Unofficial translation
In pursuance of paragraphs 5 and 6 of Article 141 and paragraph 1 of Article 143 of the Entrepreneur Code of the Republic of Kazakhstan, we hereby ORDER:
Footnote. Preamble - as amended by the joint order of the Minister of Justice of the Republic of Kazakhstan dated 30.11.2022 № 982 and the Minister of National Economy of the Republic of Kazakhstan dated 30.11.2022 № 110 (effective from 01.01.2023).1. To approve:
1) risk assessment criteria in the field of the notarial activity, in accordance with Appendix 1 to this joint order;
2) excluded by the joint order of the Minister of Justice of the Republic of Kazakhstan dated 30.11.2022 № 982 and the Minister of National Economy of the Republic of Kazakhstan dated 30.11.2022 № 110 (effective from 01.01.2023).3) excluded by the joint order of the Minister of Justice of the Republic of Kazakhstan dated 30.11.2022 № 982 and the Minister of National Economy of the Republic of Kazakhstan dated 30.11.2022 № 110 (effective from 01.01.2023).
4) a checklist of activities in relation to notaries engaged in private practice (private notaries) to verify compliance with qualification or licensing requirements in accordance with Annex 4 to this joint order;
5) a checklist of activities in relation to notaries engaged in private practice (private notaries) for conducting an inspection/preventive control with a visit to the subject (object) of control in accordance with Appendix 5 to this joint order;
6) a checklist of activities in relation to territorial notary chambers for conducting an inspection/preventive control with a visit to the subject (object) of control in accordance with Annex 6 to this joint order.
Footnote. Item 1 as amended by joint orders of the Minister of Justice of the Republic of Kazakhstan dated 30.11.2022 № 982 and the Minister of National Economy of the Republic of Kazakhstan on 30.11.2022 № 110 (effective from 01.01.2023); dated 13.11.2023 № 812 and the Minister of National Economy of the Republic of Kazakhstan dated 14.11.2023 № 176 (effective ten calendar days after the date of its first official publication).2. To invalidate Joint Order № 649 of the Minister of Justice of the Republic of Kazakhstan as of December 28, 2015 and № 833 of the Acting Minister of National Economy of the Republic of Kazakhstan as of December 30, 2015 “On approval of risk assessment criteria and checklists in the field of the notarial activity” (registered in the Register of State Registration under № 12698, published in the “Adilet” Information and Legal System on January 12, 2016).
3. In accordance with the procedure established by the legislation, the Department of Registration Service and Organization of Legal Services of the Ministry of Justice of the Republic of Kazakhstan shall:
1) ensure state registration of this joint order with the Ministry of Justice of the Republic of Kazakhstan;
2) within ten calendar days of the state registration of this order, send it in Kazakh and Russian to the Republican State Enterprise with the Right of Economic Management “Republican Center of Legal Information” for its official publication and inclusion into the Reference Control Bank of Regulatory Legal Acts of the Republic of Kazakhstan;
4. Control over execution of this joint order shall be entrusted to the supervising vice-minister of Justice of the Republic of Kazakhstan.
5. This joint order shall take effect ten calendar days after its first official publication.
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“AGREED”
Committee on Legal Statistics and
Special Accounts of the
General Prosecutor’s Office of
the Republic of Kazakhstan
____________________
| Appendix 1 to Joint Order № 1529 of the Minister of Justice of the Republic of Kazakhstan as of November 6, 2018 № 60 of the Minister of National Economy of the Republic of Kazakhstan as of November 6, 2018 |
Criteria for assessing the degree of risks in the field of notarial activities
Footnote. Appendix 1 - as amended by the joint order of the Minister of Justice of the Republic of Kazakhstan dated 13.11.2023 № 812 and the Minister of National Economy of the Republic of Kazakhstan dated 14.11.2023 № 176 (effective ten calendar days after the date of its first official publication).
Chapter 1. General provisions
1. These Criteria for assessing the degree of risks in the field of notarial activities (hereinafter referred to as the Criteria) have been developed in pursuance of paragraphs 5 and 6 of Article 141 and paragraph 1 of Article 143 of the Entrepreneur Code of the Republic of Kazakhstan (hereinafter referred to as the Code), the Law of the Republic of Kazakhstan “On Notaries” (hereinafter referred to as –the Law), with the Rules for the formation by regulatory state bodies of the risk assessment and management system, approved by the order of the Acting Minister of National Economy of the Republic of Kazakhstan dated June 22, 2022 № 48 (registered in the Register of State Registration of Regulatory Legal Acts under № 28577) and with the forms of checklists, approved by the order of the Acting Minister of National Economy of the Republic of Kazakhstan dated July 31, 2018 № 3 (registered in the Register of State Registration of Regulatory Legal Acts under № 17371).
2. The following terms shall be used in these Criteria:
1) score - a quantitative measure of risk calculation;
2) data normalization - a statistical procedure that involves bringing values measured in different scales to a conditionally common scale;
3) risk - likelihood of a harm caused by the activities of the subject of control and supervision to human life or health, the environment, the legitimate interests of individuals and legal entities, the property interests of the state, taking into account the severity of its consequences;
4) risk assessment and management system - the process of making managerial decisions aimed at reducing the likelihood of occurrence of unfavorable factors by distributing control subjects into risk degrees for subsequent preventive control with visits to the subject of control and (or) compliance checks for qualification or authorization requirements (hereinafter - compliance checks) with the aim of the minimum possible degree of restriction of freedom of enterprise, while ensuring an acceptable level of risk in relevant areas of activity, also aimed at changing the risk level for a specific subject of control and (or) release of such subject of control and preventive control with a visit to the subject of control and (or) compliance checks;
5) objective criteria for assessing the degree of risk (hereinafter - objective criteria) - criteria for assessing the degree of risk used for the selection of control subjects depending on the degree of risk of their activities and not directly dependent on an individual control subject (object);
6) risk assessment criteria - a set of quantitative and qualitative indicators related to the control subject's direct activity, specifics of sectoral development and factors impacting this development, which allow for assigning of control subjects (objects) to different degrees of risk;
7) subjective criteria for risk degree assessment (hereinafter - subjective criteria) - criteria for risk degree assessment used for selection of control subjects depending on the results of activities of a particular control subject;
8) checklist - a list of requirements for the activities of control subjects (objects), non-compliance with which entails a threat to human life and health, the environment, the legitimate interests of individuals, legal entities and the state;
9) subject of control - an individual pursuing notarial activities in accordance with the Law of the Republic of Kazakhstan On Notaries, territorial notary chambers;
10) gross violations - violations of the requirements established by the legislation of the Republic of Kazakhstan in the field of notarial activity, which may lead to significant violations of the rights, freedoms and legitimate interests of individuals and legal entities;
11) significant violations - violations of the requirements of the legislation of the Republic of Kazakhstan in the field of notarial activity, which create preconditions for causing harm to life, human health, environment and legitimate interests of individuals and legal entities, the state;
12) minor violations - violations of the requirements of the legislation of the Republic of Kazakhstan in notarial activity, which are not related to significant and gross violations;
13) sample (selection) - a list of assessed subjects (objects) classified as a homogeneous group of subjects (objects) of control in a specific area of state control, in accordance with paragraph 2 of Article 143 of the Code.
Chapter 2. The procedure of forming a risk assessment and management system when
conducting compliance check and preventive control of subjects (objects) of control
3. For risk management purposes when conducting preventive control with a visit to the subject (object) of control and (or) compliance check, criteria for assessing the degree of risk for carrying out preventive control of subjects (objects) of control and compliance check shall be formed by determining objective and subjective criteria that shall be implemented in stepwise (Multi-criteria decision analysis).
4. Depending on the possible risk and significance of the problem, the singularity or systematic nature of the violation, the analysis of previously made decisions on each source of information, the requirements for the activities of the subjects (objects) of control correspond to the violation degree - gross, significant and minor.
The violation degree (gross, significant, minor) shall be assigned in accordance with the established definitions of gross, significant, minor violations according to subjective criteria in accordance with Appendices 1, 2 to these Criteria.
5. Criteria for assessing the degree of risk for carrying out preventive control of subjects (objects) of control and (or) compliance checks shall be formed by defining objective and subjective criteria.
Paragraph 1. Objective criteria
6. According to objective criteria, the subjects (objects) of control at high risk include private notaries and territorial notary chambers.
Preventive control with visits to the subject (object) of control and (or) compliance checks shall be applied to the subjects (objects) of control classified as high risk.
7. Control subjects (objects) shall be attributed to a high risk depending on the likelihood of causing harm to the legitimate interests of individuals and legal entities, to the interests of the state resulting from the activities of control subjects (objects) related to ensuring the secrecy of notarial acts, protection of the rights of individuals and legal entities in the field of compliance with the legislation on personal data, which may lead to illegal dissemination of the secrecy of notarial acts, entail the violation of the state-guaranteed rights and freedoms of individuals and legal entities.
8. Preventive control with visits to the subject (object) of control shall be conducted on the basis of semi-annual lists of preventive control with visits to the subject (object) of control.
9. Compliance inspections of the subject (object) of control shall be conducted on the basis of the compliance schedule.
Paragraph 2. Subjective criteria
10. Determination of subjective criteria shall be carried out through the following steps:
1) formation of the database and collection of information;
2) information analysis and risk degree assessment.
11. Formation of the database and collection of information is necessary to identify subjects (objects) of control that violate the legislation of the Republic of Kazakhstan in the field of notarial activities.
To assess the degree of risks according to subjective criteria for carrying out preventive control with a visit to the subject (object) of control, the following information sources shall be used:
1) results of the previous inspection and preventive control with visits to the subjects (objects) of control.
To assess the degree of risk according to subjective criteria, the following information sources shall be used to conduct compliance check:
1) results of the previous inspections of subjects (objects) of control;
2) results of the analysis of information provided by authorized bodies and organizations.
12. Based on available information sources, subjective criteria are divided into three degrees of violation: gross, significant, minor.
Analysis and assessment of subjective criteria will make it possible to focus the inspection and preventive control with a visit to the subject (object) of control in respect of the subject (object) of control with the highest potential risk.
At the same time, data of subjective criteria, previously recorded and used in respect of a particular subject (object) of control or data for which the statute of limitations has expired in accordance with the legislation of the Republic of Kazakhstan shall not be applied in the analysis and evaluation.
With regard to subjects (objects) of control that have eliminated in full the violations based on the issued results of the previous preventive control with a visit and (or) compliance check, they shall not be included in the formation of schedules and lists for the next period of state control.
13. Depending on the possible risk and significance of the problem, the singularity or systematic nature of the violation, the analysis of previously made decisions for each source of information , subjective criteria are determined, which, in accordance with the criteria for assessing the degree of risk, shall correspond to the degree of violation - gross, significant and minor.
Subjective criteria for assessing the degree of risk of the activities of subjects (objects) of control are set out in Appendix 3 to these Criteria
14. Based on the priority of the used sources of information, in accordance with the calculation procedure, the total risk level indicator by subjective criteria shall be calculated by the total risk level indicator by subjective criteria on a scale from 0 to 100.
According to the indicators of the degree of risk, the subject (object) of control belongs to a high degree of risk - with an indicator of the degree of risk from 71 to 100 inclusive and in relation to it, verification and preventive control shall be carried out with a visit to the subject (object) of control.
Chapter 3. Procedure for calculating the total risk score by subjective criteria
15. The state body shall collect information and form a database according to subjective criteria from sources in accordance with paragraph 11 of the Criteria.
Calculation of the risk level indicator according to subjective criteria (R) shall be carried out in an automated mode by summing up the risk level indicator according to violations based on the results of previous inspections and preventive control with visiting control subjects (SP) and the risk level indicator according to subjective criteria determined in accordance with paragraph 14 of these Criteria (SC), with subsequent normalization of data values in the range from 0 to 100 points.
Rprom = SP + SC, where
Rprom shall be an intermediate indicator of the degree of risk according to subjective criteria,
SP shall be an indicator of the degree of risk by violations,
SC shall be an indicator of the degree of risk according to subjective criteria determined in accordance with paragraph 14 of the Criteria.
The calculation shall be made for each control subject of a homogeneous group of control subjects of each sphere of state control. At the same time, the list of evaluated control subjects belonging to a homogeneous group of control subjects of one sphere of state control forms a selective set (sample) for subsequent normalization of data.
16. To classify the control subject as a risk, the following procedure for calculating the risk level indicator shall be used.
If one gross violation is detected, the control subject is equated with a risk level indicator of 100 points and a check for compliance with the requirements or preventive control with a visit to the control subject shall be carried out against it.
If gross violations are not detected, the determination of the risk level indicator is calculated by the total indicator for violations of a significant and insignificant degree.
When determining a significant disturbance indicator, a coefficient of 0.7 is used and this indicator shall be calculated using the following formula:
SRz = (SP2 х 100/SP1) х 0.7
where:
SRz - an indicator of significant violations;
SP1 - the required number of significant violations;
SP2 - number of detected significant violations;
when determining the indicator of minor violations, a coefficient of 0.3 is used and this indicator is calculated using the following formula:
SРн = (SP2 х 100/SP1) х 0.3
where:
SРн - indicator of minor violations;
SP1 - required number of minor violations;
SP2 - number of detected minor violations;
The overall risk score (SP) is calculated on a scale of 0 to 100 and is determined by summing significant and minor impairment scores using the following formula:
SР = SРз + SРн
where:
SP - a general indicator of the degree of risk;
SРз - an indicator of significant violations;
SРн - an indicator of minor violations.
17. Calculation of the risk level according to subjective criteria determined in accordance with paragraph 14 of the Criteria shall be carried out on a scale from 0 to 100 points and shall be carried out according to the following formula:
xi - an indicator of the subjective criterion,
wi - specific gravity of the index of subjective criterion xi,
n - the number of indicators.
The obtained value of the risk level indicator according to subjective criteria shall be included in the calculation of the risk level indicator according to subjective criteria.
The values calculated by subjects (objects) for the R parameter shall be normalized in the range from 0 to 100 points. Data normalization shall be carried out for each sample set (sample) using the following formula:
R - an indicator of the degree of risk (final) according to the subjective criteria of an individual subject (object) of control,
Rmax - the maximum possible value on the scale of the degree of risk according to subjective criteria for subjects (objects) included in one selective set (sample) (upper limit of the scale),
Rmin - the minimum possible value on the scale of the degree of risk according to subjective criteria for subjects (objects) included in one selective set (sample) (lower limit of the scale),
Rprom - an intermediate indicator of the degree of risk according to subjective criteria, calculated in accordance with paragraph 15 of the Criteria.
18. The frequency of preventive control with a visit to the subject (object) of control and verification for compliance with the requirements shall be determined by the criteria for assessing the degree of risk, but not more often than twice a year.
19. A semi-annual list of preventive control with a visit to the subject (object) of control and a schedule of verifications for compliance with the requirements shall be compiled taking into account the priority of the subject of control with the highest indicator of the degree of risk according to subjective criteria.
Chapter 4. Checklists
20. Checklists shall be drawn up for homogeneous groups of subjects (objects) of control and shall include requirements in accordance with paragraph 2 of Article 132 of the Code and in compliance with the conditions defined in paragraph 2 of Article 143 of the Code.
| Annex 1 to evaluation criteria degree of risk in the sphere of notarial activity |
Degree of violation of the requirements for assessing the degree of risk of activities
of control subjects for conducting inspections and preventive control of control subjects (objects)
№ | Criteria | Violation |
1. For private notaries | ||
1 | Doing business | gross |
2 | Non-compliance with the secret of notarial actions | gross |
3 | Lack of premises suitable for unhindered access of individuals and representatives of legal entities, ensuring the safety of notarial office work | gross |
4 | Failure to provide the state body of financial monitoring and the authorized body in the field of combating the legalization (laundering) of proceeds from crime and the financing of terrorism with information and information on transactions subject to financial monitoring | gross |
5 | Absence of compulsory civil liability insurance contract | gross |
6 | Failure to provide the subject of control within a month to the territorial body of justice with information about the change in his surname, name, patronymic (if any), as well as the location of his premises | significant |
7 |
Inappropriate notarial record keeping: | insignificant |
8 |
Inappropriate notarial actions, namely: | gross |
2. By territorial notary chambers | ||
9 | Absence of private notarial archive, organization of their functions for accumulation, storage and use of notarial documents | gross |
10 | Non-compliance with the secret of notarial actions | gross |
11 | Failure to ensure the organization of insurance by private notaries of civil liability and failure to inform the territorial bodies of justice about cases of evasion of private notaries from the conclusion of a compulsory insurance contract for their civil liability | significant |
12 | Failure to provide notary chambers with information on their activities following the results of the half-year and the year | significant |
| Annex 2 to evaluation criteria degree of risk in the sphere of notarial activity |
Degree of violations of the requirements of subjects (objects) of control
in the field of notarial activities for verification of compliance with the requirements
№ | Criteria | Violation |
1. For private notaries | ||
1 | Doing business | gross |
2 | Absence of compulsory civil liability insurance contract | gross |
| Annex 3 to evaluation criteria degree of risk in the sphere of notarial activity |
List of subjective criteria for determining the degree of risk in relation to notaries
№ r/n | Subjective criterion indicator | Source of information on the subjective criterion indicator | Specific gravity by significance, point (in total should not exceed 100 points), wi | Conditions/values, xi | |
condition 1/value | condition 2/value | ||||
1 | 2 | 3 | 4 | 5 | 6 |
To verify for compliance with the requirements | |||||
1 | Absence of compulsory civil liability insurance contract | Results of analysis of information submitted by authorized bodies and organizations | 50 | Absence/100% | Availability/0% |
2 | Doing business | Results of analysis of information submitted by authorized bodies and organizations | 50 | Not confirmed/0% | Confirmed/100% |
Footnote. Annex 2 as excluded by the joint order of the Minister of Justice of the Republic of Kazakhstan dated 30.11.2022 № 982 and the Minister of National Economy of the Republic of Kazakhstan 30.11.2022 № 110 (shall enter into force dated 01.01.2023).
| Annex 3 to the joint order of the Minister of Justice of the Republic of Kazakhstan dated November 6, 2018 № 1529 and of the Minister of National Economy of the Republic of Kazakhstan dated November 6, 2018 № 60 |
Footnote. Annex 3 as excluded by the joint order of the Minister of Justice of the Republic of Kazakhstan dated 30.11.2022 № 982 and the Minister of National Economy of the Republic of Kazakhstan 30.11.2022 № 110 (shall enter into force dated 01.01.2023).
Checklist
Footnote. Annex 4 - as amended by the joint order of the Minister of Justice of the Republic of Kazakhstan dated 13.11.2023 № 812 and of the Minister of National Economy of the Republic of Kazakhstan dated 14.11.2023 № 176 (shall enter into force upon expiry of ten calendar days after the day of its first official publication).
In the field of notarial activity
____________________________________________________________________
in accordance with the Entrepreneur Code of the Republic of Kazakhstan
in relation to a private notary
____________________________________________________________________
name of homogeneous group of control subjects State body,
who appointed the verification in relation to the subject of control
____________________________________________________________________
____________________________________________________________________
Certificate on the verification of the appointment
____________________________________________________________________
____________________________________________________________ (№, date)
Name of the control subject
____________________________________________________________________
____________________________________________________________________
Individual identification of the number of the control subject
____________________________________________________________________
____________________________________________________________________
Address of the residence _______________________________________________
№ | List of requirements | Conform the requirements | Do not conform the requirements |
1 | 2 | 3 | 4 |
1 | Doing business | ||
2 | Absence of compulsory civil liability insurance agreement |
Official (s):
__________________________________________ ____________
position signature
_______________________________________________________
(last name, first name, patronymic (if any) position) (signature)
Head of the control subject
___________________________________________ ___________
position signature
_______________________________________________________
surname, first name, patronymic (if any)
Checklist
Footnote. Annex 5 - as amended by the joint order of the Minister of Justice of the Republic of Kazakhstan dated 13.11.2023 № 812 and the Minister of National Economy of the Republic of Kazakhstan dated 14.11.2023 № 176 (shall enter into force upon expiry of ten calendar days after the day of its first official publication).
In the field of the notarial activity
____________________________________________________________________
in accordance with the Entrepreneur Code of the Republic of Kazakhstan
in relation to a private notary
____________________________________________________________________
name of homogeneous group of control subjects State body,
who appointed the verification/preventive control with a visit to the subject of control
____________________________________________________________________
____________________________________________________________________
Act on appointment of verification/preventive control with subject visit
control
____________________________________________________________________
____________________________________________________________ (№, date)
Name of the subject control
____________________________________________________________________
____________________________________________________________________
Individual identification number of the subject control
____________________________________________________________________
____________________________________________________________________
Address of the residence____________________________________________________________________
№ | List of requirements | Conform the requirements | Do not conform the requirements |
1 | 2 | 3 | 4 |
1 | Non-compliance with the secret of notarial actions | ||
2 | Lack of premises suitable for unhindered access of individuals and representatives of legal entities, ensuring the safety of notarial office work | ||
3 | Failure to provide the control entity with information and information on transactions subject to financial monitoring to the state financial monitoring body and the authorized body in the field of combating the legalization (laundering) of proceeds from crime and the financing of terrorism | ||
4 | Failure to provide the subject of control within a month to the territorial body of justice with information about the amendment in his surname, name, patronymic (if any), as well as the location of his premises | ||
5 |
Inappropriate notarial record keeping: | ||
6 |
Inappropriate notarial actions, namely: |
Official (s):
__________________________________________ ____________
position signature
_______________________________________________________
( last name, first name, patronymic (if any) position) (signature)
Head of the control subject
___________________________________________ ___________
position signature
_______________________________________________________
surname, first name, patronymic (if any)
Checklist
Footnote. The joint order as added by Annex 6 in accordance with the joint order of the Minister of Justice of the Republic of Kazakhstan dated 13.11.2023 № 812 and the Minister of National Economy of the Republic of Kazakhstan dated 14.11.2023 № 176 (shall enter into force upon expiry of ten calendar days after the day of its first official publication).
In the field of notarial activity _______________________________________
in accordance with the Entrepreneur Code of the Republic of Kazakhstan in relation to
territorial notary chamber
________________________________________________________________________
Name of homogeneous group of subjects (objects) of control State
the body that appointed the inspection/preventive control with the visit of the subject
control ________________________________________________________________
________________________________________________________________________
Act on appointment of verification/preventive control with subject visit
(object) of control
________________________________________________________________________
________________________________________________________________ (№, date)
Name of the subject (object) of control
________________________________________________________________________
________________________________________________________________________
Business ID number of the control entity _________________________
________________________________________________________________________
Address of the residence________________________________________________________________________
№ | List of requirements | Conform the requirements | Do not conform the requirements |
1 | 2 | 3 | 4 |
1 | Absence of private notarial archive, organization of their functions for accumulation, storage and use of notarial documents | ||
2 | Non-compliance with the secret of notarial actions | ||
3 | Failure to ensure the organization of insurance by private notaries of civil liability and failure to inform the territorial bodies of justice about cases of evasion of private notaries from the conclusion of a compulsory insurance contract for their civil liability | ||
4 | Failure to provide notary chambers with information on their activities following the results of the half-year and the year |
Official (s):
_________________________________________ ______________
position signature
________________________________________________________
(last name, first name, patronymic (if any) position) (signature)
Head of the control subject
___________________________________________ _____________
position signature________________________________________________________
surname, first name, patronymic (if any)
