Comment to Article 148. Violation of labor legislation of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Illegal termination of an employment contract with an employee, non-fulfillment of a court decision on reinstatement at work, as well as other violation of the labor legislation of the Republic of Kazakhstan, resulting in significant harm to the rights and legitimate interests of citizens, —
are punishable by a fine in the amount of one hundred to two hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of one to two months, or by deprivation of the right to hold certain positions or engage in certain activities for up to five years.
2. Unjustified refusal to conclude an employment contract with a woman or unjustified termination of an employment contract with her on the grounds of her pregnancy or unjustified refusal to conclude an employment contract or unjustified termination of an employment contract with a woman with children under the age of three on these grounds, as well as unjustified refusal to conclude an employment contract or unjustified termination of an employment contract an agreement with a disabled person on the grounds of disability or a minor on the grounds of his minor —
are punishable by a fine in the amount of two hundred to five hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of two to five months, or by deprivation of the right to hold certain positions for up to five years, or correctional labor for up to two years.
3. Repeated delay by a person performing managerial functions in the payment of wages in full and on time due to the use of funds for other purposes —
is punishable by a fine in the amount of three hundred to seven hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of three to seven months or by deprivation of the right to hold certain positions or engage in certain activities for up to five years.
The right to work, which is of international importance, is fundamental in the system of socio-economic rights.
Article 23 of the Universal Declaration of Human Rights (December 10, 1948) establishes the right of everyone to work as:
— The right to free choice of work, to fair and favorable working conditions, and to protection from unemployment;
— The right to equal pay for equal work without any discrimination;
— the right to fair and satisfactory remuneration, ensuring a decent existence for a person and his family and supplemented, if necessary, by other means of social security;
— The right to form and join trade unions to protect their interests.
According to According to the International Covenant on Economic, Social and Cultural Rights (1966), the participating States recognize the right to work, which includes the right of everyone to be able to earn a living by work that he freely chooses or agrees to, and will take appropriate steps to ensure this right. The Participating States also undertake to recognize the right of everyone to just and favourable working conditions, including in particular:
a) remuneration that provides at least for all workers: fair wages and equal remuneration for work of equal value without distinction of any kind, and, in particular, women should be guaranteed working conditions no worse than those enjoyed by men, with equal pay for equal work; a satisfactory existence for themselves and their families in accordance with the provisions of the present Covenant;
b) working conditions that meet safety and hygiene requirements;
c) the same opportunity for everyone to advance in their work to the appropriate higher levels solely on the basis of work experience and qualifications;
d) rest, leisure and reasonable limitation of working hours, and paid periodic leave, as well as remuneration on public holidays.
Article 24 of the Constitution of the Republic of Kazakhstan also establishes that everyone has the right to freedom of work, free choice of occupation and profession. Forced labor is allowed only by a court verdict or under conditions of martial law or a state of emergency.
In accordance with Article 3 of the Labor Code of the Republic of Kazakhstan dated May 15, 2007, the purpose of the labor legislation of the Republic of Kazakhstan is the legal regulation of labor relations and other relations directly related to labor, aimed at protecting the rights and interests of the parties to labor relations, establishing minimum guarantees of rights and freedoms at work. The objectives of the labor legislation of the Republic of Kazakhstan are to create the necessary legal conditions aimed at achieving a balance of interests between the parties to labor relations, economic growth, increased production efficiency and human well-being.
The public danger of the crime provided for in Article 148 of the Criminal Code of the Republic of Kazakhstan is the violation of the labor rights of citizens guaranteed by the Constitution of the Republic of Kazakhstan.
The object of the act in question is the constitutional right of everyone to freedom of work, free choice of occupation and profession.
The objective side of the crime is expressed in the following alternative actions::
1. illegal termination of an employment contract with an employee;
2. failure to comply with a court decision on reinstatement at work;
3. other violation of the labor legislation of the Republic of Kazakhstan.
In order to recognize the termination of an employment contract with an employee as legitimate, it is necessary to have a combination of the following circumstances:
1) the basis for termination of an employment contract must be the basis specified in the Labor Code of the Republic of Kazakhstan.;
2) termination of the employment contract on this basis must be carried out in accordance with the procedure established by labor legislation.;
3) the existence of a legal act on termination of the employment contract; 4) all guarantees provided for by labor legislation must be observed upon termination of the employment contract with the employee.
In accordance with Article 51 of the Labor Code of the Republic of Kazakhstan, the grounds for termination of an employment contract are:
1) termination of an employment contract by agreement of the parties (Article 52 of the Labor Code);
2) expiration of the term of the employment contract (Article 53 of the Labor Code); 3) termination of the employment contract at the initiative of the employer (Articles 54-56 of the Labor Code);
4) termination of the employment contract on the initiative of the employee (Article 57); 5) circumstances beyond the control of the will of the parties (Article 58 of the Labor Code);
6) the employee's refusal to continue the employment relationship (Article 59 of the Labor Code);
7) the transfer of an employee to an elective job (position) or his appointment to a position that excludes the possibility of continuing an employment relationship, except in cases provided for by the Laws of the Republic of Kazakhstan (art.;
8) violation of the terms of the employment contract (Article 61 of the Labor Code);
9) the grounds provided for in the employment contract concluded with the head of the executive body of the employer (Articles 252, 253 of the Labor Code).
Thus, illegal termination of an employment contract with an employee in relation to Part 1 of Article 148 of the Criminal Code of the Republic of Kazakhstan will occur if: firstly, the grounds for it are unlawful legal facts for termination or termination of an employment contract, i.e. those grounds that are not explicitly specified in Article 51 of the Labor Code of the Republic of Kazakhstan. Secondly, the legal facts provided for by labor legislation are indicated as grounds for termination or termination of an employment contract, but they do not correspond to actual events. The court's decision to reinstate an employee with whom the employment relationship was terminated unlawfully is subject to immediate execution. Its non-fulfillment in all cases forms the objective side of the act in question.
A court decision, according to Part 1 of Article 21 of the Civil Code of the Republic of Kazakhstan, is one of the forms of judicial act in civil cases adopted by the court. Court decisions that have entered into legal force are binding on all state bodies, local governments, public associations, other legal entities, officials and citizens, without exception, and are subject to strict enforcement throughout the Republic of Kazakhstan (Part 2, Article 21 of the Civil Code of the Republic of Kazakhstan).
In accordance with Part 1 of Article 235 of the Civil Code of the Republic of Kazakhstan, decisions of district, regional and equivalent courts rendered in first instance cases enter into force upon expiration of the time limit for their appeal, if they have not been appealed or protested. Decisions of the Supreme Court of the Republic of Kazakhstan rendered on cases considered in the first instance come into legal force from the date of their announcement (Part 2 of Article 235 of the Civil Code of the Republic of Kazakhstan).
At the same time, according to Article 237 of the Civil Code of the Republic of Kazakhstan, decisions on reinstatement are subject to immediate execution.
Thus, if the court, upon the unlawful termination of an employment contract with an employee, decided to reinstate him at work, which is subject to immediate execution, then the fact of non-fulfillment of this court decision forms the objective side of the corpus delicti provided for in Part 1 of Article 148 of the Criminal Code of the Republic of Kazakhstan.
Another violation of the labor legislation of the Republic of Kazakhstan is an act that violates the terms of the employment contract, while significantly infringing on the rights of the employee.
One of the mandatory conditions for criminal liability under Part 1 of Article 148 of the Criminal Code of the Republic of Kazakhstan on the basis of another violation of the labor legislation of the Republic of Kazakhstan is causing significant harm to the rights and legitimate interests of citizens.
Substantial harm is an evaluative concept that is established in each specific case based on the circumstances of the case. When deciding whether the harm caused is significant, the degree of negative impact of the unlawful act on the normal functioning of the victim, as well as his family, is taken into account, and all circumstances worthy of attention are taken into account. For example, an unjustified refusal to conclude an employment contract with an employee under the far-fetched pretext of the absence of vacancies for a person who is the sole breadwinner of a family, or who has dependent minor children, disabled children, deprives him of his livelihood and puts him in a marginal state. At the same time, the consequences of these actions in relation to a person in a more advantageous socio-economic position will be of a different nature.
Thus, the illegal termination of an employment contract with an employee, failure to comply with a court decision on reinstatement at work is recognized as a completed crime from the moment of the commission of these actions (inaction), and in case of another violation of the labor legislation of the Republic of Kazakhstan - from the moment of causing significant harm to the rights and legitimate interests of citizens.
At the same time, in order to impute harmful consequences to a person, which are an obligatory sign of the objective side of the corpus delicti provided for in Part 1 of Article 148 of the Criminal Code of the Republic of Kazakhstan on the basis of another violation of labor legislation, it is necessary to have a causal relationship between the violation of labor legislation and the resulting consequences in the form of causing significant harm to the rights and legitimate interests of citizens.
On the subjective side, the act is characterized by direct intent, that is, the person is aware that it violates the victim's constitutional right to work, anticipates the possibility or inevitability of causing significant harm to the rights and legitimate interests of the victim and desires the occurrence of this consequence.
A subject is a special one, that is, an individual who performs organizational and administrative functions for the conclusion and termination of an employment contract.
In Part 2 of Article 148 of the Criminal Code of the Republic of Kazakhstan, the legislator provided for the following qualifying features:
1) unjustified refusal to conclude an employment contract with a woman on the grounds of her pregnancy or having children under the age of 3;
2) unjustified termination of an employment contract with a woman based on her pregnancy or having children under the age of 3;
3) unjustified refusal to conclude an employment contract with a disabled person on the grounds of his disability;
4) unjustified termination of an employment contract with a disabled person on the grounds of his disability;
5) unjustified refusal to conclude an employment contract with a minor on the grounds of his minor; 6) unjustified termination of an employment contract with a minor on the grounds of his minor.
The International Convention on the Elimination of All Forms of Discrimination against Women of December 18, 1979, to which Kazakhstan acceded in 1998 and ratified its Optional Protocol in 2001, prohibits, under threat of sanctions, dismissal from work on the grounds of pregnancy or maternity leave or discrimination based on marital status upon dismissal. According to this convention, the right to work is an inalienable right of all people, and its principles are consistent with the Constitution of the Republic of Kazakhstan. The principles of the Convention on the Elimination of All Forms of Discrimination against Women are consistent with art. 27 of the Constitution, which provides State protection of motherhood and childhood in the Republic of Kazakhstan.
In accordance with Article 14 of the Constitution of the Republic of Kazakhstan, everyone is equal before the law and the court. No one may be discriminated against in any way on the grounds of origin, social, official or property status, gender, race, nationality, language, attitude to religion, beliefs, place of residence or any other circumstances.
Based on this constitutional provision, the prohibition of discrimination, forced labor and the worst forms of child labor is one of the basic principles of the labor legislation of the Republic of Kazakhstan (art. 4 of the Labor Code of the Republic of Kazakhstan). In accordance with art . 7 of the Labor Code of the Republic of Kazakhstan, everyone has equal opportunities to exercise their rights and freedoms in the field of labor. No one may be subjected to any discrimination in the exercise of labor rights based on gender, age, physical disabilities, race, nationality, language, property, social and official status, place of residence, attitude to religion, political beliefs, belonging to a family or class, or to public associations. Persons who believe that they have been discriminated against in the sphere of work can file a corresponding application with the court. Part 2 of art. 148 of the Criminal Code of the Republic of Kazakhstan is a guarantee of the implementation of these constitutional and international principles by criminal legal means.
The procedure for concluding, amending and supplementing an employment contract is regulated by art. 32 of the Labor Code of the Republic of Kazakhstan, and the procedure for terminating an employment contract is art. 62 of the Labor Code of the Republic of Kazakhstan.
Refusal to conclude an employment contract or its termination with the persons indicated in the disposition of Part 2 of Article 148 of the Criminal Code of the Republic of Kazakhstan is unjustified if they are carried out for the reasons indicated with it and are not substantiated by objective arguments in writing.
The act is considered completed from the moment of refusal to conclude an employment contract or its termination for the above-mentioned reasons.
Part 3 of Article 148 of the Criminal Code provides for liability for repeated delays in the payment of wages in full and on time by a person performing managerial functions in connection with the use of funds for other purposes. The payment procedure is regulated Chapter 10 of the Labor Code of the Republic of Kazakhstan.
Wages are understood to mean all types of earnings, as well as various bonuses, surcharges, allowances and social benefits accrued in cash or in kind, regardless of sources of financing. This includes amounts of money accrued to employees in accordance with the law for unworked time (annual leave, holidays, etc.).
The non-payment of wages in full should be recognized as the payment of wages in the form of some part of it, i.e. any partial payment for work already performed, when the deadlines set by labor and collective agreements have expired. In accordance with Article 134 of the Labor Code of the Republic of Kazakhstan, wages are paid in cash in the national currency of the Republic of Kazakhstan at least once a month, no later than the first decade of the following month. Payment dates are stipulated in both labor and collective agreements.
When paying wages, the employer is obliged to notify the employee in writing on a monthly basis about the components of the salary due to him for the relevant period, the amount and grounds for the deductions made, including information about the withheld and transferred mandatory pension contributions, as well as the total amount of money to be paid.
If, due to the employer's fault, the payment of wages and other payments related to the termination of the employment contract with the employee is delayed, the employer pays the employee the debt and the penalty. The amount of the penalty is calculated based on the refinancing rate of the National Bank of the Republic of Kazakhstan on the day of fulfillment of obligations to pay wages and is calculated for each overdue calendar day, starting from the next day when payments are due, and ends on the day of payment.
Upon termination of the employment contract, the amounts due to the employee from the employer are paid no later than three working days after termination.
The payment of an advance is also recognized as incomplete payment of wages.
A repeated delay in the payment of wages is recognized not only as a delay in its payment to one person two or more times, but also as a delay in payment once to several persons.
The use of funds intended for the payment of wages for other purposes should be understood as any inappropriate use of them. For example, for the purchase of equipment, materials, and raw materials; for the expansion of production; for the repayment of accounts payable; for the payment of taxes; for the purchase of transport, real estate for personal purposes, and so on.
The act is considered completed from the moment of the commission of a repeated delay by a person performing managerial functions in paying wages in full and on time in connection with the use of funds for other purposes.
The crimes provided for in Parts 1, 2 and 3 of Article 148 of the Criminal Code of the Republic of Kazakhstan are minor crimes.
Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.
Date of amendment of the act: 08/02/2007 Date of adoption of the act: 08/02/2007 Place of acceptance: NO Authority that adopted the act: 180000000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 167 Status of the act: new Sphere of legal relations: 028000000000 Report form: COMM Legal force: 1900 Language of the Act: rus
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