentis, are considered at the place of residence of the person against whom the proceedings on administrative offense. 128
Immediate consideration of the case is preceded by a preparation, which consists in studying of received documents (article 643 of the administrative code). In this case, the judge, collegial body member, official in preparation for the consideration of the case on administrative violation find out the following questions: 1) whether its jurisdiction consideration of the case; 2) whether there are the circumstances excluding possibility of consideration of the case by the judge, collegial body member, official; 3) right Protocol on administrative offence and other protocols set forth by this Code and the other materials of the case; 4) whether there are circumstances precluding proceedings on the case, and circumstances, allowing not to bring a person to administrative responsibility; 5) whether there are petitions and challenges; 6) informed about the place and time of consideration of the case All these circumstances shall be considered as collegiate bodies and by authorized officials. According to Cao, the cases on administrative offences are dealt with within fifteen days from the date of receipt by the judge; body (official) empowered to hear the case, the Protocol on administrative offence and other materials of the case]. At the opening of the proceedings by the official declares the essence of the case and article of the special part under which it falls. Thus declares a person charged with an identity of its identity and that of other participants in the process of explaining them their rights. The official is obliged to disclose the data recorded in the Protocol on administrative offense and, if necessary, to explain it. Is required, the hearing of testimonies and explanations engage in all the circumstances of the case. After that, in a logical order were heard by other participants in the process. Of the administrative code of Kazakhstan sets out the range of possible participants of manufacture on Affairs about administrative offences, as well as their rights and responsibilities. These include the person against whom the proceedings are conducted or his representatives, the victim or his representatives, defenders, witnesses, witnesses, specialists or experts, the Prosecutor, the interpreter. 129
When considering the case circumstances, which are listed in article 649 of the code of administrative offences, that is, whether the offense, whether guilty person involved in the Commission of the offense, whether it is administrative liability, identifies mitigating and aggravating circumstances and whether caused property damage, as well as its size. These circumstances are investigated based on the analysis of the evidence obtained, that is any actual data on the basis of which in accordance with the legislation determined by the presence or absence of contravention, the guilty individuals (the wine of the legal entity is not mandatory), as well as other circumstances relevant to the case. Procedural law provides that the accounting officer dealing with the matter of mitigating and aggravating circumstances. Their list is given in the articles of the administrative code. Circumstances mitigating responsibility for administrative violation are recognized: 1) repentance of the perpetrator; 2) preventing the culprit of harmful consequences of the offence, voluntary compensation of damages or elimination of damage caused; 3) committing an administrative offense under influence of strong emotion or at confluence of heavy personal or family circumstances; 4) committing an administrative offence by a minor; 5) committing an administrative offence by a pregnant woman or a woman who has a child under the age of three years; 6) committing an administrative offense resulting in physical or mental coercion; 7) committing an administrative offense in violation of the conditions of lawfulness of necessary defense, detention of perpetrators of criminal trespass, the execution of the order or instruction; 8) committing an administrative offence for the first time inadvertently. The range of these circumstances is not final. Official depending on the specifics of a case may recognize mitigating circumstances and other. For example, the positive characteristics from the place of work or study, the first offense or that the offender is the only breadwinner in the family, as a rule, always recognized as mitigating factors. The presence of aggravating circumstances punishable by more severe penalties and these include: 130
1) continuation of wrongful conduct, despite the clarification of the law by the Prosecutor and (or) the demand of authorized persons to terminate it; 2) re-during the year the uniform administrative offense for which a person has been subjected to administrative penalty for which has not expired 3) involving a minor in an administrative offence; 4) involvement in the Commission of the administrative offense of persons who are known by the perpetrator to suffer a severe mental disorder, or persons under age which the administrative responsibility; 5) committing an administrative offence motivated by ethnic, racial or religious hatred or enmity, from revenge for lawful actions of other persons and also with the purpose of concealing another crime or facilitating its perpetration; 6) committing an administrative offense against the person or his relatives in connection with the performance by that person of his official, professional or public duty; 7) committing an administrative offense against a woman known by the perpetrator to be pregnant, as well as against a minor, another defenceless or helpless person or a person dependent on the perpetrator; 8) committing an administrative offence by a group of persons; 9) committing an administrative offence in the conditions of natural disaster or other emergency circumstances; 10) committing an administrative offence in a condition of alcoholic, narcotic or for abuse of intoxication. The judge, body (official), imposing administrative penalty, depending on the nature of the administrative offence can not recognise the given circumstance aggravating. The range of aggravating circumstances unlike mitigation, cannot be increased. In addition, at the discretion of the officials of the above circumstances, depending on the circumstances of the case, may not be recognized as aggravating. III. A judgement in the case of an administrative offense. The results of the proceedings, the authorized body (official) shall issue a ruling in the case, which shall include: title, surname, initials of the judge, officials, the name and composition of the collegiate body which issued the decision; date and place of the hearing; information 131
about the person in respect of whom considered the matter: for individuals – surname, name, patronymic, date of birth, place of residence, name and details of identity document, taxpayer registration number, data on registration by place of residence; for legal persons – name, organizational-the legal form, the location, number and date of state registration as a legal entity, taxpayer registration number and Bank details; the language of proceedings on the case; reference to the act providing for liability for an administrative offence; the circumstances established during consideration of the case; decision; procedure and terms of appealing against the decision (article 651 of the administrative code). The ruling in the case of administrative violation must be motivated. If the decision on imposing penalties for administrative offences by a judge at the same time the issue of compensation is guilty of damage to property, the decree shall be specified the amount of damages to be recovered, the terms and procedure for compensation. When making a decision about administrative exclusion for limits of the Republic of Kazakhstan specifies a reasonable period within which a foreigner or a stateless person must leave the territory of the Republic of Kazakhstan. The decision of the collegial body shall be taken by simple majority of votes of the members of the collegial body present at the meeting. In case of equality of votes, the Chairman shall be decisive. Decision on case about administrative violation subscribes the judge presiding in session of collegiate organ, the official, made the decision. Having considered case about an administrative offence the judge, body (official) shall render one of the following decisions: 1) about imposing an administrative penalty. This decision is made if proven that the offence involved and the fault for committing an administrative offense. Penalties imposed in strict accordance with the sanctions of articles of the Special part of Cao of the Republic of Kazakhstan with consideration of the above circumstances. For committing several offenses provides for the imposition of the penalty for each offence separately (Cao). But the law sets the maximum amounts and terms of penalty, to exceed which it is impossible. Namely, the fine may be imposed of not more than three times the 132
maximum limit, the arrest not more than 30 days, and in cases of emergency not more than 45 days; 2) the termination of the proceedings. Such a decision shall be made by the authority or authorized person under circumstances precluding the proceedings. Also have conditions that are not to be brought to administrative responsibility, namely in the case of the first offense of voluntary compensation. In addition, for minor offence can be limited to oral warning, which is a measure of an administrative penalty will not be and, accordingly, will not result in a negative consequence. The body or official has the right to transfer the materials for consideration to the disciplinary Commission for disciplinary action, such as the case of military personnel offences or corruption offences. 3) on the transfer of the case to the judge, body (official) authorised to apply for this administrative offence penalty of a different kind or size, as well as the transfer of a case for trial at the place of registration of the vehicle (vessel, including small boats), in the cases stipulated by the present Code. For example, the case of an offense person has twice temporarily deprived of the right to drive vehicles is submitted to the court at the place of registration of the vehicle for the deprivation of a special right for a period up to 2 years. The decision of the authority (official) shall be in the form of a Decision in the case. It should contain not only the decision, but in the case of damages imposed obligation to indemnify him. The decision shall be announced immediately after its adoption. Its copy is immediately given to the person against whom it was made, or its representative, in their absence, a copy will be sent within 3 days. IV. Appeal the decision in the case of an administrative offense is an optional stage of the production. The basis for the emergence of this stage is the filing of the complaint or protest. According to Cao, the Complaint, the protest the ruling in the case of an administrative offense may be filed within ten days from the date of delivery of a copy of the decision and in case the persons referred to hereof, did not participate in the proceedings, from the date of its receipt . The ruling in the case of an administrative offense may be appealed by the persons specified in administrative code, and challenged the Prosecutor. 133
The complaint against the decision on business about an administrative offence goes to the judge, body (official) who issued the ruling in the case, which are obliged within three days from the date of receipt of the complaint, protest to send them with all materials of the case to the appropriate court, superior body (a superior official). In case of appeal, appeal against the decision in the case on the fact of disrespect to the court under Cao, the court is making the decision extract from the transcript of the hearing regarding the establishment of fact. A complaint may be filed, and the protest is brought directly to the court, a higher body (higher official) authorized to consider them. The procedure for filing complaints directly to the court for a ruling in the case of an administrative offence made by the body (official) shall be defined by civil procedural legislation. Complaint or protest against the judge's decision on the imposition of a sanction in the form of administrative arrest shall be direction in higher court in day of receipt of the complaint, protest. If the complaint, protest is not within the competence of the judge, who appealed, protested the ruling in the administrative proceedings, the complaint, the protest is directed on jurisdiction. In preparation for the consideration of complaints, protests on the resolution on case about administrative violation the judge, the authority official: 1) ascertain whether there are circumstances precluding proceedings on the case; 2) resolve application, seeks additional materials, cause the persons whose participation is deemed necessary for the consideration of complaints, protests; judge, if necessary, appoint an expert examination; 3) if the complaint, protest is not relevant to its competence, directs them with all materials of the case on jurisdiction. In accordance with article 664 of the administrative code, having considered the complaint, the protest the ruling in the case of an administrative offense, the judge of the superior court, the parent body (official) takes one of the following decisions: 1) the abandonment of the resolution and of the complaint, protest without satisfaction; 2) changes in regulations; 134
3) to quash and dismiss in the circumstances, and if justified by the circumstances under which it was issued; 4) for cancellation and making a new decision in the case; 5) on the cancellation of resolution and direction of case on consideration on jurisdiction if the complaint, protest found that the decree was unauthorized judge, body (official). The decision by results of consideration of the complaint, protest shall be made in the form of a ruling on the complaint, the protest on the decision of the case. V. Performance of the decision – the final stage of manufacture on Affairs about administrative violation. The ruling in the case of administrative offence comes into force: 1) after the expiration of the period for appeal of the decision in the case of an administrative offence, if it was not appealed or protested; 2) immediately after a determination on the complaint, the protest and a ruling in the case provided for Cao. The resolution on imposing of an administrative penalty is obligatory for execution by all state bodies, bodies of local selfgovernment, officials, individuals and their associations, legal entities. The resolution on imposing of an administrative penalty is enforceable from the moment of its entry into force. The imposition of administrative penalties of deprivation of a special right and an administrative arrest shall be executed from the moment of their adoption. The resolution on imposing of an administrative penalty is to be executed by the authorized bodies in the procedure established by this Code. In the case of issuance of several resolutions on imposing administrative penalties concerning one person, each decision is carried out independently. Evasion of the person from administrative penalty shall entail the execution of this sanction in a compulsory manner in accordance with the law. According to Administrative code, the body (official), which issued resolution on imposition of an administrative penalty imposed, the resolution of issues related to the execution of this decision, and control over its execution. Questions about deferment, payment in instalments, the suspension or termination of execution of the decision on imposing an administrative penalty and a fine imposed on a juvenile, his parents or persons in Loco parentis, are considered by the 135
judge, body (official) who issued the resolution within three days from the date of occurrence of the basis for resolution of the issue. Persons interested in resolving the issues identified in part two of this article, shall be notified of the time and place of their consideration. The absence of interested persons without a valid reason is not an obstacle to the permission of the relevant issues. When considering the question of evasion of serving of administrative arrest in the presence of a person subjected to administrative arrest, is mandatory. The decision on the matters specified in part two of this article, is accepted in the form of an order. A copy of the order is immediately given to the physical person or the lawful representative of the legal entity in respect of which it was made, as well as the victim at his request a receipt. In the absence of said persons, a copy of the resolution is sent within three days from the date of its removal about what corresponding note is made in the case. The resolution on imposing of an administrative penalty, which penalty is fully produced, with a mark about the recovery returns the body that has performed the decree, the judge, body (official) which issued the decision. The resolution on imposing of an administrative penalty, which has not been executed or the execution is not completely returned to the body (official) which issued the decision, who made the Protocol on administrative offense, in cases and order stipulated by Law of the Republic of Kazakhstan «On enforcement proceedings and status of bailiffs». Executive production is the most important as in any proceedings of offences and the most problematic. Unfortunately, not all decisions and orders in such cases shall be brought to its logical end of execution, some of them are not enforced, than reduce to zero all previous efforts and legal proceedings. The topic of default is quite widely discussed both in press and in government programs. Records of relevant authorities indicate that the problem is in this issue. For example, the administrator of the courts of Karaganda region analyzed the work of local areas in the enforcement of judicial decisions over the past year. So, for 2005, the performance was more than 125 thousand Executive documents, which is 15 thousand less than the same period in 2002. In terms of money recovered was subject to more than 3.5 billion tenge against KZT 4 billion less than in 2002, Of them the production 136
is over 98 million (78.3 per cent) of Executive documents for a total amount of more than 2 billion (52.4 per cent). Moreover, the report indicated that the Karaganda region keeps stable leadership in the Republic by the total number subject to execution of judicial acts. The reasons for incomplete performance by the administrator are the following reasons: First, an insufficient number of bailiffs, as per by have per month on average 300-500 cases. Although in recent years and the increase in the number of bailiffs, but there is a significant gap between the number of judges and judicial officers, almost 100 units. Secondly, one of the main problems is the avoidance of the execution of the court order on collecting from a public institution, financed from the state budget. The leaders of these bodies in various ways delayed the execution of the judgment or passiveness in addressing this issue. Thirdly, one of the reasons for the recoveries of the Executive sanctions is that in Paradise (mountains) courts developed the practice of making decisions by results of consideration of representation of the bailiff in the form of a definition. Definition as a form of judicial decisions, in accordance with article nine of the Law of RK «On enforcement proceedings and status of bailiffs», is not an Executive document . Writs issued in the court's determination will not be accepted by banks to execution because the Law of RK «On banks and banking activity» establishes the list of documents that are Executive documents, allowing performing banking operations. In addition, we can distinguish the reasons of default of the penalty objective, namely the unemployment of the debtors, the illiquidity of their assets, the lack of funds, and lack of consumer demand for the seized property. Some of the public authorities empowered to consider cases on administrative offences, to take all possible measures to recover the fine. For example, the traffic police of the MIA of RK pursuant to the penalties of fines issued Order in accordance with which no one can pass the annual techsmart without payment of imposed fines, the full amount of information on assessed penalties entered into a single computer database. Many regulatory authorities in providing public services is disable the technical means and temporarily denied the provision of appropriate services to repay the debt and penalties assessed for a flagrant violation of the rules of 137
use of these types of services. Analysis of work on execution of Executive documents on collecting of debts for housing and communal services showed that over the 12 months of 2003 the performance was in the Karaganda region more than 19 thousand Executive documents for the sum of 350 million tenge, from them is executed 16 million (85.6 per cent) amounting to 310 million tenge. The rest are not executed documents is 2800 production in the amount of 38 million tenge. Pursuant to the court or other decision in cases of certain types of offence, the state takes a number of effort. In particular, in order to improve the effectiveness of enforcement proceedings and status of bailiffs was adopted by the presidential Decree «On measures to improve the law enforcement system in the Republic of Kazakhstan» dated 22 January 2001. In addition, the adopted regulatory resolution of the Supreme court of Kazakhstan 19.12.2003 «Of liability for willful failure to execute judicial acts», in which persistent evaders can be prosecuted under article 362 of the criminal code. Therefore, in 2003, law enforcement authorities were sent to 118 materials for making a procedural decision, which was initiated 30 criminal cases. In addition, to improve the efficiency and ensuring the enforcement proceedings and the bailiffs in order to improve and increase the effectiveness of the execution of judgments has developed a set of activities and set the priorities of work for 2004: 1. Created a special group of judicial officers by categories of Executive documents «fines and confiscations», «utilities», «maintenance», «salaries», «foreclosure tax», «collection of individuals». 2. Introduce a monthly provision of territorial areas the administrator of the courts statistical report No. 4, that is, the movement of Executive documents. 3. Control over observance of terms of execution of the enforcement procedures in compliance with the Law of RK «On enforcement proceedings and status of bailiffs». A special problem of enforcement proceedings is that the Code of administrative offences imposed duty of carrying out the decision of the state bodies on the court. This Executive function is not peculiar to the court, which is contrary to the Constitution and deprives citizens and legal persons of the constitutional right to appeal acts of the authorized bodies in the district courts during the period of enforcement, leaving only the right to appeal under the Supervisory procedure. 138
In accordance with the administrative code, the decision on imposing an administrative sanction in the form of a warning is executed by the judge, body (official) which issued the decision, by delivery or sending a copy of the decision. The ruling in the administrative proceedings is announced immediately after the hearing. A copy of the order is immediately given to the physical person or the lawful representative of the legal entity, in respect of which it was made, as well as the victim, the lawful representative and authorized body (official) that initiated a case on administrative offence, at their request. In the absence of said persons, a copy of the resolution is sent within three days from the date of its adoption. In the case of a ruling on administrative arrest of a copy of the decision shall be sent immediately to the Prosecutor. So, if the decision of the Agency was not executed within 1 month, the materials sent to the court, which rewrites mechanical resolution authority, accepts the decision on forced collection, and sends to the administrator. Questions for self-control: 1. The concept and features of administrative proceedings. 2. The essence of summary proceedings. 3. Describe the stage of manufacture on Affairs about administrative offences. Recommended Literature: 1. Zhatkanbaev A.E. Legislation of the Republic of Kazakhstan on administrative offences. – A., 2003. 2. Zhetpisbaev B.A. Administrative liability of the Republic of Kazakhstan: constitutional and legal aspect. – A., 2014. 3. Zhetpisbaev B.A. Manufacture on Affairs about administrative offences. – A., 2012. Normative-legal acts 1. The Code of the Republic of Kazakhstan on administrative offences dated 5 July 2014, No. 235-IV (with changes and additions as 26.07.2016)
PASSPORT OF THE DISCIPLINE
Information about the instructors leading discipline: Ospanova Djamilya Azizkhanovna – candidate law of sciences, Professor: Phone numbers (work, home, mobile): a slave.377-33-33 EXT. 12-55. E-mail: Office: 325 Smanova Akmaral Bahtyarovna – candidate of law sciences, Professor: Phone numbers (work, home, mobile): a slave.377-33-35 ext. 12-55. Office: 325. Prerequisites: a) theory of state and law; b) the universal history of state and law; C) the history of the state law of the RK; d) history of political and legal doctrines. Postrequisites: 1) Comparative constitutional law; 2) Administrative liability; 3) Administrative process; 4) Finance; 5) Public service and administration; e) Customs law etc. The purpose and objectives of the course: the Study of legal principles of state management in the Republic of Kazakhstan and some foreign countries, the acquisition of knowledge in the field of organization and activity of Executive authorities, skills in working with regulatory legal acts regulating the activities and powers of the relevant bodies and officials. In the process of studying these discipline students, learn the structure of the state apparatus, the competence of the various levels and types of government agencies and the legal regulation of the Institute of public administration and the relationship of individuals and legal entities with state agencies. A special aspect of consideration will be different types of administrativelegal regimes and methods of state regulation and the rule of law and the rule of law. Competences: to Know the specifics of state administration in the Republic of Kazakhstan. To know the theory of administrative law and administrative process, to be able to analyze the current legislation regulating the activities of the Executive authorities. To be able to apply the norms of the Code on administrative offences of the Republic of Kazakhstan, to solve situational tasks; to draw up procedural documents.
STRUCTURE, SCOPE AND CONTENT OF DISCIPLINE
Discipline «AR 1304» – «Administrative Law» (3 credits) Topic title Hour Tasks I. THE SYSTEM OF ADMINISTRATIVE LAW Lecture 1. The concept and Tasks for thematic blocks: 2 stages of development of 1) current trends in the the emergence of development of the administrative administrative law law of the Republic of Kazakhstan; 1 Practical work 1. The 2) administrative and legal norms, concept and stages of their features and types; development of the 3) administrative and legal emergence of relations, their subjects, features, administrative law types, grounds of origin, change and termination; Lecture 2. Subject, sources 2 4) the place of Administrative Law and methods of in the system of national law of the administrative law 1 Republic of Kazakhstan; Practical lesson 2. Subject, 5) the tasks of the science of sources and methods of administrative law in the modern administrative law period of development of the Republic of Kazakhstan. Sources of Lecture 3. Administrative 2 Science of Administrative Law. and legal norms Form of delivery – reports with Practical lesson 3. 1 discussion. Administrative and legal norms Lecture 4. Administrative 2 and legal relations Practical lesson 4. 1 Administrative and legal relations II. SUBJECTS OF ADMINISTRATIVE LAW Lecture 5. Administrative Study and analysis of the 2 and legal status of the following normative acts: President 1) The Constitution of the Republic Practical lesson 5. of Kazakhstan as of 30.08. 1995 1 Administrative and legal 2) «On the Government of the
status of the President 4
Lecture 6. Government – the supreme executive authority Practical 6. Government – the supreme executive authority
Lecture 7. Central Executive Authorities Practical session 7. Central Executive Authorities
Lecture 8. Local Executive Authorities Practical work 8. Local executive authorities Current control 1
Republic of Kazakhstan». The Constitutional Law of the Republic of Kazakhstan of December 26, 1995. 3) «On the President of the Republic of Kazakhstan». The Constitutional Law of the Republic of Kazakhstan of December 26, 1995. 4) «On local government in the Republic of Kazakhstan». Law of the Republic of Kazakhstan as of January 23, 2001. 5) Regulations of the Government of the Republic of Kazakhstan. Form of delivery of the SWS – analytical review / oral survey. 1. The concept and method of administrative law as a branch of law. 2. Administrative and legal norms, their features and types. 3. Administrative-legal relations, their features and types. 4. System of executive authorities of the Republic of Kazakhstan. 5. Sources of administrative law of the Republic of Kazakhstan. 6. The government as the highest executive authority of the Republic of Kazakhstan. 7. System of central executive authorities of the Republic of Kazakhstan. 8. The akims as representatives of the President and the Government in the field. 9. Powers of the Akim. 10. Structure of ministries and departments. 11. The main functions and tasks of the central executive authorities of the Republic of Kazakhstan. 12. Acts of central executive authorities.
13. Administrative and legal status of the President of the Republic of Kazakhstan. 14. Questions on the basis of which a vote of no confidence in the Parliament is announced to the Government. 15. Structure of the Government of the RK. 5
Lecture 9. Subjects of administrative law: individuals and legal entities Practical lesson 9. Subjects of administrative law: individuals and legal entities
Study and analysis of the following normative acts: 1) Law of the Republic of Kazakhstan «On the Procedure for Consideration of Appeals from Individuals and Legal Entities» dated January 12, 2007. 2) «On the Legal Status of Aliens and Stateless Persons in the Republic of Kazakhstan». Decree of the President, having the force of the Law of July 19, 1995. 3) Law of the Republic of Kazakhstan «On Public Associations» 4) Law of the Republic of Kazakhstan «On Religious Associations» 5) Law of RK «On Migration of Population» Form of delivery of the SWS– analytical review / oral survey.
IV. STATE SERVICE Lecture 10. Public service Study and analysis of the following 2 Practical lesson 10. Public normative acts: 1 service 1) Law of the Republic of Kazakhstan «On Public Service». of November 23, 2015. 2) Ethical code of civil servants. Lecture 11. Administrative 2 3) Law of the Republic of and legal status of civil Kazakhstan «On Combating servants 1 Corruption». of 2 July 1998. Practical session 11. 4) Regulations on the procedure for Administrative and legal passing the civil service. Approved status of civil servants by the Decree of the President by
the Decree of the President of the Republic of Kazakhstan dated March 10, 2000. 5) Form of delivery of the SWS – analytical review / oral survey. V. FORMS AND METHODS OF GOVERNMENT MANAGEMENT Lecture 12. Forms and Tasks for thematic blocks: 9 2 methods of public 1) The concept of public administration administration methods and their 1 Practical session 12. Forms classification; and methods of public 2) Interaction and complementarity administration of economic and administrative methods of public administration; 3) Coercion and promotion as 10 Lecture 13. Administrative 2 methods of public administration; coercion 1 4) The role and importance of Practical lesson 13. administrative coercion in the Administrative coercion system of legal coercion; 5) System of measures of administrative coercion. Form of delivery of the CWS – analytical review / orally. VI. ADMINISTRATIVE RESPONSIBILITY. ADMINISTRATIVE PRODUCTION Tasks for thematic blocks: 11 Lecture 14. Administrative 2 responsibility 1) Study and analysis of the Code Practical work 14. of Administrative Offenses of the 1 Administrative Republic of Kazakhstan; responsibility 2) The solution of situational problems proposed by the teacher 12 Lecture 15. Proceedings in 2 for various types of administrative cases of administrative violations, in various fields. offenses 1 Determination of jurisdiction, type Practical lesson 15. of violation, choice of sanction for Proceedings in cases of the violation, taking into account administrative offenses all the circumstances of the case, the choice of the article. Filling of forms of procedural documents (protocols, compilation of explanatory, receipts, etc.) depending on the circumstances of the case. The form of delivery is the preparation of cases on an administrative offense.
1. The concept of administrative coercion. 2. Types of measures of administrative coercion. 3. The notion of an administrative warning. 4. Preventive measures: inspections, suspension of work, quarantine, removal from work, etc. 5. Measures of Administrative Suppression 6. Administrative supervision of persons released from places of deprivation of liberty 7. Forced treatment, concept, features and types. 8. Legal regulation of the application of measures of administrative restraint. 9. Procedural measures of administrative restraint: administrative detention, drive, personal inspection, transport inspection, delivery and others. 10. The use of special means, weapons and physical strength. 11. The notion of administrative responsibility. 12. The concept of an administrative offense and its composition. 13. Legal features of an administrative offense. 14. Subjects of administrative responsibility: general, special and special. 15. Measures of administrative penalty. 16. Administrative Justice. Administrative jurisdiction.
Current control 2
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.
The concept and subject of administrative law. Sources of administrative law. Methods of administrative law. The history of the development of administrative law Administrative law: concept and types. Administrative-legal relations: notion and types. The specifics of administrative law as a branch. Administrative law as a branch of science. The system of Executive authorities of Kazakhstan. The legal status of the Government of the Republic of Kazakhstan The powers and competence of the Government of the Republic of Kazakhstan 12. The Structure of The Government of The Republic of Kazakhstan 13. Interaction of the Government with the President of the Republic 14. The interaction between the Government and Parliament of the Republic of 15. The system of Central Executive authorities of the Republic of 16. Legal status of the ministries. 17. The legal status of agencies. 18. The legal status of the Central Executive authorities, subordinate to the President of the Republic of Kazakhstan. 19. Administrative-legal status of the President of the Republic 20. The legal status of local Executive authorities of The Republic of Kazakhstan. 21. The interaction of the Mayor and local authorities. 22. Legal bases of activity of local Executive bodies the authorities of the Republic of Kazakhstan. 23. The order of appointment of heads of Central and local the Executive authorities of the Republic of Kazakhstan. 24. The government as the highest Executive authority of The Republic of Kazakhstan. 25. Administrative-legal status citizens of the Republic of Kazakhstan. 26. Administrative and legal status of foreigners and persons without citizenship. 27. The administrative rights of the citizens of Kazakhstan. 28. The legal status of members of the Government of the Republic of Kazakhstan. 29. The concept and content of the public service of Kazakhstan 30. Concept and types of civil servants of the Republic of Kazakhstan.
32. 33. 34. 35.
Principles of public service in Kazakhstan. The legal status of civil servants of The Republic Of Kazakhstan. Legal status of political public servants of The Republic Of Kazakhstan. The procedure for entering state service of political and administrative employees of the Republic of Kazakhstan. 36. Classification administrative officials of the Republic of Kazakhstan. 37. The procedure of carrying out tender on occupation of vacant administrative positions 38. Certification of administrative civil servants. 39. The legal status of civil servants of the Republic of Kazakhstan. 40. Restrictions on the rights of public servants of Kazakhstan. 41. The requirements of the Code of honor of civil servants of the Republic Kazakhstan. 42. Legislation of RK on combating corruption and its requirements. 43. Disciplinary liability of civil servants. 44. Methods of state control 45. Administrative enforcement and its specificity. 46. Measures of administrative prevention. 47. Measures of administrative punishment. 48. Compulsory treatment under the laws of the Republic of Kazakhstan. 49. The complaints of citizens in bodies of state administration. 50. Administrative procedures according to the legislation of the Republic of Kazakhstan. 51. The administrative supervision over persons arriving from places imprisonment. 52. Administrative responsibility: the concept and specifics. 53. Classification of subjects of administrative responsibility. 54. Penalties under the laws of Kazakhstan on administrative responsibility. 55. Manufacture on Affairs about administrative offences. 56. A state of emergency. 57. The regime of martial law. 58. The regime of secrecy. 59. Forms of state control. 60. The state of emergency of natural and technogenic character.
1. Describe the grounds for the imposition of martial law? What is the list of limitations of human rights in this period? 2. What is the justification for the imposition of emergency and what is the list of limitations of human rights in this period? 3. What are the limitations of the rights of persons with access to state secrets? What is the secrecy? 4. What is the list of «close relatives», which is defined in the Law «On combating corruption»? 5. Officer of the Ministry of defense of Kazakhstan N., in an interview, voiced a number of one of the divisions military divisions, and clarified the question about the number of infantry and tank weapons in the same units. The next day he was summoned to testify in the CSS. That will incriminate Them. 6. The staff of Department of currency control and S. K. decided to get married. What are their actions? 7. S. citizen has been dismissed from public service due to not passing certification. May 1 came to him the summons to appear before the tax Committee that he and his wife had not passed a Declaration of income. S. to come to the tax Committee refused, citing the fact that he was in the civil service no longer works. Is he right? And what period of time he is required to submit a Declaration of income November 30, 2009, the Tax Committee has received the complaint of citizen K. that on 17 April 2008 the chief inspector of the tax Committee C. he was denied the opening of IE (individual entrepreneurs), based the fact that K. was not at that age to be able to carry out such a complex activity. Plenipotentiary whether regional tax Committee to take the matter into consideration. Decide the case on the merits 8. The mayor of the district attended the opening of the new library building. The Director of the library as a token of appreciation and respect, as well as for their support gave the Mayor a valuable book from the archives of the library. The next day in the Governor's office received an anonymous letter. Solve the problem essentially Civil servant S. was in financial police that his Bank card has received 100 thousand tenge from an unknown source. S. thought it was a vacation and spent them however, a week ago on account of the holiday fell. Decide the case on the merits
9. During the RAID by the police at 23.15 in the theater district sparkle was detained juveniles C. and K., who were in intoxicated. They loudly swore, insulted passers-by, they threw empty cans from beer. Decide the case on the merits 10. During the RAID by the police at 23.15 in the theater district sparkle was detained juveniles C. and K., who were in an alcohol intoxication. Decide the case on the merits 11. During the RAID by the police were detained all players, illegal gambling, among the detainees was the head and experts the court addressed the residents, 4 MD.3 with the statement that their neighbor to drink, and treats the whole staircase. K. stands on the account in a clinic. At the request of the neighbors about the necessity of compulsory treatment, the wife of K. she says she can't lose the only supporter and to treat him not going. Solve the problem essentially
12. The district asked the citizens of the village Enbek, who said that their countrymen K. made platinum on the upper portion of the river that prevents the rest of the villagers to irrigate their allotments. Decide the case on the merits 13. The court asked the staff of LLP «UNIX», stating that they have had more than 2 months have not been paid. Decide the case on the merits 14. In the period of a state of emergency was detained citizen K., who was on the street during curfew hours. Until what time and for how long will be detained To
15. While conducting the audit it was discovered that the accountant deducted from the balance of KSK barrels of paint, which is then transferred to his home. The amount of barrel 12 thousand tenge. Decide the case on the merits 16. The administrative court with the statement I addressed the akimat Saryarkinsk district of Astana that a citizen K. was performed squatting on the ground, which is already built residential and utility rooms. Decide the case on the merits 17. While conducting the road check had been detained the citizen, which had been buying dollars near exchange office. It turned out that this detention is not the first. Permits and license missing PSC of this region. Police made the report and one copy handed in The Agency for civil service Affairs. Decide the case on the merits.
General literature: 1. Nazarbaev N.A. K konkurentosposobnomu Kazaxstanu, konkurentosposobnoj e'konomike, konkurentosposobnoj nauke. Poslanie prezidenta narodu Kazaxstana, 19 marta 2004 // Kazpravda, 2004, 19 marta. 2. Nazarbaev N.A. Kriticheskoe desyatiletie. – Almaty': Atamura, 2003. 3. Nazarbaev N.A. Kazaxstan – 2030. Procvetanie, blagopoluchie i uluchshenie blagosostoyaniya vsex kazaxstancev. Poslanie narodu Kazaxstana 11 oktyabrya 1997. 4. Taranov A.A. Administrativnoe pravo. Akademicheskij kurs. Obshhaya chast'. – A., 2002. 5. Taranov A.A. Administrativnoe pravo. Akademicheskij kurs. Osobennaya chast'. – A., 2002. 6. Alexin A.P., Karmolickij A.A., Kozlov Yu.M. Administrativnoe pravo RF. – M.: Zerkalo, 1996. 7. Baxrax D.N. Administrativnoe pravo. – M., 1996. 8. Taranov A.A. Administrativnaya otvetstvennost' v Respublike Kazaxstan. – A., 1997. 9. Zhatkanbaeva A.E. Zakonodatel'stvo RK ob administrativnoj otvetstvennosti. – A., 2002. 10. Bayanov E.B. Gosudarstvennaya sluzhba RK. – A., 2006. 11. Steven J. Cann. Administrative Law. – 2005. 12. L. NEVILLE BROWN, OBE, MA, LL M (Cantab.) Docteur en Droit (Lyon), Solicitor, Professor Emeritus of Comparative Law in the University of Birmingham JOHN S. BELL, MA, D. Phil. (Oxon.) French Administrative Law Fifth Edition. – 1998. Additional literature: 1. Tixomirov Yu.A. Kurs administrativnogo prava i processa. Yurinformcentr. 1998. 2. Rossijskoe policejskoe (administrativnoe pravo) Xrestomatiya. – Izd-vo VGU. – 1999. 3. Administrativnoe pravo. Uchebnik. Pod red. Agapova A.B. Gorodec. 1999. 4. Pravovy'e problemy' reformirovaniya gosudarstvennoj sluzhby' suverennogo Kazaxstana / pod red. Sapargalieva G.S. – Astana, 2003. 5. Prutnikov A.S., Andriashin X.A. Administrativno-pravovoe obespechenie prav i svobod cheloveka i grazhdanina. – M., YuNITI, 1998. 6. Zhetpispaev B.A. Administrativny'j process. – A., 2002. 7. Administrativnaya otvetstvennost' v SSSR. – Saratov. 1988. 8. Baxrax D.N. Administrativno-pravovy'e sankcii. – M., 1972.
9. Galagan I.A. Administrativnaya otvetstvennost' v SSSR. Voronezh 1970 g. 10. Kommentarii k KoAP RSFSR. – M., 1997. 11. Taranov A.A. Kommentarii v KoAP RK v dvux knigax. – Almaty: Norma-K, 2002. 12. Dyuryagin I.Ya. Pravo i upravlenie. – M., 1981. 13. Starilov Yu.N. Administrativnaya yusticiya. Teoriya, istoriya, perspektivy'. – M., Norma-INFRA, 2001. 14. Drago R. Administrativnaya nauka. – M.: Progress, 1982. 15. Sovetskoe administrativnoe pravo / pod red. Vasilenkova M., Yurid. lit-ra. 1990. 16. Sovetskoe administrativnoe pravo. Metody' i formy' gosudarstvennogo upravleniya. – M., Yurid. lit-ra, 1977. 17. Tixomirov Yu.A. Teoriya zakona. – M., 1982. 18. Gosudarstvennaya sluzhba (kompleksny'j podxod) Uchebnoe posobie. – M., 1999. 19. Ushickaya A.A. Administrativny'e pravonarusheniya i otvetstvennost' za ix sovershenie. – Riga. 1988. 20. Yakuba O.M. Administrativnaya otvetstvennost'. – M., 1972. 21. Administrativnoe pravo zarubezhny'x stran / pod red. Kozy'rina N. – M., 1996. 22. Ageeva E.A. Yuridicheskaya otvetstvennost' v gosudarstvennom upravlenii. – M., 1990. 23. Manoxin M., Adushkin Yu. Administrativnaya otvetstvennost' v SSSR. – M., 1990. 24. Ibragimov X.Yu. Administrativnoe pravo. – A., 1999. 25. Uvarov V.N. Gosudarstvennaya sluzhba i upravlenie. – A., Izd-vo KazGYuA. 2004. 26. Zhetpisbaev B.A. Administrativnaya otvetstvennost'. – A., 2000. 27. Administrativnaya otvetstvennost' Uchebnoe posobie. – M., Yurisprudenciya, 1999. 28. Praktikum po administrativnomu pravu. – M.: Izd-vo BEK, 1996. 29. Rushajlo V.B. Administrativno-pravovy'e rezhimy'. – M., 2000. 30. Ovsyanko S.V. Administrativnoe pravo RF. – S., 2002. 31. Yusupov V.A. Pravoprimenitel'naya deyatel'nost' organov upravleniya. Yurid. Lit-ra. 1979. 32. Axmetov R.I., Ibragimov X.Yu. Mery' administrativnogo prinuzhdeniya, primenyaemy'e organami vnutrennix del. – A., Gy'ly'm, 1998. 33. Takuov X., Imambek I. Na sluzhbe u gosudarstva. – Almaty'. 1997. 34. Sbornik normativno-pravovy'x aktov po administrativnomu pravu. Pod. red. Podoprigora R.Yu. – Yurist, 2002. 35. Gosudarstvennoe upravlenie i administrativnoe pravo. Ucheb. – M., 1978. 36. Lazarev B.M. Gosudarstvennaya sluzhba. – M., 1993. 37. Starilov Yu.N. Gosudarstvennaya sluzhba: Uchebnik. – M., BEK, 1996. 38. Administrativnaya otvetstvennost' i problemy' administrativnogo prava (Chetverty'e «Lazarevskie chteniya») Gosudarstvo i pravo 2000, №10, S. 13-42.
39. O sisteme special'ny'x metodov policejskoj deyatel'nosti. K.S.Bel'skij, B.P. Eliseev, I.I. Kucherov Gosudarstvo i pravo, 2003, №3, s. 11-18. 40. O Koncepcii razvitiya administrativnogo prava i processa. Tixomirov Yu.A. Gosudarstvo i pravo №1, 1998. 41. Dauranov I.N. Organizaciya gosudarstvennogo upravleniya. Iz-vo NVShGU, 1997. 42. Zhetpisbaev B.A. Administrativnoe prinuzhdenie. – A., 2003. 43. Atamanchuk G.V. Teoriya gosudarstvennogo upravleniya. Kurs lekcii. – M., Yurid. lit-ra, 1997. 44. Tixomirov Yu.A. Upravlenie delami obshhestva. – M., My'sl', 1984. 45. Lunev A.E. Teoreticheskie problemy' gosudarstvennogo upravleniya. – M., Nauka, 1974. 46. Kopy'lov I.V. Informacionnoe pravo. – M., 2003. 47. Yusupov V.A. Teoriya administrativnogo prava. – M., 1985. 48. Korenev A.P. Administrativnoe pravo. Uchebnik. V 2-x tomax. – M., 19961997. 49. Baxrax D.N. Individual'ny'e sub»ekty' administrativnogo prava. gosudarstvo i pravo. – 1994, №3. 50. Kornev A.P. Normy' administrativnogo prava i ix primenenie. – M., Yuridicheskaya literatura, 1978. 51. Kisin V.R. Mery' administrativno-processual'nogo prinuzhdeniya, primenyaemy'e miliciej. – M., 1987. 52. Sorokin V.D. Administrativno-processual'noe pravo. – M., 2002. The recommended normative acts: 1. Konstituciya RK ot 30.08.1995 g. 2. Konstitucionny'j Zakon RK «O vnesenii izmenenii i dopolnenii v Konstituciyu RK» ot 21 maya 2007 g. 3. Kodeks Respubliki Kazaxstan ob administrativny'x pravonarusheniyax ot 30.01.2001 g. 4. Grazhdanskij Kodeks RK ot 27 dekabrya 1994 g. 5. Ugolovny'j Kodeks RK ot 16 iyulya 1997 g. 6. «O Pravitel'stve Respubliki Kazaxstan». Konstitucionny'j Zakon RK ot 26 dekabrya 1995 g. 7. «O Prezidente Respubliki Kazaxstan». Konstitucionny'j Zakon RK ot 26 dekabrya 1995 g. 8. Zakon RK «Ob administrativno-territorial'nom ustrojstve RK» ot 8.12.1993 g (v redakcii 11.05.2004 g.) 9. «O strukture Pravitel'stva Respubliki Kazaxstan». Ukaz Prezidenta ot 22 yanvarya 1999 g. 10. «O grazhdanstve Respubliki Kazaxstan». Zakon RK ot 20 dekabrya 1991 g.. 11. «O mestnom gosudarstvennom upravlenii v Respublike Kazaxstan». Zakon RK ot 23 yanvarya 2001 g. 12. «O gosudarstvennoj sluzhbe». Zakon RK ot 23 iyulya 1999 g. 13. «O bor'be s korrupciej». Zakon RK ot 2 iyulya 1998 g. 14. «O nacional'noj bezopasnosti». Zakon RK ot 26 iyulya 1998 g.
15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39.
«O gosudarstvenny'x sekretax». Zakon RK ot 15 marta 1999 g. «O normativno-pravovy'x aktax». Zakon RK ot 24 marta 1998 g. «Ob administrativny'x procedurax». Zakon RK ot 27 noyabrya 2000 g. «O pravovom rezhime chrezvy'chajnogo polozheniya». Zakon RK ot 5 fevralya 2003 g. «O voennom polozhenii» Zakon RK ot 3 marta 2003 g. Zakon RK «O poryadke rassmotreniya obrashhenii fizicheskix i yuridicheskix lic» ot 12 yanvarya 2007 g. «O psixiatricheskoj pomoshhi i garantiyax prav grazhdan pri ee okazanii». Zakon RK ot 7 aprelya 1997 g. «O prinuditel'nom lechenii lic bol'ny'x zaraznoj formoj tuberkuleza». Zakon RK ot 10 dekabrya 1999 g. «Ob administrativnom nadzore za licami, vy'shedshimi iz mest lisheniya svobody'«. Zakon RK ot 15 iyulya 1996 g. «Ob obshhestvenny'x ob»edineniyax». Zakon RK ot 31 maya 1996 g. «O pravovom polozhenii inostrancev i lic bez grazhdanstva v Respublike Kazaxstan». Ukaz Prezidenta, imeyushhij silu Zakona ot 19 iyulya 1995 g. «O poryadke organizacii i provedeniya mirny'x shestvii, sobranii, piketov i demonstracij v RK». Ukaz Prezidenta, imeyushhij silu zakona ot 17 marta 1995 g. Zakon RK «O sanitarno-e'pidemiologicheskom blagopoluchii naseleniya» ot 8 iyulya 1994 g. Zakon RK «Ob administrativno-territorial'nom ustrojstve RK» Zakon RK ot 8 dekabrya 1993 g. «Ob oborone i Vooruzhenny'x silax RK» Zakon RK ot 9 aprelya 1993 g. Ukaz Prezidenta RK «Ob organax nacional'noj bezopasnosti» ot 21 dekabrya 1995 g. «O Prokurature Respubliki Kazaxstan». Ukaz Prezidenta, imeyushhij silu Zakona ot 21.12.1995 g. Tipovoe polozhenie o komissii po zashhite prav nesovershennoletnix. Utverzhdeno postanovleniem Pravitel'stva RK ot 17 iyunya 2001 g Ukaz Prezidenta, imeyushhij silu Zakona «Ob organax vnutrennix del RK» ot 21 dekabrya 1995 g Ukaz Prezidenta, imeyushhij silu Zakona «O prinuditel'nom lechenii bol'ny'x alkogolizmom, narkomaniej i toksikomaniej» ot 7 aprelya 1995 g. Polozhenie o poryadke proxozhdeniya gosudarstvennoj sluzhby'. Utverzhdeno Ukazom Prezidenta Ukazom Prezidenta RK ot 10 marta 2000 g. Pravila o nalozhenii disciplinarny'x vzy'skanii na politicheskix gosudarstvenny'x sluzhashhix. Utverzhdeno ukazom Prezidenta ot 29 dekabrya 2000 g. Pravila o nalozhenii disciplinarny'x vzy'skanii na administrativny'x gosudarstvenny'x sluzhashhix. Utverzhdeno ukazom Prezidenta ot 29 dekabrya 2000 g. Pravila v»ezda i preby'vaniya inostranny'x grazhdan v RK, a takzhe vy'ezda iz RK ot 28 yanvarya 2000 g. O gosudarstvennoj registracii yuridicheskix lic. Ukaz Prezidenta, imeyushhij silu Zakona ot 17 aprelya 1995 g.
40. Ob uporyadochenii gosudarstvenny'x kontrol'ny'x i nadzorny'x funkcii. Ukaz Prezidenta RK ot 7 sentyabrya 1999 g. 41. Pravila kontrolya, dosmotra ruchnoj kladi, bagazha, gruzov, pochty', bortpitaniya e'kipazha vozdushnogo sudna i lichnogo dosmotra passazhirov. utverzhdeny' postanovleniem pravitel'stva RK ot 10 iyulya 1996 g. 42. Instrukciya o poryadke podgotovki soglasovaniya proektov normativnopravovy'x aktov Pravitel'stva i prem'er-ministra i pravilax ix oformleniya. Utverzhdeny' postanovleniem pravitel'stva RK ot 22 iyulya 1998 g. 43. Polozhenie o poryadke soglasovaniya, naznacheniya na dolzhnost' i osvobozhdeniya ot dolzhnosti rukovodyashhix dolzhnostny'x lic central'ny'x i mestny'x gosudarstvenny'x organov RK. Utverzhdeno rasporyazheniem Prezidenta RK ot 3 noyabrya 1999 g. 44. O zashhite prav grazhdan i yuridicheskix lic na svobodu predprinimatel'skoj deyatel'nosti. Ukaz Prezidenta RK ot 27 aprelya 1998 g. 45. Reglament Pravitel'stva RK Utverzhden postanovleniem Pravitel'stva RK ot 20 maya 1999 g. 46. Instrukciya po primeneniyu KoAP RK. Mezhvedomstvennoe soglashenie ot 17 fevralya 2001 g.
Introduction ............................................................................................... 3 Theme 1. Concept and stages of development of emergence of administrative law ................................................................................ 6 Theme 2. Subject, sources and methods of administrative law ................. 10 Theme 3. Administrative and legal norms ................................................ 14 Theme 4. Administrative and legal relations ............................................ 17 Theme 5. Administrative and legal status of the president ........................ 21 Theme 6. The government – highest executive authorities ....................... 26 Theme 7. Central executive authorities ..................................................... 32 Theme 8. Local executive authorities ....................................................... 42 Theme 9. Subjects of administrative law: natural and legal entities ......... 54 Theme 10. Public service ........................................................................... 66 Theme 11. Administrative and legal status of public servants ................... 75 Theme 12. Forms and methods of public administration .......................... 97 Theme 13. Administrative coercion .......................................................... 105 Theme 14. Administrative responsibility .................................................. 108 Theme 15. Production on cases of administrative offences ...................... 124 Passport of the discipline .......................................................................... 140 Exam questions ......................................................................................... 146 Practical tasks ........................................................................................... 148 Bibliographic list ....................................................................................... 150
Ospanova Djamilya Azizkhanovna Smanova Akmaral Bahtyarovna ADMINISTRATIVE LAW OF REPUBLIC OF KAZAKHSTAN Educational manual
Typesetting and cover design G. Кaliyeva IB №11736 Signed for publishing 26.02.2018. Format 60x84 1/16. Offset paper. Digital printing. Volume 9,75 printer’s sheet. 80 copies. Order №743. Publishing house «Qazaq University» Al-Farabi Kazakh National University KazNU, 71 Al-Farabi, 050040, Almaty Printed in the printing office of the «Qazaq University» publishing house.