Comment to article 189. Obstruction of lawful entrepreneurial activity of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
Restriction of the rights and legitimate interests of an individual entrepreneur or commercial organization, depending on the organizational and legal form or form of ownership, as well as restriction of independence or other illegal interference in the activities of an individual entrepreneur or commercial organization, if these acts are committed by an official using his official position, as well as committed in violation of a judicial act that has entered into legal force or causing major damage, —
are punishable by a fine in the amount of three hundred to eight hundred monthly calculation indices or in the amount of wages or other income of the convicted person for a period of three to eight months, or by deprivation of the right to hold certain positions or engage in certain activities for up to five years with a fine in the amount of up to one hundred monthly calculation indices or in the amount of wages or other income convicted for a period of up to two months, or correctional labor for a term of up to two years, or arrest for a term of up to six months, or imprisonment for a term of up to two years.
Note. Major damage in the articles of this chapter is recognized as damage caused to a citizen in an amount one hundred times higher than the monthly calculation index, or damage caused to an organization or the state in an amount five hundred times higher than the monthly calculation index established by the legislation of the Republic of Kazakhstan at the time of the commission of the crime.
The public danger of this crime lies in the fact that the obstruction of legitimate entrepreneurial activity restricts the right of everyone to freely use their abilities and property for entrepreneurial activity, and also damages the authority of public authorities whose competence includes the regulation of economic activity. The commission of this crime grossly violates the provisions contained in part 10 of the Civil Code of the Republic of Kazakhstan, according to which the state guarantees freedom of entrepreneurial activity and ensures its protection and support.
The object of this crime is the interests of legitimate business, the normal state of the economy, the interests of consumers, partners and other persons, organizations, and the financial interests of the state, since as a result of obstructing legitimate business activities, the state does not receive appropriate profits in the form of taxes or other mandatory payments. An additional object is the authority of state power. The objective side of the crime is formed by actions aimed at obstructing legitimate business activities.
Legitimate entrepreneurial activity should be recognized as the activities of citizens and legal entities aimed at generating net income, carried out in accordance with the procedure provided for by the Legislation of the Russian Federation. The Civil Code of the Republic of Kazakhstan, the Law of the Republic of Kazakhstan "On Private Entrepreneurship" dated January 31, 2006 and other legislative acts regulating entrepreneurial activity.
Mandatory signs of legitimate entrepreneurial activity are the person's previous registration with the relevant authorities or the presence of another special permit (license) to engage in this activity.
This article identifies the main types of obstruction of entrepreneurial activity.:
- restriction of the rights and legitimate interests of an individual entrepreneur or a commercial organization, regardless of the organizational and legal form or form of ownership;
- limitation of the independence of an individual entrepreneur or a commercial organization;
- other illegal interference in the activities of an individual entrepreneur or a commercial organization. The essence of the above-mentioned act is that an official prevents an individual entrepreneur or a commercial organization (individual or legal entity) from fully or partially carrying out its activities in accordance with the procedure and boundaries established for it by law.
Entrepreneurship, in accordance with Article 10 of the Civil Code of the Republic of Kazakhstan, is an initiative activity of citizens and legal entities, regardless of the form of ownership, aimed at making a profit or other income by satisfying demand for goods (works, services), based on private ownership (individual entrepreneurship) or on the right of economic management of a state enterprise (state entrepreneurship).
A legal entity in the form of a state-owned enterprise, a business partnership or a production cooperative may establish a commercial organization, in accordance with Part 2 of Article 34 of the Civil Code of the Republic of Kazakhstan.
The entrepreneurial activity of individual entrepreneurs and commercial organizations is regulated: The Civil Code of the Republic of Kazakhstan; The Law of the Republic of Kazakhstan "On Private Entrepreneurship" dated January 31, 2006; the Law of the Republic of Kazakhstan "On State Registration of Legal Entities" dated April 17, 1995 (as amended and supplemented); Decrees of the President of the Republic of Kazakhstan having the force of law "On the Protection of the rights of Citizens and Legal Entities to freedom of Entrepreneurial Activity" dated April 27 April 1998 (as amended and supplemented).
The regulatory act establishing the list of activities for which a special permit (license) is required is the Law of the Republic of Kazakhstan "On Licensing" dated April 17, 1995 (as amended and supplemented).
The restriction of the rights and legitimate interests of an individual entrepreneur or a commercial organization is carried out by an official making decisions or interfering in legitimate business activities by giving instructions, making demands, etc., which create unfavorable conditions for the activities of an individual entrepreneur or commercial organization. It may also occur in case of unlawful refusal to register, in case of evasion from registration, in case of unlawful refusal to issue a special permit (license) for carrying out certain activities.
The Supreme Court of the Republic of Kazakhstan in paragraph 3 of the Regulatory Resolution "On certain issues of qualification of crimes in the sphere of economic activity" dated June 18, 2004. It notes that the restriction of the rights and legitimate interests of an individual entrepreneur or a commercial organization should be understood as decision-making, giving instructions, making demands, imposing prohibitions and other actions of an official that to one degree or another hinder the effective implementation of legitimate business activities (unlawful refusal to register, evasion from registration or issuing a license, imposing a ban on engaging in an activity that is not prohibited by law).
The right to make decisions and conduct business independently is the basic economic right of an entrepreneur. If the independence of an individual entrepreneur or a commercial organization is limited, these rights are violated by the perpetrator. These actions can be expressed, for example, in demanding that a specific person be excluded from the list of co-founders, in imposing clients on the bank to obtain a loan without collateral, in giving unreasonable prohibitions on engaging in certain activities not prohibited by law, in illegally transferring the powers of an individual entrepreneur or a commercial organization to another person, in establishing illegal control over their activities, and etc .
In the above-mentioned Regulatory Resolution on this issue, the Supreme Court of the Republic of Kazakhstan clarifies that the restriction of independence to carry out their activities should be understood as infringement of the right of an individual entrepreneur or a commercial organization to make decisions independently, it can be expressed in interference in the formation of a list of co-founders, in coercion to cooperate, including to service in a particular bank, in the establishment of illegal control over the activities of an individual entrepreneur or a commercial organization, in creating other conditions, preventing an entrepreneurial structure from fully exercising its legal capacity.
Other illegal interference in the activities of an individual entrepreneur or a commercial organization is such types of abuse by an official of his official powers or their excess, which do not relate to the listed forms of criminal behavior. These include the illegal seizure of premises, material assets, seizure of a bank account, etc. Illegal interference in business activities related to the restriction of the rights and legitimate interests of an individual entrepreneur or a commercial organization entails criminal liability if these actions are committed by an official using his official position.
Other persons may be held criminally liable for these actions only if they have restricted the rights and legitimate interests of an entrepreneur in violation of a judicial act that has entered into force, or when their actions have caused major damage.
Along with the above-mentioned signs forming the composition of the crime in question, another condition for criminal liability is obstruction of business activity committed in violation of a judicial act that has entered into force or caused major damage.
Along with the above-mentioned signs forming the composition of the crime in question, another condition for criminal liability is obstruction of business activity committed in violation of a judicial act that has entered into force or caused major damage.
Refusal of state registration or evasion from registration may be challenged in court. Other actions (inactions) that impede legitimate business activities may also be subject to challenge. If the court recognizes an illegal refusal to register or evasion from registration, infringing on the rights of an individual entrepreneur or a commercial organization, then the actions of the guilty person fall under the signs of obstruction of legitimate business activities, expressed in violation of a judicial act that has entered into force.
According to the notes to Article 189 of the Criminal Code, major damage is recognized as damage caused to a citizen in the amount one hundred times higher than the monthly calculation index, or damage caused to an organization or the state in the amount five hundred times higher than the monthly calculation index established by the legislation of the Republic of Kazakhstan at the time of the commission of the crime.
Criminal liability under this rule occurs only in the following alternative cases:
- or in case of obstruction of legitimate business activities by an official using his official position;
- or in case of obstruction of legitimate business activities in violation of a judicial act that has entered into legal force;
- or in case of obstruction of legitimate business activities that caused major damage. The crime is considered completed from the moment of committing one of the criminal consequences listed in the disposition of the analyzed article. At the same time, the legislator provided for the infliction of major damage as an independent sign. Therefore, according to this feature, the analyzed crime belongs to the material composition.
The subject of the crime is a special one: an official, the concept of which is given in paragraph 3 of the note to art. 307 of the Criminal Code, or a civil servant.
On the subjective side, a crime can only be committed intentionally. The perpetrator is aware that he is obstructing the legitimate entrepreneurial activity of an individual entrepreneur or a commercial organization, anticipates the onset of socially dangerous consequences and desires this. The motives of the crime may be different (revenge, hatred, etc.), and they do not affect qualifications.
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
