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JOINT ORDER OF THE MINISTER OF JUSTICE OF THE REPUBLIC OF KAZAKHSTAN AND MINISTER OF NATIONAL ECONOMY OF THE REPUBLIC OF KAZAKHSTAN

of April 22, 2019 No. 218, on April 29, 2019 No. 31

About approval of criteria for evaluation of risk degree and checking sheets of organization activity, managing directors of property rights on collective basis

According to Item 3 of Article 141 and Item 1 of article 143 of the Entrepreneurial code of the Republic of Kazakhstan of October 29, 2015, article 22-1 of the Law of the Republic of Kazakhstan of March 18, 2002 "About judicial authorities" PRIKAZYVAYEM:

Approve:

1) criteria for evaluation of degree of risks of organization activity, managing directors of property rights on collective basis, according to appendix 1 to this joint order;

2) checking leaf of organization activity, the managing directors of property rights on collective basis accredited in spheres of management of copyright according to appendix 2 to this joint order;

3) checking leaf of organization activity, the managing directors of property rights on collective basis accredited in spheres of management of the related rights according to appendix 3 to this joint order;

4) checking leaf of organization activity, the managing directors of property rights on collective basis accredited in the sphere of implementation of the rights of authors, contractors, producers of soundtracks and audiovisual works on receipt of remuneration for reproduction of soundtracks and audiovisual works for personal reasons and without income acquisition according to appendix 4 to this joint order;

5) checking leaf of organization activity, the managing directors of property rights on collective basis accredited in the sphere of management of copyright and the related rights according to appendix 5 to this joint order.

2. To provide to department on intellectual property rights of the Ministry of Justice of the Republic of Kazakhstan:

1) state registration of this joint order;

2) within ten calendar days from the date of state registration of this joint order the direction it in the Kazakh and Russian languages in the Republican state company on the right of economic maintaining "Institute of the legislation and legal information of the Republic of Kazakhstan" the Ministries of Justice of the Republic of Kazakhstan for official publication and inclusion in Reference control bank of regulatory legal acts of the Republic of Kazakhstan;

3) placement of this joint order on official Internet resource of the Ministry of Justice of the Republic of Kazakhstan.

3. To impose control of execution of this joint order on the supervising vice-Minister of Justice of the Republic of Kazakhstan.

4. This joint order becomes effective after ten calendar days from the date of its first official publication.

Minister of Justice of the Republic of Kazakhstan

 

M. Beketayev

Minister of national economy of the Republic of Kazakhstan

 

R. Dalenov

It is approved

Committee on legal statistics and special accounting of the Prosecutor General's Office of the Republic of Kazakhstan

 

Appendix 1

to the Joint Order of the Minister of Justice of the Republic of Kazakhstan and the Minister of national economy of the Republic of Kazakhstan of April 22, 2019 No. 218, on April 29, 2019 No. 31

Criteria for evaluation of degree of risks of organization activity, managing directors of property rights on collective basis

Chapter 1. General provisions

1. These Criteria for evaluation of degree of risks of organization activity, managing directors of property rights on collective basis, (further - Criteria) are developed according to Item 3 of article 141 of the Entrepreneurial code of the Republic of Kazakhstan of October 29, 2015 (further - the Code) and Rules of forming by the state bodies of system of risks assessment and form of checking sheets approved by the order of the acting minister of national economy of the Republic of Kazakhstan of July 31, 2018 No. 3 (it is registered in the Register of state registration of regulatory legal acts for No. 17371).

2. In these Criteria the following concepts are used:

risk - probability of damnification as a result of activities of the subject of control to legitimate interests of physical persons and legal entities taking into account severity of its consequences;

system of risks assessment - complex of the events held by control facility for the purpose of purpose of preventive control with visit of the subject of control;

objective criteria for evaluation of risk degree (further - objective criteria) - the criteria for evaluation of risk degree used for selection of subjects of control depending on risk degree of activities and which are not depending directly on the certain subject of control;

subjective criteria for evaluation of risk degree (further - subjective criteria) - the criteria for evaluation of risk degree used for selection of subjects of control depending on results of activities of the specific subject of control;

the checking sheet - the list of requirements including requirements imposed to activities of subjects of control which non-compliance involves threat to legitimate interests of physical persons and legal entities, the states;

the subject of control - the organizations managing property rights on collective basis (further - non-profit organization), Private Institution, Consolidation of legal entities, Republican public association according to the Law of the Republic of Kazakhstan of June 10, 1996 No. 6 "About copyright and the related rights".

Chapter 2. Methods of carrying out preventive control with visit of the subject of control

3. Criteria for preventive control with visit of the subject of control are created by means of objective and subjective criteria.

Paragraph 1. Objective criteria

4. Reference of subjects of control to high risk is performed depending on probability of damnification to legitimate interests of physical persons and legal entities, interests of the state as a result of activities of subjects of control.

5. By objective criteria the non-profit organizations, subjects of control performing activities in the following spheres of collective management treat subjects of control of high risk:

1) management of exclusive rights on promulgated pieces of music (with the text or without text) and fragments of musical and drama works concerning their public performance, the message for general data on cable or transfers to air, including by relaying;

2) implementation of the rights of the composers who are authors of the pieces of music (with the text or without text) used in the audiovisual work on receipt of remuneration for public performance or the message for general data on cable or transfer to air of such audiovisual work;

3) implementation of the rights of contractors to receipt of remuneration for public performance, and also for the message for general data on cable or transfer to air of the soundtracks published for commercial purposes;

4) implementation of the rights of producers of soundtracks to receipt of remuneration for public performance, and also for the message for general data on cable or transfer to air of the soundtracks published for commercial purposes;

5) implementation of the rights of the organizations of on-air and cable broadcasting to receipt of remuneration for public performance, and also for the message for general data on cable or transfer to air of own transfers published for commercial purposes;

6) management of the following right concerning the work of the fine arts;

7) management of the rights to reproduction (reprographic reproduction) of promulgated works.

6. To not carried to high risk non-profit organizations, the rights of authors, contractors, producers of soundtracks and audiovisual works to receipt of remuneration for reproduction of soundtracks and audiovisual works performing activities in the sphere implementation for personal reasons and treat without income acquisition.

7. Assessment of risk degree of subjects of control and their reference to high risk group is performed by objective and subjective criteria based on the greatest probability of damnification to legitimate interests of physical persons and legal entities, as a result of activities of the subject of control taking into account severity of its consequences.

8. Subjective criteria for the purpose of carrying out preventive control with visit of the subject of control are applied to the subjects of control carried by objective criteria to high risk.

Paragraph 2. Subjective criteria

9. Determination of subjective criteria:

1) forming of the database and information collection;

2) information analysis and risks assessment.

10. Forming of the database and information collection are necessary for identification of the subjects of control violating the law of the Republic of Kazakhstan of organization activity, managing directors of property rights on collective basis.

For assessment of degree of risks by subjective criteria the following sources of information are used:

availability and the number of the confirmed claims and addresses;

results of monitoring of the reporting and the data represented by the subject of control;

results of the previous checks and preventive control with visit of subjects of control;

analysis of official Internet resources of state bodies, mass media.

11. For assessment of risk degree the following sources of information are used:

1) subjective criteria on information source "availability and the number of the confirmed claims and addresses", are determined according to appendix 1 to these Criteria;

2) subjective criteria "results of monitoring of the reporting and the data represented by the subject of control" are determined by information source according to appendix 2 to these Criteria;

3) subjective criteria "results of the previous checks and preventive control with visit of the subjects of control performing activities in the sphere of implementation of the rights of authors, contractors, producers of soundtracks and audiovisual works on receipt of remuneration for reproduction of soundtracks and audiovisual works for personal reasons and without income acquisition" are determined by information source according to appendix 3 to these Criteria;

4) subjective criteria "results of the previous checks and preventive control with visit of the subjects of control performing activities in the sphere of management of copyright and the related rights" are determined by information source according to appendix 4 to these Criteria.

5) subjective criteria "the analysis of official Internet resources of state bodies, mass media" are determined by information source according to appendix 5 to these Criteria.

12. Depending on possible risk and the importance of problem, singularity or systemacity of violation, the analysis of the decisions made earlier subjective criteria which according to criteria for evaluation of risk degree correspond to extent of violation - rough, considerable and insignificant are determined by each source of information.

Gross violations - violation and failure in duty established by regulatory legal acts in the sphere of intellectual property subjects of control, regarding submission of the annual statement to authorized body, not distribution and nonpayment of remuneration to authors and owners, uses more than thirty percent from the total amount of assembled remuneration on coverings of administrative expenses, lack of agreements on transfer to the organizations managing property rights on collective basis, powers on management of the rights of authors, contractors, producers of soundtracks, application of rates of remuneration are lower than the minimum rates approved by resolutions the Government of the Republic of Kazakhstan of October 20, 2004 No. 1083 "About approval of minimum rates of award for some types of use of works" of November 23, 2011 No. 1373 "About approval of minimum rates of remuneration to contractors and producers of soundtracks".

Considerable violation - violation and failure in duty by subjects of control, established by regulatory legal acts in the sphere of intellectual property, regarding non-presentation of the year balance, the annual statement, including data on the collected, distributed, unallotted, paid, unpaid, unclaimed remunerations no later than the April 15 following the accounting period, misstatements of reports, rejection of measures for search of authors, contractors, producers of soundtracks for transfer of collected award.

Insignificant violation - availability one confirmed claims or the addresses on subjects of control which arrived from physical persons or legal entities, state bodies, not submission of information on branches and representations on the places performing functions on collection, distribution and payment of remuneration for use of objects of copyright or the related rights.

13. In case of identification of one gross violation, to the subject of control the exponent of risk 100 is equated and concerning it preventive control with visit of the subject of control is carried out.

If gross violations are not revealed, for measure definition of risk degree the total indicator on violations of considerable and insignificant degree is calculated.

In case of measure definition of violations of considerable degree the coefficient of 0,7 is applied and this indicator is calculated by the following formula:

СуммаRz = (СуммаP2 x 100/СуммаP 1) x 0,7

where:

СуммаRz - indicator of considerable violations;

СуммаP1 - the required number of considerable violations;

СуммаP2 - the number of the revealed considerable violations.

In case of measure definition of violations of insignificant degree the coefficient of 0,3 is applied and this indicator is calculated by the following formula:

СуммаRn = (СуммаP2 x 100/Сумма P 1) x 0,3

where:

СуммаRn - indicator of insignificant violations;

СуммаP1 - the required number of insignificant violations;

СуммаP2 - the number of the revealed insignificant violations.

The general exponentСумма of risk (R) is calculated on scale from 0 to 100 and is determined by summing of indicators by the following formula:

СуммаР =Сумма Rz +Сумма Rn

where:

СуммаР - general exponent of risk;

СуммаRz - indicator of considerable violations;

СуммаRn - indicator of insignificant violations.

12. On risk exponents the subject of control belongs:

1) to high risk - in case of exponent of risk from 61 to 100 inclusive and concerning it preventive control with visit of the subject of control is carried out;

2) not carried to high risk - in case of exponent of risk from 0 to 60 and concerning it preventive control with visit of the subject of control is not carried out.

13. Frequency rate of carrying out preventive control with visit of the subject of control cannot be more often than once a year.

In the analysis and assessment of degree of risks data of the subjective criteria which are earlier considered and used concerning the specific subject of control are not applied.

14. Lists of carrying out preventive control with visit of the subject of control are constituted taking into account priority of subjects of control with the greatest exponent of risk by subjective criteria.

Appendix 1

to Criteria for evaluation of degree of risks of organization activity, managing directors of property rights on collective basis

Subjective criteria on information source "availability and the number of the confirmed claims and addresses"

Criteria

Extent of violations

1. Availability of the confirmed claims and addresses

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