Comment to article 183. False bankruptcy The Code of the Republic of Kazakhstan on Administrative Offences
False bankruptcy, that is, a deliberately false announcement by the founder (participant), an official, bodies of a legal entity, as well as an individual entrepreneur about his insolvency in order to mislead creditors in order to obtain a deferral or installment payment of payments due to creditors or a discount on debts, as well as for non-payment of debts, if this act does not contain signs of a criminal offense acts, -
entails a fine for small business entities in the amount of three hundred, for medium-sized businesses - in the amount of four hundred, for large business entities - in the amount of seven hundred monthly calculation indices.
The commented article establishes administrative liability for false bankruptcy.
The offender is brought to administrative responsibility under the commented article only if there are no signs of a corresponding criminally punishable act in the offender's actions. Otherwise, offenders - individuals or officials of a legal entity - are subject to criminal liability for unlawful actions during rehabilitation and bankruptcy in accordance with the norms of the Criminal Code. In this regard, initially, the actions of a person during rehabilitation and bankruptcy should be checked by law enforcement agencies for the presence or absence of signs of a criminal offense and grounds for bringing the perpetrator to criminal responsibility.
The generic object of the offense provided for in Article 183 of the Administrative Code is the procedure established in the legislation of the Republic of Kazakhstan and protected by the state for conducting business in the Republic of Kazakhstan.
The direct object of the offense provided for in Article 183 of the Administrative Code is the procedure established by the legislation of the Republic of Kazakhstan and protected by the state for recognizing business entities as bankrupt.
The subjects of the offense provided for in Article 183 of the Administrative Code are persons who have made appropriate decisions and declared themselves or persons dependent on them bankrupt (founders (participants), officials, bodies of a legal entity, individual entrepreneurs) in the absence of signs of insolvency for them.
The subjective side of the unlawful act provided for in Article 183 of the Administrative Code for offenders – individuals (including officials of a legal entity and individual entrepreneurs) is characterized by guilt in the form of intent. The guilt of a person is revealed by his mental attitude towards the illegal acts committed by him and their harmful consequences.
The subjective side of the offense, the subjects of which are legal entities, is not subject to determination due to the existence of a legal requirement to establish guilt as a condition for bringing to administrative responsibility, only in relation to individuals. According to the legislation of the Republic of Kazakhstan on administrative responsibility, legal entities are administratively liable for the mere fact that they have committed an illegal act or omission, for which administrative liability is provided for in the Administrative Code, without taking into account the guilt of the officials of the legal entity who committed this act.
The objective side of the offense provided for in the commented article is characterized by the commission by a person of illegal (and for individuals – also guilty) actions, expressed in a false declaration of their insolvency or the insolvency of persons dependent on them in the absence of signs of bankruptcy in their activities.
The purpose of the offense is to mislead creditors about the insolvency of a business entity in order to obtain deferral or installment payments due to creditors or discounts on debts, as well as for non-payment of debts.
The composition of an administrative offense provided for in Article 183 of the Administrative Code is formal. To bring to administrative responsibility for its commission, it is not necessary to establish the fact that the offender caused material damage to the state, organization or citizen as a result of the false declaration of bankruptcy of a business entity.
However, if material damage is caused as a result of an offense, such damage may be claimed in full by the person concerned, whose rights and interests have been violated, since bringing the offender to administrative responsibility under the commented article does not exempt him from eliminating the violations and compensating for the damage caused.
An administrative penalty in the form of a fine has been imposed for committing an offense under Article 183 of the Administrative Code.
The amount of the fine for committing an offense under Article 183 of the Administrative Code is differentiated depending on which category of business entities the offender belongs to. In this regard, the body bringing the offender to administrative responsibility must first establish the legal status of this person and the category of entrepreneurship to which he belongs before bringing a person to justice.
Depending on the business category to which the offender belongs, the amount of the fine is:
- for small businesses – 300 MCI,
- for medium–sized businesses - 400 MCI
- for large business entities – 700 MCI.
The amounts of fines are fixed for offenders of each category and are not subject to change by the body imposing them.
Cases of administrative offences provided for in the commented article are considered and administrative penalties for offenders for their commission are imposed by the state revenue authorities or the court, if the case is considered in court.
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:
Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);
Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);
Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;
Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;
Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;
Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);
Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);
Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;
Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;
Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);
Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;
Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;
Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);
Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;
Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.
Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).
Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus
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