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Subject: Bases of the financial law in the Republic of Kazakhstan
Plan:
- Financial activity of the state. The financial law of the Republic of Kazakhstan as the branch is right
- Budgetary law of the Republic of Kazakhstan
- Bases of the tax law of the Republic of Kazakhstan
- Legal regulation of the investment relations in the Republic of Kazakhstan.
Keywords: financial activity, taxes, investments.
1 . The main concepts of the financial law. The financial law — is set of the legal norms regulating the public relations, the states arising in the course of financial activity for ensuring uninterrupted implementation of its tasks and functions during each concrete period of its development. As form of existence of the financial right the financial legislation acts.
The financial law uses two methods of legal regulation: imperative and dispositive.
The system of the financial law consists of the General and Special parts. The general part of the financial law is presented by the following institutes: the financial device, legal bases of monetary system, management in the field of finance, financial planning, financial control, financial and legal responsibility. The special part of the financial right studies a structure of a financial system of the state.
Financial activity of the state is carried out only on the basis of the right as which the financial right acts. And the financial right represents set of rules of law. Therefore the financial rule of law is the basis on which the financial law is under construction. Financial rules of law are characterized by the following signs: express state and imperious command; are accepted by authorized body of the state, for example, adoption of the act establishing a tax, can be carried out only by Parliament; contain obligatory rules of behavior, are calculated on numerous application and are addressed to uncertain number of subjects; financial rules of law are established by the act of a certain legal form, for example, the tax can be imposed by only such legal act which has a law form; performance of financial rules of law is provided with the compulsory force of the state, including compulsory execution of the financial obligation to the state and involvement of the persons which have violated the financial law, to the established financial and legal, administrative and criminal liability.
Financial rules of law are subdivided into regulatory and guarding law.
As the obligatory subject of financial legal relationship the state (as a whole or represented by authorized body) acts. Material financial legal relationship mediate direct cash flow (object, money or liabilities). Organizational financial legal relationship mediate formation of monetary system of the state, its financial structures, systems of governing bodies in the field of finance, the organization and planning of processes of formation and distribution of the state monetary funds and the organization of their use, including control.
The monetary system is understood as the organizational forms which have developed historically and fixed by the national legislation of functioning of money in the country. The monetary system includes the following elements: official monetary unit, types of bank notes; currency issue order; mode of the currency address; organization of monetary circulation.
The financial device of the state includes: financial system of the state as set of the state monetary funds, system of financial bodies of the state and financial regulation. As a result the financial device consists of such links as the budgetary device, the bank device, the device of the decentralized finance, the structure of trust off-budget funds.
Financial planning — is process of drawing up, consideration, the statement and the organization of execution of financial plans. As object of financial planning the monetary fund always acts. Any financial plan represents the estimate of the income and expenses of the relevant monetary fund. Process of financial planning breaks up not some stages: drawing up draft of the financial plan; consideration of the financial plan; approval of the financial plan; organization of execution of the financial plan and control of this execution; summing up implementation of the financial plan.
Legal forms of implementation of financial planning are planned and financial acts in the form of laws, resolutions, decisions, orders etc. Legal feature of planned and financial acts is that circumstance that they possess signs both standard, and individual legal acts.
Financial control represents quite difficult organizational system and consists of the following elements: subject, object, subject, purposes and control methods. As subjects of financial control the bodies of the state allocated with the corresponding powers of authority for control act, or the non-state actors operating for and on behalf of the state, whose powers of authority evolve from this assignment. The body or the person, making check on the relation of checked object, acts as the subject.
Objects of the state financial control are the state legal entities, non-state legal entities and citizens.
As subject of the state financial control the behavior of objects of this control from the point of view of observance of the duties by them as subjects of financial legal relationship acts. The purpose of financial control are: identification of the facts of violation of the financial legislation or low-quality execution by the participant of financial legal relationship of the duties; identification guilty and attraction them to the responsibility established by the legislation; elimination of violations of financial discipline and elimination of consequences of these violations.
Financial control — it always check or supervision for the purpose of check. Control consists of three stages: 1) collection of information; 2) assessment of collected information; 3) response to collected and analysed information.
Methods of financial control are understood as concrete receptions and ways of its implementation: check of calculations of financial plans (both already approved, and projects); analysis and calculating verification of reporting financial documentation (for example, statistical reports, balance sheets); verification of primary monetary documents (payment orders, commodity transport consignment notes, consignments, credit and debit warrants, etc.); inventory of money and inventory items; hearing and studying of reports and other messages; the analysis and synthesis of information arriving from law enforcement agencies and vessels; analysis and synthesis of performances of mass media and addresses of citizens; receiving written and oral explanations from the officials connected with production of financial operations; official inquiries in banking and other institutions; audit.
One of the main and most effective methods of financial control is audit. Audit — is the check of financial and economic activity based on studying of primary documents and accounting records. Usually audit is carried out in combination with other methods of financial control.
Completeness of coverage of audit happens: a) full when continuous inspection of complex character is made; b) partial when random inspection on a certain subject (for example is made, the expenditure of currency means) is checked.
Objects of check of audit are subdivided on: a) documentary when documentation is checked only; b) actual when inventory is carried out to addition of research of documents (miscalculate nature of inventory items, existence of money and securities is checked, control measurements in construction, etc. are carried out).
Organizational sign of audit is divided to: a) planned, that is what are carried out according to in advance approved plan; b) the unplanned. Both planned, and not planned audits for checked usually have nature of sudden check. The audits which are carried out on request of judicial investigative authorities belong to number of unplanned audits, in case of receipt of complaints inspiring trust and statements of citizens, and also receiving other signals of abuses and the rough violations of financial discipline demanding immediate check and the termination of violation of the financial legislation. Results of audit are made out by the audit act.
In the course of financial activity of the state, the financial law, there are two groups of the financial relations: material and organizational.
The material financial relations mediate cash flow, expressing processes of formation or distribution of the state monetary funds. These relations are connected with movement of concrete money or from the payer in this or that state fund, or, on the contrary, from fund to the recipient. The tax relations where the specific payer is obliged to transfer a certain sum of money of the relevant budget can be an example.
The organizational financial relations arise in connection with formation of monetary system of the country, a financial system of the state (definition of types of the state monetary funds and their appointment), control systems in the field of public finances (definition of government bodies to which implementation of financial activity of the state, establishment of their competence and a functioning order), the organization of financial planning, implementation of the state financial control is assigned.
These relations, without being economic, don't mediate cash flow as those. However they are intended to be an instrument for ensuring of normal functioning of the material financial relations. If the object of the latter is money, then the object of institutional financial relations is the very functioning of state-owned financial institutions.
2 . Budgetary law of RK. The budgetary law — is the section of Special part of the financial law of the Republic of Kazakhstan, regulating the relations arising in the course of the organization of the budgetary device, and also in connection with formation, distribution and the organization of use central and local budgets.
As subject of the budgetary law the public relations arising in the course of the budgetary activity of the state, i.e. the organizational and material budgetary relations act.
The budgetary law uses two methods of legal regulation: imperative and dispositive. The imperative method most distinctly proves at realization of such ways of the budgetary activity, as getting by the state of money by means of their unilateral and compulsory withdrawal. The dispositive method is applied to legal regulation of those budgetary relations which are credit by the economic nature (the relations of the state loan and the relation of the budgetary crediting).
The system of the budgetary law has two parts, they are allocated: The general and Special. The general part includes institutes: 1) budgetary device; 2) management in the field of finance; 3) legal bases of budget planning; 4) legal bases of the budgetary control. The special part includes institutes: 1) legal regulation of the income of the budget; 2) legal regulation of expenses of the budget; 3) legal regulation of the state credit. Norms of the General part of the budgetary right generally regulate the organizational budgetary relations, norms of Special part — the material budgetary relations.
For the budgetary legal relations there the following signs: 1) they arise in the course of the budgetary activity of the state, i.e. activities for formation of the budgetary device, and also in connection with formation, distribution and the organization of use central and local budgets; 2) are a product of legal regulation of the state public (economic and organizational) the budgetary relations; 3) as material object of the budgetary legal relationship money or the liabilities being means or formation of the budget, or its expenditure in the form of distribution act; 4) as the obligatory subject of material budgetary legal relationship acts or the state as a whole (if it is a question of the republican budget), or the corresponding administrative and territorial unit, presented by the appropriate government body or other person. State’s bodies can act as the independent subject of organizational budgetary legal relationship; 5) the budgetary legal relationship (both are materials, and organizational) have a state domineering character.
Management in the field of the budget — is institute of the General part of the budgetary law, representing set of the rules of law defining competence of public and territorial educations in the field of the budget, and also competences of the government bodies realizing this competence. The system of the bodies controlling in the field of the budget, doesn't form organizationally issued branch of public administration though the leading role of the Ministry of Finance in this sphere is rather obvious. The budgetary activity (more precisely, activity in the budget sphere) carry out to some extent the majority of government bodies as all of them anyway deal with the budget.
Principles of budget planning:
1) principle of an annually of the budget. It means that the budget (as the financial plan) is developed annually;
2) publicity and publicity of budget planning, especially at its such stages, as the adoption of the budget which is subject to the obligatory publication, and the approval of the report on its execution which also is published;
3) supremacy of representative bodies of the power in implementation of such stage of budget planning, as the adoption of budgets (both central, and local);
4) control of representative bodies of the state of performance of budgets as financial plans;
5) strict legislative regulation of all stages of budget planning;
6) preparation of the draft of the budget on a scientific basis, its reliability and validity;
7) the detailed study of the budget as financial plan, the maximum rapprochement of indicators of the act of the adoption of the budget with the actual realities of this plan i.e. that there was no situation when on paper — one, and in practice — absolutely another (as they say "two we write, three in mind"); 8) parliamentary control of issue of bank notes and of such methods of getting by the state of money, as domestic and external state loans.
In a practice of budget planning two concepts are met: "fiscal year" (or "fiscal year") and "the budgetary period" (or "the budgetary cycle"). Fiscal year means an interval of time during which the budget — the main financial plan of the state is executed. In the majority of the countries which number Kazakhstan treats also, fiscal year coincides with calendar year, i.e. lasts from January 1 to December 31 inclusive. The budgetary period - is an interval of time covering all stages of budget planning. The budgetary period begins from the moment of the beginning of work on drawing up the draft of the budget and comes to the end with the approval of the report on its execution.
Process of budget planning breaks up to some stages : a) drawing up draft of the budget; b) consideration of the draft of the budget; c) adoption of the budget; d) organization of budget performance and control of this execution; e) the conclusion of the budget that includes drawing up and the approval of the report on its execution.
As one of the directions of the budgetary activity, the budgetary control represents activity of representatives on that of government bodies (bodies of the budgetary control) on check of observance of an order of formation and distribution of budgets, and also legality and expediency of use of budgetary funds their recipients.
Depending on bodies exercising it the budgetary control can be subdivided into three look:
1) the budgetary control exercised by representative bodies;
2) the budgetary control exercised by executive bodies of the general competence;
3) the control exercised by specialized bodies of the budgetary control.
The main methods of the budgetary control are:
1) consideration of the draft of the budget and check of validity of the indicators put in it;
2) establishment of system of the reporting about performance of budgets and consideration of these reports;
3) check of use of the allocated budgetary funds about legality of the budget, observance of a target orientation, efficiency and rationality;
4) check of course of execution of the budget;
5) consideration and approval of reports on performance of budgets as implementation of stages of budget planning.
To control the budget performance the whole system of the state reporting. is installed Recipients of budgetary funds deliver reports on their use in the appropriate financial bodies, and also in higher bodies of management.
Depending on time of the implementation the budgetary control is subdivided on preliminary, current and the subsequent
In material sense the budget is the state monetary fund. According to item 2. Art. 4 of the Budgetary code of RK (further — BC of RK) of April 24, 2004 No. 548-I the budget — is the centralized monetary fund of the state intended for financial security of realization of its tasks and functions. This fund is intended for financing of tasks and functions of the state of a general meaning at the central level of a financial system of the state (the central budget) and local levels (local budgets). The budget is the main monetary fund and largest in total expression for all levels of a financial system of the state.
As the legal category — is the financial and legal act by which the financial plan of formation and distribution created on central and local levels of the state monetary fund intended for financing of nation-wide tasks and functions are approved.
The budgetary system of RK is made by set of budgets and the RK National fund, and also budgetary process and the relations. The budgetary process — is RK regulated by the budgetary legislation activities for planning, consideration, the statement, execution, specification, adjustment, maintaining the budgetary account and the reporting, the state financial control, and also for planning and use of the connected forfeits. The budgetary relations are the relations arising in the budgetary process.
There are the state and local budget. The state budget — the consolidated budget uniting republican and local budgets without mutually repayable operations between them, used as analytical information and not subject to the statement. The budget of the state consists of budgetary funds, i.e. these are money and other assets of the state, receipt in state ownership and which expenditure are reflected in the budget in a monetary form. The local budget — the regional budget, city budget of republican value, the capital, the area budget (the city of regional value).
Depending on amendment procedure the budget happens corrected, approved and specified. The corrected budget — the approved or specified budget taking into account changes and the additions made by the Government of RK or local executive bodies, without specification respectively in RK Parliament or in Maslihat.
The voted budget — the budget for the corresponding fiscal year approved by Parliament of RK or corresponding Maslikhat;
The specified budget — the voted budget for the corresponding fiscal year taking into account changes and the additions accepted by Parliament of RK or corresponding Maslikhat during its execution.
In the Republic of Kazakhstan there are following levels of the budget:
1) republican budget;
2) regional budget, city budget of republican value, capital;
3) the area budget (the city of regional value) and
4) in the cases established by BC of RK, can be developed, be approved and be executed the emergency state budget.
The republican budget is the centralized monetary fund formed at the expense of tax and other revenues, the defined BC of RK, and intended for financial security of tasks and functions of the central government bodies subordinated to them of public institutions and realization of the all-republican directions of a state policy. The republican budget for the corresponding fiscal year is approved by the Law of RK. The regional budget, city budget of republican value, the capital is the centralized monetary fund formed at the expense of tax and other revenues, the defined BC of RK, and intended for financial security of tasks and functions of local government bodies of regional level, the city of republican value, the capital, public institutions subordinated to them and realization of a state policy in the corresponding administrative and territorial unit. The regional budget, city budget of republican value, the capital for the corresponding fiscal year are approved by the decision Maslikhat’s areas, the cities of republican value, the capital.
The district budget (the city of regional value) is the centralized monetary fund formed at the expense of tax and other revenues, the defined BC of RK, and intended for financial security of tasks and functions of local government bodies of the area (the city of regional value), public institutions subordinated to them and realization of a state policy in the respective area (the city of regional value). The area budget (the city of regional value) for the corresponding fiscal year is approved by the decision of the Maslikhat (the city of regional value).
The emergency state budget is formed on the basis of republican and local budgets and entered in cases of the extraordinary or martial law into RK. The emergency state budget is developed by the central authorized body on budget planning and approved in an order established by the legislation of RK, the Decree of the President of RK. The basis for introduction and cancellation of the emergency state budget is the Decree of the President of RK about introduction and cancellation in all territory of RK of the extraordinary or martial law. For the period of action of the emergency state budget action of the law on the republican budget for the corresponding fiscal year and decisions of Maslikhats about budgets of all levels of the local budget for the corresponding fiscal year stops. The emergency state budget works during term for which the extraordinary or martial law is entered.
The RK national fund represents state assets in the form of the financial assets focused on the account of the Government of RK in the RK National Bank, and also in the form of other property, except for intangible assets. The RK national fund is intended for ensuring stable social and economic development of the state, accumulation of financial assets and other property, except for intangible assets, decrease in dependence of economy from raw sector and influence of adverse external factors. The RK national fund carries out savings and stabilization functions. Savings function provides accumulation of financial assets and other property, except for intangible assets. Stabilization function is intended for decrease in dependence of the republican budget from an environment of the world prices for raw material resources.
Formation and using of the RK National fund are defined with an environment of the world and domestic commodity and financial markets, an economic situation in the state and abroad, priorities of social and economic development of the republic with preservation thus macroeconomic and fiscal stability and observance of main objectives and RK National fund tasks. Receipt and expenditure of the RK National fund are made in national and foreign currency. The account and the reporting on operations of the RK National fund are carried out in national currency. Trust control by the RK National fund is exercised by the RK National Bank on the basis of the contract on the trust management, concluded between National Bank. Sources of formation of the RK National fund are: 1) official transfers from the republican budget, defined as excess of the actual receipts in the republican budget from the organizations of raw sector over their annual volumes approved by the law on the republican budget for the corresponding fiscal year; 2) official transfers from the republican budget, defined at the expense of receipts from privatization of the state property being in republican property and relating to mining and processing branches; 3) official transfers from the republican budget, counted of ten percent from the sums of receipts planned in the republican budget of the republican budget from the organizations of raw sector; 4) official transfers from the local budget, defined at the expense of receipts from sale of the land plots of agricultural purpose; 5) investment income from management of the RK National fund; 6) other receipts and the income which hasn't been forbidden by the legislation of RK.
Receipts from the organizations of raw sector -a set of receipts in the budget from the organizations of raw sector on the following types of tax: corporate income tax; value added tax; tax on excess profit; bonuses; royalty; RK share according to production section under the signed contracts.
The budget consists of receipt and expenses. Receipts of the budget are the income, repayment of the budgetary credits, receipts from sale of financial assets of the state, and also the state loans. Expenses of the budget are expenses, the budgetary credits, acquisition of financial assets, repayment of a principal debt on loans.
The structure of the budget consists of the following sections:
1) income: tax revenues; non-tax receipts; receipts from sale of fixed capital; receipts of official transfers;
2) expenses;
3) operational balance;
4) pure budgetary crediting: budgetary credits; repayment of the budgetary credits;
5) balance on operations with financial assets: acquisition of financial assets; receipts from sale of financial assets of the state;
6) deficiency (surplus) of the budget;
7) deficiency financing (surplus use) budget: receipt of loans; repayment of loans; movement of the remains of budgetary funds.
The income of the budget are tax and other obligatory payments, official transfers, the money, transferred to the state on the gratuitous basis, recoverability not having character and not connected with sale of financial assets the states which are subject according to the present Code and other acts of RK to transfer in the budget.
Transfers - are gratuitous and irretrievable payments in the budget and the RK National fund, and also from the budget, including to physical and legal entities, from the RK National fund in the budget.
A certain interest represents a question of a ratio of the concepts "budget" and "treasury". According to RK Group Art. 192 the state treasury of RK means of the republican budget make, a gold and exchange stock and diamond fund, the natural resources being in state ownership (the earth, its subsoil, waters, a plant and animal life, etc.), and other state property which hasn't been assigned to the state legal entities. The local treasury is made by means of the local budget and other municipal property which hasn't been assigned to the state legal entities. Thus, the budget is part of treasury (the republican budget - part of the state treasury of RK, local - part of local treasury) and generally expresses its monetary component. Therefore, in relation to the financial device of Kazakhstan concept "treasury" is wider than the concept "budget".
Surplus of the budget is an excess of total amount of receipts in the budget over the volume of expenses and the credits allocated on a returnable basis.
The budget deficit is an excess of volume of expenses and allocated of the budget on a returnable basis of the credits over total amount of receipts in the budget. The budget deficit is a negative factor, surplus is considered as the positive phenomenon as it testifies to financial wellbeing of the state and the normal organization of budget planning.
The budgetary activity represents one of the main directions of financial activity of the state. The budgetary activity — is state activity represented by authorized bodies on the organization of the budgetary device, and also on formation, distribution and the organization of use central and local budgets.
3 . System and types of tax in RK. Tax — the obligatory payment raised by the state from physical and legal entities. Taxes - one of the main sources of the income of the state budget. The main function of taxes fiscal since with their help material conditions of action of the state are created. Regulating function: taxes stimulate or constrain rates of development of economy. According to item 17 of Art. 10 of the Tax code of RK taxes are legislatively established by the state unilaterally obligatory monetary payments in the budget, made in the certain sizes, having irrevocable and gratuitous character.
Taxes arrive in the state budget. Therefore behind their receipt and use the state establishes control. Methods of tax control are: 1) state registration and maintaining accounting of taxpayers; 2) maintaining accounting of objects of the taxation; 3) maintaining the accounting of receipt in the budget; 4) carrying out tax checks; 5) carrying out cameral control; 6) monitoring of financial and economic activity of the taxpayer; 7) marking of separate types of excise goods; 8) control over authorized bodies.
Types of tax. Taxes can be classified by the various bases. Depending on the carrier of tax burden taxes can be direct and indirect. The direct tax — is a tax where his subject acts as the actual carrier of tax burden, i.e. payment of a tax leads to real reduction of its property. As example of such taxes income tax as a result of which payment the taxpayer loses part of the income acts.
Indirect tax — is a tax where his subject shifts his burden to other person acting as his actual payer (the tax carrier). As example of such tax the tax on a value added (VAT) and excises acts. Though as the legal payer of these taxes the seller of goods acts, finally they are paid by the buyer of goods as the sums of a tax join in the price of these goods paid by the buyer. In other words the sum of a tax is transferred by the taxpayer to other person.
Direct taxes can be subdivided on real and personal. Real taxes [from English real — the property] — is the property taxes (for example, the property tax, a tax on vehicles). Personal taxes — it is taxes on the income (profit) of the taxpayer.
Depending on a tax form they are subdivided on natural and monetary. At a natural tax as a subject of tax payment the things determined by patrimonial signs (usually — part of the reaped crop, got production) act. Monetary taxes (irrespective of object and a tax subject) are paid by money. Now it is a primary form of the taxation.
Depending on the subject of a tax they are subdivided into taxes on legal entities (on the western terminology — corporate taxes) and taxes on individuals (on the western terminology - individual taxes).
Depending on territorial level taxes are subdivided on nation-wide and local. The first are the income of nation-wide monetary funds (for example, in Kazakhstan - the republican budget), the second — the income of local budgets.
Depending on use as a method of the budgetary regulation taxes are subdivided on fixed and regulating. The fixed taxes — are what according to the legislation are assigned as a profitable source to a certain type of the budget. Regulating taxes — are what being fixed to certain budgets, in the course of the annual adoption of budgets are transferred to subordinate budgets for balancing of the last.
Depending on nature of use taxes can be general purpose and target. Taxes of general purpose (abstract taxes), being enlisted in the budget, are dissolved there in the mass of other budgetary income and are spent at budget performance without a binding to concrete actions. Target (special) taxes are used for financing of concrete actions. As example of a target tax the social tax acts.
By the method of calculation of the taxes they are divided on the accountant and non-accountant. When the accountant his tax amount (the so-called "salary tax") is established for each individual taxpayer's tax authority and the tax obligation arises only after the authority given to the payer of the relevant order (tax notice) with the calculated amount of tax. Non-accountant taxes are calculated and paid (of course, in terms of the tax legislation) by the taxpayer alone. Tax authorities only control over the completeness and timeliness of the calculation of the tax paying it.
According to TC of RK the taxes operating in the territory of Kazakhstan, are subdivided on direct and indirect. The VAT and excises belong to indirect taxes. Others treat straight lines.
According to Art. 60 of TC of RK the following types of tax are established: 1) corporate income tax; 2) individual income tax; 3) value added tax; 4) excises; 5) taxes and special payments of subsoil users; 6) social tax; 7) land tax; 8) tax on vehicles; 9) property tax.
Besides, in Art. 61 of TC of RK the following types of collecting are established: 1) charge for the state registration of legal entities; 2) charge for the state registration of individual entrepreneurs; 3) charge for the state registration of the rights to real estate and transactions with it, etc.
Taxes and fees are estimated and paid in tenge, except for cases when acts of RK and provisions of contracts on the subsurface use, concluded by the competent authority authorized by the Government of RK provided a natural form of payment and also when payment of taxes is carried out in foreign currency, according to acts of Kazakhstan.
Corporate income tax. According to RK Oil Company art. 77 legal resident persons of RK treat payers of corporate income tax, except for the RK National Bank and public institutions, and also the legal persons nonresidents carrying out activity in RK through continuous establishment or gaining income from sources in RK. Objects of taxation by corporate income tax, according to art. 78 of the Tax code, are the taxable income; the income assessed at a source of payment, and net income of the legal entity of the nonresident who is carrying out activity in RK through continuous establishment. Corporate income tax is estimated for the tax period (calendar year) by application of a rate of 30 percent to the taxable income.
Taxpayers pay corporate income tax by introduction of advance payments by equal shares during the tax period no later than the 20th day of the current month. The declaration on corporate income tax is submitted to tax authorities no later than March 31 of the year following the reporting tax period (except for the legal entities applying a special tax mode). On corporate income tax following the results of the tax period the taxpayer carries out final settlement no later than ten working days after March 31.
Individual income tax. According to art. 141 of the Tax code payers of individual income tax are the individuals having objects of the taxation.
Objects of taxation by individual income tax is the income assessed at a source of payment (the income of the worker, the income from single payments, the income in the form of dividends and other income determined by art. 146 of the Tax code and the income, free payments at a source (the property income, the taxable income of the individual entrepreneur and other income determined by art. 163 of the Tax code). Thus art. 144 of the Tax code defined the list of the income of the individuals who aren't subject to the taxation, in particular, the address social help, the alimony received on children, payments to the military personnel, the income from operations with the state securities and some other income.
4 . Legal regulation of investment activity. Subject of legal regulation of the investment right are the investment relations arising in the course of investment activity. The method of the investment right is characterized by that the content of legal relationship is defined by regulations and contracts including the international.
The rights and duties of participants of investment legal relationship are defined by contracts therefore for the investment right uniform distributions of the rights and duties between subjects are characteristic.
The system of the General part of the investment right includes the following legal institutes: state regulation of the investment relations; investment legal relationship; protection of an investment; investment contract and organizational and legal forms of investment activity.
Institutes of Special part characterize the investment right in operation and settle down in logical sequence depending on a role and value of the adjustable relations, namely: investment activity; licensing; taxation; management of investments; investment tools; crediting; investment project; insurance of investment risks; separate types of investments; types of investment contracts; concession agreements; contracts of a bank loan; leasing contracts; obligations in the sphere of investment activity; pre-judicial, judicial and other forms of permission of investment disputes; responsibility for violations of the investment legislation.Special institutions are often characterized by the investment law in action and arranged in a logical sequence, depending on the role and importance of regulated relations, namely: investment activities, licensing, taxation, investment management, investment instruments, financing, project investment, insurance investment risks in certain types of investments , types of investment contracts, concession contracts, bank loan agreements, leases, commitments in the areas of investment, pre-trial, judicial and other forms of resolving investment disputes; responsible for violations of the investment law.
Lecture 12.
Subject: Labor law of the Republic of Kazakhstan
Plan:
- Fundamentals of labor law and social security law. The subject, the method and system of labor law. The principles of labor law. Labor legislation of the Republic of Kazakhstan. The subjects of labor law.
- Individual employment contracts. The collective labor agreement. Working hours and rest periods. Social partnership in the field of labor relations. The legal relations on employment and employability.
- Salaries. Occupational safety and health. Responsibility for violation of labor laws.
- Relationships on Social Security. Old-age pension, superannuation, disability pension, survivor’s pension.
Keywords: labor relations, labor contract, salary, pension.
Employment law - is the branch of law that regulates labor relations arising in the implementation of the citizens' constitutional right to freedom of labor between the employer and the employee regarding the implementation of certain parties to work on the basis of individual, collective and other agreements.
The main source of employment law is the Law of the Republic of Kazakhstan "On labor in the Republic of Kazakhstan" dated December 10, 1999. Labor regulations are the same and in other acts of labor laws such as the Law of the Republic of Kazakhstan on collective agreements on July 4, 1992, the Law of the Republic of Kazakhstan on labor protection January 22, 1993., Trade Unions Act of April 9, 1993., and others that apply to the extent that they do not contravene the law "On labor in the Republic of Kazakhstan."
The Law of the Republic of Kazakhstan "On labor in the Republic of Kazakhstan" contains 109 articles, which are grouped into 12 chapters covering general provisions of the individual labor contract, collective agreement regulating labor relations of certain categories of employees, working time, rest periods, wages and rationing of labor, guarantees and compensation payments to employees, the liability side of the employment contract on incentives and punishment of employees, labor disputes and monitoring with observance of the Law "On Labor in the Republic of Kazakhstan."
Everyone has an equal opportunity to exercise their labor rights. No one can be restricted labor rights or receive any benefits in their implementation, depending on gender, age, race, nationality, language, property and official status, place of residence, religion, creed, citizenship, membership of public associations and other circumstances not related to the professional qualities of the results of his labor.
The law "On labor in the Republic of Kazakhstan" sets minimum standards for labor relations, which can and should be changed in the direction of improvement in the individual labor, and (or) the collective agreement. The working conditions of certain categories of employees, which are regulated by other laws and regulations can not be lower than the standards set in the law "On labor in the Republic of Kazakhstan."
Conditions of the employment, collective agreements are binding upon the parties, if they do not conflict with the law. The collective agreement is a legal document, issued in the form of a written contract, signed by one or more employers (or their representatives) and one or more trade unions or workers who are not members of a trade union that formed their own organization to negotiate.
Individual employment contract - is a bilateral agreement between the employee and the employer, shall be in writing form under which the employee agrees to perform work on a particular specialty, qualification or position with the execution of acts of the employer, and the employer is obliged to timely and full payment of employee wages and other, prescribed by law and agreement of the parties, payment, ensure working conditions stipulated by labor legislation and collective agreement. Individual employment contract may be concluded: a) for a specified period, b) an indefinite period, c) the duration of the particular job, or for the replacement of a temporarily absent employee. If the individual employment contract does not specify the validity period, the contract is concluded for an indefinite period. Conclusion of the individual employment contract shall be permitted to persons under sixteen. With the consent of a parent (guardian, trustee) individual employment contract may be awarded to students who have attained the age of fourteen, to do the work in their free time are not harmful to health and does not disrupt the learning process. Also, the individual employment contract, with the consent of the parents may be concluded with persons who have attained the age of fifteen, when they received a secondary education. The consent of the parents (or guardians) is given in writing form (application), and the parents (guardian, trustee), along with a minor sign individual employment contract.
Individual employment contract shall be in writing form, in duplicate and signed by the parties, a copy sent to the employee. Starting the job functions the employee is the date of the start of work specified in the contract, and in the absence and (or) not duly registered individual contract by the employer of the individual employment contract begins with the actual admission to work. After the conclusion of the employment contract, the employer is obliged to issue an order for the admission of an employee to work, which brought him a receipt.
The employee has the right to enter into agreements with several individual employment contracts that provide part-time working. For the conclusion of the employment contract, the employer has the right to demand proof of career employee ID card (passport), proof of social individual code, pension agreement, the birth certificate for persons under sixteen years of age, certificate of education or training, and other documents provided for by law.
Documents confirming the employee's labor activity may include: employment history (if available) or an individual employment contract, or an extract from the orders of admission or dismissal.
Individual employment contract may be terminated:
1) upon the expiration, 2) due to circumstances beyond control of the parties,
3) when an employee is called up for military service, 4) upon entry into force of the verdict, 5) in the event of death of the employee, 6) if a court employee incapable or limitedly capable.
Individual employment contract may be terminated:
1) the parties agree, the base of which is the written consent of the employee and the employer.
2) on the initiative of one of the parties:
3) by the employer:
4) the liquidation or termination of the legal entity;
5) reduction of the number of workers or staff;
6) due to the mismatch of the worker of position or work;
7) due to poor training, or health status; absence from work for more than two months due to temporary disability, except for the legislation to establish a long-term disability is not on this disease;
8) the employee's refusal to be transferred to another location together with the organization;
9) for employee refuses to transfer to an easier job with pay;
10) failure to continue working due to changes in labor conditions; repeated failure employee without good cause job duties if he has disciplinary action;
11) single gross violation of their labor worker responsibilities;
12) guilty of committing acts of employees directly serving the financial or commodity values, if these actions give rise to loss of credibility on the part of the employer;
13) the commission of an employee performing educational functions in education sphere immoral act incompatible with the continuation of this work;
14) the disclosure entrusted to it in accordance with individual contract information constituting a state, official, commercial or other secret protected by law;
15) the employee's refusal to work in the event of a temporary transfer to another
in the case of idle operation,
16) restoration of a court decision on the employee's work previously performed this work.
17) by the employee who is required per month written notice of the employer, the termination of the employment contract. By agreement of the parties, the contract may be terminated prior to the expiration of the notice period. If circumstances preclude or significantly impede the continuation of work (health, retirement age, moving to another locality, late payment of wages and other terms and conditions), the termination of the employment contract is made within the period specified in the request of the employee.
18) on other grounds which stipulated by legislative acts.
Law "On Labour in the Republic of Kazakhstan" regulates labor relations of certain categories of workers, taking into account the specific nature of their work. These include seasonal workers, domestic workers, home workers, working in shifts, and other categories of workers, whose relations with employers regulated by individual contract of employment and labor laws.
Working hours are the time during which an employee is in accordance with the terms of the employment contract must comply with work obligations. Normal working hours shall not exceed 40 hours per week. The five-day or six-day working week is established by the employer, the terms of employment or collective agreement.
In the daily work of the employee must be given a break for the rest and meal period for not less than one hour in total. This break in the working time is not included and is used by an employee for any reason.
Working under the individual employment contract is guaranteed annual paid leave with job (position) and the average wage. Payment of the leave is made not later than three calendar days prior to the meeting. Annual paid leave is granted to employees of not less than eighteen calendar days, unless otherwise provided by other regulations for certain categories of workers, self-employment, collective agreements and the acts of the employer.
Wages – is a reward (income) for work in accordance with its complexity, quantity and quality. Work of employees paid time basis, by the piece or by any other system of payment. Payment may be made for individual and (or) the collective results of labor. The wages are determined by the employer on their own and can not be lower than the laws of the Republic of Kazakhstan of the minimum wage.
For violation of labor discipline, that is, for non-performance or improper performance of the fault of the employee assigned to it work duties the employer may apply the following disciplinary actions: 1) observation, 2) a reprimand, 3) the termination of the employment contract on the basis of the Law "On Labor the Republic of Kazakhstan".
Labor disputes are considered by the parties of the Conciliation Commission or the courts. Workers when applying to the court for claims arising from the employment relationship shall be exempt from payment of the fees and costs associated with the proceedings. Control over compliance with labor laws and working conditions carried out by state labor inspectors authorized state body for labor.
Lecture 13.
Topic: Criminal Law of the Republic of Kazakhstan
Plan:
- The basics of Criminal Law of the Republic of Kazakhstan. The concept, objectives, and the Criminal Law of the Republic of Kazakhstan. The principles of criminal law. Sources of criminal law. The concept of criminal law and its importance. The structure of the criminal law.
- Definition and elements of a crime. Classification of crimes. The concept and the basis of criminal responsibility. The offense. Circumstances precluding criminality. Stage of the crime. Complicity in the crime. The concept and purpose of the punishment.
- Fighting corruption in Kazakhstan.
Keywords: criminal law, crime, criminal responsibility, and corruption.
Criminal law is the branch of law, which is the body of law established by law, which defines the criminal act and guiltiness, as well as the grounds of criminal responsibility and exemptions.
The objectives of the criminal law are: the protection of the rights, freedoms and legitimate interests of citizens, property, rights and legitimate interests of organizations, public order and safety, the environment, and the constitutional order and territorial integrity of the Republic of Kazakhstan, the legally protected interests of society and the state from criminal protection of the peace and security of mankind, and the prevention of crime.
The only source of criminal law is the Criminal Code of the Republic of Kazakhstan which was adopted on the 16th of July 1997 and entered into force from the 1st of January 1998.
Crime - this is the socially dangerous act prohibited by the criminal code under threat of punishment. Criminal law distinguishes four element of a crime: a public danger, illegality, guilt and threats of punishment. Criminal law, depending on the nature and degree of social danger is divided into four categories: minor offense, less serious crime, violent crime and serious crimes.
Criminal responsibility sets in from 16 years. For some of the crimes of criminal responsibility is with the age of fourteen . The list is provided in the Criminal Code . These crimes : murder , intentional infliction of grievous bodily harm, intentional infliction of moderate bodily harm, aggravated rape, sexual assault, kidnapping, burglary, robbery, extortion, unlawful seizure of a car or other vehicle without a purpose of stealing, aggravated assault, intentional destruction or damage of property under aggravating circumstances, terrorism, knowingly false information about an act of terrorism, theft or possession of weapons, ammunition, explosives and explosive devices, aggravated hooliganism, vandalism, theft or extortion of narcotic drugs or psychotropic substances desecration of the dead bodies and their burial places aggravated intentional bringing into disrepair vehicles or means of communication.
In some cases, due to the construction of the Criminal Code criminalizes can occur later in life (for example, criminal liability for military offense comes with the age of eighteen years).
Criminal liability is carried out in the framework of criminal legal relations that govern social relations between the offender and the state. There is a criminal matter from the time of the crime.
The offense - a set of established criminal law features that characterize a specific socially dangerous act is a crime.
The features that characterize the crime divided into 4 groups : the object , the objective side, the subject , the subjective side: a) the object of the crime is public relations , protected by the criminal law, a crime which causes or is likely to cause substantial harm, b ) to the objective side of the crime is characteristic of the action (action or inaction), the consequences of the act , i.e., the damage caused by the crime, and some of the features that characterize the outside of the crime (place, time, method , tools , etc., c) of the offense - is the mental activity persons directly connected with the commission of a crime and is an organic unity of motives , intelligence and will of a criminal, legal attributes of a wine, the motive and purpose, d) the offender can only be a natural person who has reached a certain age, is able to account for their actions and to lead them.
Circumstances precluding the wrongfulness of criminal and socially dangerous acts are socially useful and legitimate. In the criminal law has 6 such circumstances. It is a necessary defense, the damage caused during the arrest of the person who committed the assault, extreme necessity, a reasonable risk of physical or mental abuse, pursuant to an order or orders.
It is not a crime to cause harm to an attacker in self-defense, that is, in the protection of their persons, houses, property, land and other rights of defendant or other persons legally protected interests of society or the state of socially dangerous assault by causing damage to the attacker, if this were not exceeded the limits of self defense.
It is not a crime to cause harm to a person who committed a crime in his arrest for delivering public bodies and suppress him from committing new attacks if other means to detain such person is not possible, and at the same time there had been a surplus of the necessary measures.
It is not a crime to cause harm to protected interests of the Penal Code in a state of emergency, that is to eliminate the imminent danger to life, health, rights and lawful interests of that person or other persons, to the interests of society or the state, if this danger could not be eliminated by other means and thus not to exceed the limits of extreme necessity.
It is not a crime to cause harm to protected interests under the Code of Criminal grounded risk to achieve the public but useful purpose.
It is not a crime to cause harm to protected interests of the Criminal Code as a result of duress, coercion if the result of such a person could not control his actions (or inactions).
It is not a crime to cause harm to protected interests of the Code of Criminal person acting pursuant to a binding order or instruction. Criminally responsible for causing such harm is a person who gave an illegal order or instruction.
Punishment - it is a measure of state coercion, appointed by a court. The penalty applies to a person convicted of a crime, and is under the Criminal Code deprivation or restriction of the rights and freedoms of the individual.
The penalty is applied in order to restore social justice, as well as fix and prevent convicted of new crimes as convicts, and others. Punishment is not intended to cause physical suffering or humiliation of human dignity.
The system at the head of sentences is a comprehensive and mandatory list for the courts, the list of punishments arranged depending on the severity of which can be assigned to a person convicted of a crime.
The new Penal Code provides the following key sentence: a fine, deprivation of the right to occupy certain positions or engage in certain activities, community service, corrective labor, restriction in military service, restriction of liberty, arrest, detention in a disciplinary military unit, imprisonment, death penalty .
Besides the primary punishments can be applied the following additional penalties to convicts: loss of a special, military or honorary title, class rank, diplomatic rank, qualification classes of state awards; confiscation of property.
Fine and deprivation of the right to occupy certain positions or engage in certain activities can be used as both primary and additional penalties.
A person convicted of a crime shall be appointed a just punishment.
In imposing sentence, the nature and degree of social danger of the crime, the identity of the perpetrator, including his behavior before and after the crime, the circumstances aggravating and mitigating liability and punishment, and the impact of the sentence on the correction of the convict and the living conditions of his family or persons who are dependent on him.
In imposing the punishment recognized by the mitigating circumstances: the commission of a minor offense for the first time as a result of chance, a minority of the offender , pregnancy , presence of young children at the culprit, medical and other assistance to the victim immediately after the commission of the crime , voluntary compensation for material and moral damages caused to the as a result of a crime, other actions aimed at smoothing the harm caused by the crime commission of a crime as a result of a confluence of difficult personal, family, or other circumstances or on compassionate grounds, a crime as a result of physical and psychological coercion or because of material, service or other dependence, the commission crimes in violation of the conditions of necessary defense, emergency, arrest the perpetrator, justified risk of execution of an order or orders; illegal or immoral behavior of the victim, who appeared to cause offense, sincere repentance , acknowledgment of guilt, active contribution to solving the crime, exposure of other partners crime and the tracing of property obtained by crime.
The list of mitigating circumstances is not exhaustive. The court may take into account other circumstances that mitigate the social danger of the offense.
In imposing the punishment, the circumstances aggravating recognized , repeated crimes , crimes relapse ; causing offense of grave crimes commission of a crime in a group of persons , groups of persons by prior conspiracy, an organized group or criminal community (criminal organization ), a particularly active role in the commission of the offense; involvement in the offense of persons who known to be suffering from a severe mental disorder , or persons under the age at which criminal responsibility , a crime motivated by ethnic, racial or religious hatred or enmity, in revenge for the lawful actions of others, and also to conceal another crime or facilitating its commission of a crime against a woman known to be in a state of pregnancy, and against young children or other defenseless or helpless person who is dependent on the guilty commission of a crime against a person or his close to the performance of the person of the service , professional or public debt, a crime with particular cruelty , sadism , humiliation and torture of the victim , an offense involving weapons , ammunition , explosives or mimic their devices specially manufactured hardware , flammable and combustible liquids , toxic and radioactive substances , pharmaceuticals and other chemical and pharmaceutical products , as well as the use of physical or psychological coercion or generally dangerous method , a crime with a state of emergency , natural disaster or other public as well as in the riots commission of a crime in a state of alcoholic , narcotic or toxic intoxication . The court may, depending on the nature of the crime does not recognize it as an aggravating circumstance, the person committing the crime, thereby violating their oath adopted or professional oath, committing crimes with confidence given to the offender by virtue of his official position or contract, committing a crime using uniform or documents of a representative government.
The special part of criminal law consists of 16 chapters, which provides for the crime: against the family and minors against the constitutional and other rights and freedoms of man and citizen, against the peace and security of mankind, against the constitutional order and security of the state, against property, crimes in the sphere of economic activity against the interests of service in commercial and other organizations against public security and public order, against public health and morals, environmental crime, traffic offenses against the interests of the public service, against public order, against justice and the order of execution of punishments, military crimes.
Lecture 14.
Topic: Environmental Law of the Republic of Kazakhstan
Plan:
- Environmental Law of the Republic of Kazakhstan as a complex body of law of the Republic of Kazakhstan.
- Concept and subject of environmental law. The legislation on the environment. The land legislation of the Republic of Kazakhstan. The legislation on mineral resources. The forest legislation of the Republic of Kazakhstan.
- Environmental and legal status of a person. Ownership of natural resources. The right of nature. Legal basis of environmental management and environmental protection.
- Legal basis of information management of natural resources and environmental protection. Features of the legal regime of natural resources.
- Legal liability for environmental offenses.
- Basic Land Law of the Republic of Kazakhstan.
Keywords: legislation on the environment, natural resources, land relations.
The concept and the subject of environmental law. The legislation on the environment. The land legislation of the Republic of Kazakhstan. The legislation on mineral resources. The forest legislation of the Republic of Kazakhstan. Ecological and legal status of a person. Ownership of natural resources. The right of nature. Legal basis of environmental management and environmental protection. Legal basis of information management of natural resources and environmental protection. Features of the legal regime of natural resources. Legal liability for environmental offenses.
1. Environmental law as a complex body of law of the RK. Environmental law - is an independent branch of Kazakhstani law, which is designed to study the activity of the state in the field of legal regulation of natural resources and environmental protection. The subjects of environmental law are the social relations in the sphere of interaction between society and nature.
Ecological and legal control method is shown through mandatory and permissive approaches to establish responsibilities and the legal status of entities.
The general part includes the concept of environmental law, subject, technique, principles, sources of environmental law, the right of ownership o