Comment to Article 191. Illegal banking activity of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Implementation of banking activities (banking operations) without registration or without a special permit (license) in cases where such a permit (license) is required, or in violation of licensing conditions, if this act has caused major damage to a citizen, organization or state, or is associated with the extraction of income on a large scale., —      

is punishable by a fine in the amount of five hundred to eight hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of five to eight months or by imprisonment for a term of up to three years with a fine in the amount of up to fifty monthly calculation indices or in the amount of the convicted person's salary or other income for a period of up to one month or without as such.    

2. The same act:      

a) committed by an organized group;    

b) associated with the extraction of income on a particularly large scale;      

c) committed by a person previously convicted of illegal banking or illegal entrepreneurship, —      

is punishable by imprisonment for a term of two to six years with or without confiscation of property.

     The criminal law norm contained in Article 191 of the Criminal Code of the Republic of Kazakhstan is special in relation to the general norm on liability for illegal entrepreneurship (Article 190 of the Criminal Code of the Republic of Kazakhstan). The crime provided for in Article 191 of the Criminal Code of the Republic of Kazakhstan encroaches on the established banking procedure, violates the rules and procedures in the field of financial and credit relations.      

The public danger of illegal banking is expressed in the fact that as a result of this crime, the economy of our state suffers damage.      

Banking activities of citizens and legal entities are subject to mandatory state registration. Banking activities are regulated: 

The Law of the Republic of Kazakhstan "On Banks and Banking Activities" dated August 31, 1995 (as amended and supplemented);

By the Law of the Republic of Kazakhstan "On the National Bank of the Republic of Kazakhstan" dated March 30, 1995 (as amended and supplemented dated 01/27/1996 and 06/11/2004); 

The Law of the Republic of Kazakhstan "On Amendments to certain Legislative Acts of the Republic of Kazakhstan on anonymous accounts" dated September 27, 1996.      

The object of the crime is public relations in the field of banking, which regulate the activities of commercial banks and other credit organizations engaged in banking operations aimed at the development and strengthening of the banking system of our state.      

A bank is a legal entity that is a commercial organization and authorized to carry out banking activities.      

The banking system of the Republic of Kazakhstan has two levels. The upper (first) level is represented by the National Bank of the Republic of Kazakhstan, which is the central bank of the state. All other banks belong to the lower (second) level.      

The official status of the bank is determined by the permission of the National Bank of the Republic of Kazakhstan to open it, the state registration of a legal entity as a bank with the Ministry of Justice of the Republic of Kazakhstan and the availability of a license from the National Bank of the Republic of Kazakhstan to conduct banking operations. Banks of the Republic of Kazakhstan, as financial institutions, have the right to carry out banking operations, the list of which is given in art. 30 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities".      

The National Bank of the Republic of Kazakhstan is the only licensee of this type of activity in the Republic. Licensing of banking activities (banking operations) is carried out in order to ensure the protection of consumer interests, improve the quality of public services, etc.      

The second prerequisite for carrying out banking activities (banking operations) is the registration of a legal entity as a bank or as a non-banking financial institution.      

Thus, banks and other financial institutions established on the basis of any form of ownership, which have been duly registered and have a special permit (license) from the National Bank of the Republic of Kazakhstan have the right to carry out banking operations. No legal entity that does not have the official status of a bank can be called a bank or describe itself as engaged in banking activities. The license of the National Bank of the Republic of Kazakhstan for banking activities should provide for a specific list of banking operations, as well as the currency in which these banking operations can be performed.      

The objective side of the crime in question is expressed in the presence of one of the following signs:      

in carrying out banking activities (banking operations) without registration;      

in carrying out banking activities (banking operations) without special permission (license) in cases where such permission (license) is required.;      

in carrying out banking activities (banking operations) in violation of licensing conditions.      The disposition of this article is complex, consisting of acts independent of each other, therefore, to qualify the actions of the perpetrator under Article 191 of the Criminal Code, it is not necessary to simultaneously have all the signs of this crime.      

The license issued by the authorized body indicates the list of operations that are assigned to a particular bank.

For example, the license grants the bank the right to conduct transactions only in the national currency, while the bank, contrary to the content of the license, conducts transactions in foreign currency. Such activities must be declared invalid with all the legal consequences that follow from this.      

Paragraph 2 of art.6 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities in the Republic of Kazakhstan" recognizes banking transactions carried out without a license from the National Bank of the Republic of Kazakhstan as invalid.      

It should be borne in mind that as a result of the actions specified in the disposition of this article, major damage must be caused to citizens, organizations or the state, or they were associated with the extraction of income on a large scale. These conditions are mandatory, therefore, the absence of these consequences will indicate the absence of corpus delicti.      

Major damage is damage caused to a citizen in the amount of one hundred times the monthly calculation index, or damage caused to an organization or state in the amount of five hundred times the monthly calculation index established by the legislation of the Republic of Kazakhstan at the time of the commission of the crime (note to art. 189 of the Criminal Code of the Republic of Kazakhstan).      

Large-scale income is recognized as income, the amount of which exceeds five hundred monthly calculation indices (note to art. 190 of the Criminal Code of the Republic of Kazakhstan).      

The subject of the crime is a sane individual who has reached the age of 16. As a rule, these are the heads of banks and other non—bank financial institutions engaged in illegal banking activities. In accordance with art .20 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities in the Republic of Kazakhstan", the following are recognized as senior employees of the bank: chairman and members of the Board of Directors; Chairman and members of the Management Board; other bank managers who coordinate and control the activities of the bank's structural divisions and have the right to sign documents on the basis of which banking operations are conducted; the bank's chief accountant and his deputies; the first head and chief accountant of the bank's branch. At the same time, senior staff are appointed and elected to the position with the consent of the National Bank of the Republic of Kazakhstan.      

On the subjective side, the analyzed crime is committed intentionally. The perpetrator is aware that he carries out banking activities without registration or without special permission (license) in cases where such permission (license) is required, or in violation of licensing conditions, anticipates that as a result of his actions it is possible or inevitable that major damage will be caused to citizens, organizations or the state, or these actions will be associated with the extraction of income on a large scale, and wants criminal consequences. The motives of the crime can be different. As a rule, this crime is committed with a selfish motive.       Illegal banking activity is recognized as a qualified type if it is committed:      

a) an organized group;      

b) is associated with the extraction of income on a particularly large scale;      

c) is committed by a person who has previously been convicted of illegal banking or illegal entrepreneurship.      A crime is recognized as committed by an organized group if it is committed by a stable group of persons who have previously united to commit one or more crimes (Part 3 of Article 31 of the Criminal Code of the Republic of Kazakhstan).      

Income in a particularly large amount is recognized as income, the amount of which exceeds two thousand monthly calculation indices (note to art. 190 of the Criminal Code of the Republic of Kazakhstan).      

A person who has previously been convicted of illegal banking or illegal entrepreneurship is considered to be a person who has already been convicted in the past under Articles 190 or 191 of the Criminal Code of the Republic of Kazakhstan, if the conviction for the specified crime has not been expunged or withdrawn in accordance with the procedure established by law by the time the person is brought to criminal responsibility under Article 191 of the Criminal Code of the Republic of Kazakhstan.

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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