Comment to Article 177. Fraud of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Fraud, that is, the theft of someone else's property or the acquisition of the right to someone else's property by deception or abuse of trust, —      

is punishable by a fine in the amount of two hundred to seven hundred monthly calculation indices or in the amount of wages or other income of the convicted person for a period of two to seven months, or community service for a period of one hundred eighty to two hundred forty hours, or correctional labor for up to two years, or arrest for up to six months, either by restriction of liberty for a term of up to three years, or by imprisonment for the same term.      

2. Fraud committed:      

a) a group of persons by prior agreement;      

b) repeatedly;      

c) using his official position, —      

is punishable by a fine in the amount of seven hundred to one thousand monthly calculation indices or in the amount of the convicted person's salary or other income for a period of five months to one year, or by restriction of liberty for a term of up to four years, or by imprisonment for a term of up to five years with or without confiscation of property.      

3. Fraud committed:      

a) an organized group;      

b) on a large scale;      

c) a person who has previously been convicted of embezzlement or extortion two or more times, —      

is punishable by imprisonment for a term of five to ten years with confiscation of property.

     The public danger of the crime in question is expressed in the fact that as a result of its commission through deception or abuse of trust, property rights are violated by causing material damage to the victim.      The object of the crime is property.      

The subject of fraud may be not only property, but also the right to property. Documents granting the right to receive property, including money, may be the subject of fraud in cases where they are the equivalent of property, carriers of a certain value. These include bearer securities, including monetary and payment documents, that is, documents that contain certain property rights, and this right can only be exercised if such a paper is presented. These also include, for example, government loan bonds, certificates, money and clothing lotteries, etc. Taking possession of such securities is equivalent to taking possession of the material assets themselves. They act as the denominators of material values, their loss means direct damage to the victim, a decrease in his material wealth, because in such cases, along with the documents, the property benefits embodied in it are also lost. As for the legal nature of the property, the subject of fraud may be property or the right to property that does not belong to the perpetrator by right of ownership. Moreover, the latter has neither a valid nor even a supposed right to dispose of this property as his own, since this property belongs by right of ownership to another person, that is, it must be alien to the perpetrator.      

The division of fraud into two types:

1) theft of other people's property;

2) the acquisition of the right to someone else's property significantly affects the content of the fraud. If, in the presence of the first type of fraud, only movable things can be the subject of it, then when acquiring the right to someone else's property, a house, a cottage and other immovable property can be the subject of fraud.      

On the objective side, the law defines fraud as the theft of someone else's property or the acquisition of the right to someone else's property by deception or abuse of trust. In the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003, in paragraph 19, it is noted that fraud in fraud can be expressed in a deliberate false statement about facts that knowingly do not exist or in concealing facts that, according to the circumstances of the case, should have been reported to the owner or the owner of the property.      

Deception can concern both the actual intention of the perpetrator, as well as the quantity and quality of the goods, the identity of the subject of the crime, and other circumstances that may mislead the victim.      In case of fraud, deception can be both oral and written. The use of forged documents produced by other persons during theft is one of the forms of deception, and these actions do not require additional qualifications under Part 3 of Article 325 of the Criminal Code.      

Forgery, production of forged documents, stamps, seals, letterheads by the subject of the crime, and then their use in embezzlement by the same person are subject to qualification according to the totality of crimes, according to the relevant parts of Articles 177 and 325 of the Criminal Code.      

Deception refers to a false idea of something, i.e. the victim is being misled. Deception can take two forms: active and passive. Active deception is the communication of false information to a person that distorts the perception of certain facts and events. Passive deception is omission of the truth, not informing the victim about the facts or circumstances that the perpetrator was obliged to report.      

Deception can be divided by content:      

1 – deception of a person (their existence, identity, special personality traits);      

2 – deception regarding various objects (their existence, identity, size, quality, price);      

3 – deception about various events, actions;     

4 – deception of intent (false promise).      

The listed cases are not exhaustive. At the same time, he can act in combination with them.      

Deception, as a way of committing fraud, is expressed not only in distorting the facts of the past or present, but also those that should occur in the future. Such, for example, are the facts of receiving money from the victim allegedly for the purchase of a car, or simply "in debt." By deceiving about the future, the fraudster thereby creates a false impression of the victim's true intentions. At the same time, deception can be expressed both verbally and in various deceptive actions.      

A common method of fraud should be considered various deceptions regarding the subject of the transaction, consisting in falsifying the appearance, properties, quality, quantity and other characteristics of various items offered for purchase or exchange. Moreover, the use of forged documents by the perpetrator is covered by fraud under Article 177 of the Criminal Code. For example, instead of ginseng tincture, tinted water is sold, instead of money, the victim is given a "doll" bundle, and less goods are transferred than stipulated by the agreement. Sometimes the deception is expressed in the fact that the fraudster pretends to be an official who allegedly has the opportunity to perform certain actions in favor of the victim: to arrange to study at a university, to a highly paid position, etc.      

Thus, any deception should be considered fraudulent if it is aimed at arousing the victim's desire or consent to transfer property or the right to property to the fraudster.      

Another type of fraud is called abuse of trust, in which the perpetrator uses the special powers of the perpetrator or his personal trust relationship between him and the owner or the rightful owner of the property to illegally seize property or the right to property, commits deception or misleads him. A relationship of trust between a fraudster and a victim may be based not only on legal grounds, but also on other circumstances that determine a relationship of trust: personal acquaintance, recommendation of relatives, a specific situation, etc.      

Abuse of trust is a specific type of deception (deception of trust) and therefore closely relates to deception in a close sense. A distinctive feature of this act is that the victim, being in a state of delusion, voluntarily transfers property or the right to property.      

The acquisition of the right to property should be understood as such actions when the victim transfers to the perpetrator various kinds of documents confirming the legal possibility of acquiring, by presenting (presenting), this or that property. These are various lottery tickets, theater tokens for clothes, receipts, power of attorney, etc.      

The crime in question should be considered over when the property has been seized and the perpetrator has a real opportunity to use or dispose of it at his discretion.      

Fraud should be distinguished from theft, since when committing theft, the perpetrators can also resort to deception in order to enter a room, dwelling, or other storage facility and secretly steal property. However, when committing theft, deception is just a condition that facilitates the further secret seizure of property, and therefore does not cause the transfer of valuables from the owner to the perpetrator. Unlike theft in fraud, deception acts as the main reason for the transfer of property to the subject, who turns it to his advantage. The difference also lies in the fact that during theft, property is secretly stolen in addition to and against the will of the victim. Fraud, on the contrary, is characterized as a "voluntary" transfer of property by the deceived owner or owner to the guilty person. In addition, an important feature of fraud is the transfer of property to the ownership of a person with certain powers in relation to this property. Therefore, the self-serving seizure of property transferred to a person for purely technical operations (to look after abandoned items) without giving the subject the appropriate powers constitutes theft, not fraud. Theft is punishable from the age of 14, and fraud from the age of 16.      

On the subjective side, fraud is expressed in direct intent and selfish purpose: the perpetrator realizes that he is illegally taking possession of someone else's property or acquiring the right to it through deception or abuse of trust, anticipates the possibility or inevitability of causing real damage and desires it.      

The subject of fraud is an individual, a sane person who has reached the age of 16.      

The current criminal law, defining the concept of fraud, provides for a number of circumstances in which the crime in question is recognized as more socially dangerous. These circumstances are taken into account by the legislator as qualifying signs of fraud. The list of qualifying and especially qualifying signs for fraud is the same as for the appropriation and embezzlement of someone else's entrusted property: by a group of persons by prior agreement; repeatedly; using a person's official position; by an organized group; on a large scale; a person who had two or more previous convictions for embezzlement or extortion.      

Regarding the sign "using a person's official position", the Supreme Court of the Republic of Kazakhstan in the Regulatory Resolution "On Judicial practice in cases of Embezzlement" dated July 11, 2003 in paragraph Article 20 clarifies that the receipt by an official or a person performing managerial functions in a commercial or other organization of money, securities and other material assets for committing an act (inaction) that he or she is actually unable to carry out due to lack of official authority or inability to use his or her official position should be qualified if there is intent to seize these values are considered fraud.      

If a person receives money or other valuables for transfer to an official or a person performing managerial functions as a bribe or an object of commercial bribery and, without intending to do so, appropriates them, the deed should be qualified as fraud. At the same time, if the actions of the perpetrator form the appearance of another person's intent to give a bribe, then his act must additionally be qualified as incitement to give a bribe.      

The crimes provided for in Parts 1 and 2 of art. 177 of the Criminal Code of the Republic of Kazakhstan are crimes of moderate severity.      

The crime provided for in Part 3 of Article 177 of the Criminal Code of the Republic of Kazakhstan refers to serious 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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