The procedure for conducting inspections by regulatory authorities

In accordance with the current legislation of the Republic of Kazakhstan, the activities of business entities are subject to mandatory control and supervision in order to prevent violations of consumer rights, in turn, in order to protect the rights of individual entrepreneurs and legal entities, there is a mechanism for monitoring the actions of regulatory authorities, which is regulated by the Law of the Republic of Kazakhstan “On State Control and Supervision in the Republic of Kazakhstan” dated January 06, 2011 No. 377-IV (hereinafter referred to as the Law), which is aimed at establishing uniform principles for the implementation of control and supervisory activities, as well as the general legal framework for state control and supervision.

It is worth noting the following principles of control and supervision in accordance with the Law: the presumption of good faith of an individual or legal entity, the professionalism and competence of officials of state bodies, the priority of preventing an offense over punishment, encouraging bona fide inspected subjects, concentration of control and supervision on violators, accountability and transparency of the state control system and supervision.

Control is divided into internal and external control:

• Internal control – control exercised by a state body over the execution of its structural and territorial divisions, subordinate state bodies and organizations of the decisions taken by the state body, as well as the requirements of the legislation of the Republic of Kazakhstan. The procedure for conducting internal control is determined by the Law.
• External control – control carried out by the body of control and supervision to check and monitor the activities of the audited entities for compliance with the requirements for the activities of the audited entities.

The procedure for conducting external control is determined by Article 10 of the Law.

Based on the results of external control, in case of detection of violations of the legislation of the Republic of Kazakhstan, state bodies, within their competence, initiate administrative, disciplinary proceedings or initiate relevant statements of claim within their competence and (or) take other measures provided for by the laws of the Republic of Kazakhstan.

Supervision consists in the application by an authorized state body of law-restrictive prompt response measures without initiating administrative proceedings.

Legal restrictive measures of prompt response are provided for by the laws of the Republic of Kazakhstan and are applied by state bodies in the event that the activity, product (work, service) of the inspected entity poses a direct threat to the constitutional rights, freedoms and legitimate interests of individuals and legal entities, life and health of people, the environment, national security of the Republic of Kazakhstan.

Surveillance is subdivided into:

1) supreme supervision, carried out by the prosecutor’s office on behalf of the state in accordance with the Constitution of the Republic of Kazakhstan, the Law of the Republic of Kazakhstan “On the Prosecutor’s Office” and other legislation of the Republic of Kazakhstan;

2) supervision carried out by authorized state bodies in the manner and on the terms established by this Law and other laws of the Republic of Kazakhstan.

Control and supervision over the activities of the inspected entities are carried out in the form:

1) inspections, the procedure for organizing and conducting which is determined by the Law;

2) other forms of control and supervision that are preventive and preventive in nature, unless otherwise provided by the Code of the Republic of Kazakhstan “On taxes and other obligatory payments to the budget” (Tax Code) and the Law of the Republic of Kazakhstan “On the National Bank of the Republic of Kazakhstan”, the procedure for organizing and the conduct of which is determined by the Law and other laws of the Republic of Kazakhstan.

When carrying out other forms of control and supervision with a visit, the bodies of control and supervision notify the bodies for legal statistics and special records at the location of the subject (object) being checked before they are carried out, except for cases of exercising other forms of state control in accordance with the tax legislation of the Republic of Kazakhstan.

Checking the audited entity is one of the forms of control and supervision carried out by the control and supervision bodies by performing one of the following actions:

1) visits to the inspected subject (object) by an official of the state body;

2) requesting the necessary information regarding the subject of verification, with the exception of requesting the necessary information when conducting other forms of control and supervision;

3) calling the audited entity in order to obtain information on its compliance with the requirements established by the legislation of the Republic of Kazakhstan in accordance with the Law.

It is prohibited to conduct inspections according to a special procedure for conducting inspections based on risk assessment, selective inspections in relation to small businesses, including micro-entrepreneurship, within three years from the date of state registration (except for legal entities established in the course of reorganization and successors of reorganized legal entities).

Control and supervision are carried out taking into account the distribution of the inspected subjects (objects) into four groups.

The first group includes inspected subjects (objects), in respect of which a special procedure for conducting inspections based on risk assessment, unscheduled inspections and other forms of control and supervision are applied.

The basis for the appointment of a special procedure for conducting inspections is a semi-annual schedule approved by the regulatory state body or local executive body.

By November 15 of the year preceding the year of inspections, and by April 15 of the current calendar year, regulatory state bodies and local executive bodies shall send draft semi-annual inspection schedules for approval to the authorized body for legal statistics and special records.

When semi-annual schedules of inspections of the same inspected subjects (objects) are established in projects, the draft schedules are returned by the authorized body for legal statistics and special accounting to regulatory state bodies and local executive bodies to exclude such subjects (objects) from the schedules of inspections or adjust the timing of their conduct. subject to the requirements of this article.

By December 10 of the year preceding the year of inspections, and by May 10 of the current calendar year, regulatory state bodies and local executive bodies send the approved semi-annual inspection schedules to the authorized body for legal statistics and special records for the General Prosecutor’s Office of the Republic of Kazakhstan to form a semi-annual consolidated schedule conducting inspections.

The form of submission of semi-annual schedules for conducting inspections is determined by the General Prosecutor’s Office of the Republic of Kazakhstan.

Amendments and additions to the semi-annual inspection schedules are not allowed.

The General Prosecutor’s Office of the Republic of Kazakhstan posts a semi-annual consolidated schedule of inspections on the official Internet resource of the General Prosecutor’s Office of the Republic of Kazakhstan by December 25 of the current calendar year and by May 25 of the current calendar year.

The second group includes inspected subjects (objects), in respect of which selective, unscheduled inspections and other forms of control and supervision are carried out.

To conduct a spot check, the control and supervision bodies conduct an analysis:

1) reporting submitted by private business entities;

2) the results of unscheduled inspections and other forms of control and supervision;

3) other information.

Regulatory state bodies develop and, together with the authorized body for entrepreneurship, approve acts concerning the criteria for assessing the degree of risk for the selection of inspected subjects (objects) during random checks, which are published on the official Internet resources of state bodies, except as provided for by the Code of the Republic of Kazakhstan ” On taxes and other obligatory payments to the budget” (Tax Code).

The third group includes inspected subjects (objects), in respect of which unscheduled inspections are carried out on the grounds provided for in paragraph 7 of Article 16 of the Law, and other forms of control and supervision.

The fourth group includes inspected subjects (objects), in respect of which only other forms of control and supervision are carried out without inspections.

Inspected subjects (objects) assigned to the second group may be transferred to the third group in cases and in the manner established by the laws of the Republic of Kazakhstan, if such inspected subjects have entered into civil liability insurance contracts to third parties.

Checks are divided into the following types:

1) checks carried out in a special order based on the degree of risk;

2) selective;

3) unscheduled.

Inspection carried out according to a special procedure is an inspection appointed by the control and supervision body on the basis of an assessment of the degree of risk in relation to a particular subject (object) being inspected in order to prevent and (or) eliminate an immediate threat to human life and health, the environment, the legitimate interests of individuals and legal entities, states.

Selective inspection – an inspection appointed by the body of control and supervision in relation to a particular subject (object) being inspected based on a risk assessment, based on the results of an analysis of reports, the results of other forms of control in order to prevent and (or) eliminate an immediate threat to human life and health, the environment , legitimate interests of individuals and legal entities, the state.

An unscheduled inspection is an inspection appointed by the body of control and supervision on specific facts and circumstances that served as the basis for the appointment of an inspection, in relation to a particular subject (object) being inspected, in order to prevent and (or) eliminate an immediate threat to human life and health, the environment, legitimate interests individuals and legal entities, the state.

According to the volume of checks, they are divided into:

1) complex;

2) thematic.

Comprehensive audit – verification of the activities of the audited subject (object) on a set of issues of compliance with the requirements established by the legislation of the Republic of Kazakhstan.

Thematic audit – verification of the activities of the audited subject (object) on certain issues of compliance with the requirements established by the legislation of the Republic of Kazakhstan.

The grounds for an unscheduled inspection are established by paragraph 7 of Article 16 of the Law.

At the same time, we note that unscheduled inspections are not carried out in cases of anonymous requests.

The audit is carried out on the basis of an act on the appointment of an audit by a state body.

In the act on the appointment of the check, the following are indicated:

1) number and date of the act;

2) the name of the state body;

3) last name, first name, patronymic (if any) and position of the person (persons) authorized to conduct the audit;

4) information about specialists, consultants and experts involved in the audit;

5) the name of the inspected subject or the surname, name, patronymic (if any) of the individual in respect of whom the inspection is scheduled, his location, identification number, area of ​​the territory.

In the event of an inspection of a branch and (or) representative office of a legal entity, the act on the appointment of an inspection shall indicate its name and location;

6) the subject of the scheduled inspection;

7) the term for the inspection;

8) legal grounds for conducting an audit, including regulatory legal acts, the mandatory requirements of which are subject to verification;

9) period under review;

10) the rights and obligations of the audited subject, provided for by the Law;

11) the signature of the person authorized to sign the acts, and the seal of the state body.

The act on the appointment of an inspection, with the exception of unscheduled inspections on compliance with the requirements in the field of safety and labor protection of the state labor inspectorate in the event of a threat to the life and health of employees, counter inspections carried out by state revenue authorities in accordance with the Tax Code of the Republic of Kazakhstan, is mandatory registered in authorized body for legal statistics and special records.

Registration of the act on the appointment of inspections is of an accounting nature and is used to form and improve departmental risk management systems.

The presence of registration of the act on the appointment of an inspection is not proof of the legality of such an inspection.

General information on the acts on the appointment of unscheduled inspections of compliance with the requirements in the field of safety and labor protection of the state labor inspectorate in the event of a threat to the life and health of workers, counter inspections carried out by state revenue bodies, in the context of private business entities, are quarterly transferred to the authorized body for legal statistics and special accounts.

The act on the appointment of an inspection by the body of control and supervision is registered before the start of the inspection in the authorized body for legal statistics and special records by submitting it to the territorial subdivision of the authorized body for legal statistics and special records at the location of the subject being inspected, including in electronic format.

The control and supervision body is obliged to notify in writing the audited subject of the start of the audit according to a special procedure for conducting audits based on risk assessment, random audit at least thirty calendar days before the start of the audit itself, indicating the timing and subject of the audit.

When conducting an unscheduled inspection, with the exception of cases provided for in subparagraphs 2), 3), 7) and 8) of paragraph 7, paragraphs 10 and 10-1 of Article 16 of the Law, the control and supervision body is obliged to notify the audited entity of the start of an unscheduled inspection at least than a day before the start of the inspection itself, indicating the subject of the inspection.

Officers of state bodies who arrived to inspect the facility are required to present:

1) an act on the appointment of an inspection with a mark on registration with the authorized body for legal statistics and special records;

2) service certificate;

3) if necessary, permission from the competent authority to visit sensitive facilities;

4) a medical permit, the presence of which is necessary for visiting objects, issued in the manner established by the authorized body in the field of healthcare;

5) checklist.

The beginning of the audit is the date of delivery to the audited subject of the act on the appointment of the audit.

In case of refusal to adopt an act on the appointment of an inspection or obstruction of the access of the official of the control and supervision body carrying out the inspection to the materials necessary for the inspection, a protocol is drawn up. The protocol is signed by an official of the control and supervision body carrying out the inspection and an authorized person of the subject being inspected.

An authorized person of the audited subject has the right to refuse to sign the protocol, giving a written explanation of the reason for the refusal. Refusal to receive an act on the appointment of an inspection is not grounds for canceling an inspection.

An audit can be carried out only by the official (persons) indicated in the act on the appointment of the audit. At the same time, the composition of the officials conducting the inspection may be changed by decision of the body of control and supervision, of which the inspected subject and the body for legal statistics and special records are notified before the start of participation in the inspection of persons not specified in the act on the appointment of the inspection, indicating the reason for the replacement. .

If it is necessary to simultaneously conduct an inspection of the inspected subject (object) by several bodies of control and supervision, each of these bodies is obliged to draw up an act on the appointment of an inspection and register it with the authorized body for legal statistics and special records.

If it is necessary to simultaneously conduct an inspection of several inspected subjects (objects) on the same range of issues by one body of control and supervision, this body is obliged to draw up an act on the appointment of an inspection for each inspected subject (object) and register it with the authorized body for legal statistics and special records , with the exception of a tax audit conducted on the following issues:

1) registration with the tax authorities;

2) availability of cash registers;

3) availability and authenticity of excise and accounting and control stamps;

4) availability and authenticity of accompanying invoices for alcohol

products, oil products and biofuels;

5) availability of a license;

6) availability of equipment (device) intended for the implementation payments using payment cards.

The term for the audit is set taking into account the scope of the work to be done, as well as the tasks set, and should not exceed five working days for micro-entrepreneurship entities, thirty working days for small, medium and large enterprises, as well as for audited entities that are not private entrepreneurship entities. days, with the exception of certain cases provided for in Article 20 of the Law.

If it is necessary to conduct special studies, tests, examinations, as well as in connection with a significant amount of verification, the period for conducting the verification can be extended only once by the head of the control and supervision body (or a person replacing him) for a period of not more than thirty working days, with the exception of certain cases when conducting a tax audit, provided for by the tax legislation of the Republic of Kazakhstan.

In the event of an extension of the inspection period, the state body without fail draws up an additional act on the extension of the inspection with registration with the authorized body for legal statistics and special records, which indicates the number and date of registration of the previous act on the appointment of the inspection and the reason for the extension.

The verification may be suspended once for a period not exceeding one month.

Notification of the audited subject of the suspension or resumption of the audit is made one day before the suspension or resumption of the audit with notification of the authorized body for legal statistics and special records.

Upon suspension or resumption of an inspection, an act on the suspension or resumption of an inspection shall be issued.

Re-inspection of the inspected subject, for which the inspection was suspended and not resumed within the time limits established in this article, is not allowed.

Based on the results of the inspection, an official of the control and supervision body draws up an act on the results of the inspection in two copies.

The act on the results of the check indicates:

1) date, time and place of drawing up the act;

2) the name of the control and supervision body;

3) the date and number of the act on the appointment of the inspection, on the basis of which the inspection was carried out;

4) last name, first name, patronymic (if any) and position of the person (persons) who conducted

verification;

5) the name or surname, first name, patronymic (if any) of the inspected

the subject, the position of the representative of the individual or legal entity present during the inspection;

6) date, place and period of the inspection;

7) information about the results of the audit, including the violations found, their

character;

7-1) the name of the checklist and paragraphs of the requirements for which

violations;

8) information about familiarization or refusal to familiarize with the act

representative of the audited entity, as well as persons present during the audit, their signatures or refusal to sign;

9) the signature of the official (persons) who conducted the inspection.

If available, certificates on sampling (sampling) of products, inspection of environmental objects, protocols (conclusions) of studies (tests) and examinations and other documents or their copies related to the results of the inspection are attached to the act on the results of the inspection, if any.

If there are comments and (or) objections based on the results of the audit, the head of a legal entity or an individual or their representatives shall state them in writing.

Comments and (or) objections are attached to the act on the results of the inspection, about which an appropriate note is made.

According to the violations identified as a result of the audit, if additional time and (or) financial costs are necessary, the audited subject has the right to provide information on the measures that will be taken to eliminate the identified violations no later than three working days, in the absence of objections, indicating the deadlines that are consistent with the head of the control and supervision body that conducted the inspection, unless otherwise established by the legislation of the Republic of Kazakhstan.

Inspected entities have the right to keep a book of visits and inspections. Officials of the bodies of control and supervision are obliged to make a record in the book of visits and inspections of the inspected subjects on the actions taken, indicating the names, positions and data set forth in the act.

Withdrawal and seizure of original accounting and other documents are prohibited.

The end of the inspection period is considered to be the day of delivery to the inspected subject of the act on the results of the inspection no later than the deadline for the end of the inspection specified in the act on appointment of the inspection.

Grounds for the invalidity of the audit

An inspection shall be deemed invalid if the inspection carried out by the body of control and supervision was carried out in gross violation of the requirements for the organization and conduct of inspections established by this Law.

The act of recognized invalid inspection cannot be evidence of violation by the inspected subjects of the requirements established by the legislation of the Republic of Kazakhstan.

Recognition of the check as invalid is the basis for the cancellation by a higher state body or court of the act of this check.

Consideration by a higher state body of the application of the audited subject to cancel the act due to the invalidity of the audit is carried out within ten working days from the date of filing the application.

Violation of the established term for consideration of such an application is decided in favor of the audited subject.

Substantial violations of the requirements of this Law include:

1) lack of grounds for conducting an audit;

2) the absence of an act on the appointment of an inspection;

3) non-compliance with the deadlines for notification of the inspection;

4) violation of the requirements of Article 23 of the Law regarding restrictions during the inspection;

5) violation of the time interval in relation to the previous inspection when scheduling a scheduled inspection;

6) non-submission to the audited subject of the act on the appointment of the audit;

7) appointment by state bodies of inspections on issues that are not within their competence;

8) conducting an audit without registering an act on the appointment of an audit in the bodies for legal statistics and special records, when such registration is required.

In case of violation of the rights and legitimate interests of the audited entities in the exercise of control and supervision, the audited entity has the right to appeal against the actions (inaction) of the relevant control and supervision body and (or) an official to a higher state body or to a court in the manner established by the legislation of the Republic of Kazakhstan.