Comment to Article 192. False entrepreneurship of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Pseudo-entrepreneurship, that is, the creation of a commercial organization without the intention to carry out entrepreneurial or banking activities aimed at obtaining loans, tax exemption, obtaining other property benefits, or covering up prohibited activities that have caused major damage to a citizen, organization, or state, —      

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 two to five months, or by arrest for up to six months, or by imprisonment for up to three years with a fine in the amount of up to fifty monthly calculation indices or in the amount of wages or other the convicted person's income for a period of up to one month or without it.      

2. The same acts committed:      

a) repeatedly;      

b) a group of persons by prior agreement;      

c) a person authorized to perform state functions, or a person equivalent to him, if they involve the use of his official position. –      

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

3. The acts provided for in the first or second parts of this Article, committed:      

a) an organized group;      

b) a criminal community (criminal organization), -      

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

     The public danger of this crime is expressed in the fact that the founders of a commercial organization have no intention of engaging in the type of entrepreneurial activity for which permission has been obtained and which has been registered in accordance with the procedure established by law, causing significant damage to the economy of our state.      

The object of the crime in question is public relations regarding the implementation of law-based entrepreneurial activities.      

The objective side of the crime is formed by actions to create a commercial organization without the intention to carry out entrepreneurial or banking activities, the purpose of which is to obtain loans, tax exemption, other property benefits or cover up prohibited activities that have caused major damage to citizens, organizations or the state.      

Pseudo-entrepreneurship is understood as the creation of enterprises and other business organizations for the purpose of extracting illegal income and other property benefits without the intention to carry out statutory activities.      The creation of a commercial organization is understood as the commission of actions to formalize the state registration of a legal entity and obtain a license to carry out entrepreneurial or banking activities aimed at making a profit as the main purpose of its activities (art. 34 of the Civil Code of the Republic of Kazakhstan). A commercial organization is recognized as established from the moment of its registration and inclusion in the unified State register (Article 42 of the Civil Code of the Republic of Kazakhstan). But at the same time, its founders should have no intention of carrying out entrepreneurial or banking activities determined by the license obtained.      

If, at the time of the establishment of a commercial organization, a person did not intend and does not intend to carry out those types of activities specified in the constituent documents or the license obtained, then there is a false enterprise. The objective side of the crime is the creation of a fictitious organization in order to obtain various benefits and advantages (loans, credits) under its cover.     

Criminal liability for false entrepreneurship occurs only on condition that the infliction of major damage was the result of fictitious activities of a commercial organization. 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).      

An obligatory sign of the objective side of this crime is the presence of a causal relationship between the creation of a fictitious commercial organization and the consequences in the form of causing major damage.      

The subject of the crime is a sane individual who has reached the age of 16.      

On the subjective side, the crime being analyzed is committed with the direct intent and purpose of "using false entrepreneurship" to obtain a loan or to get rid of taxes, to extract some other property benefit or to cover up prohibited activities.      

In part 2 of Article 192 of the Criminal Code, the legislator provides for qualifying signs:      

a) repeatedly (see: comm. to art. 11 of the Criminal Code);      

b) a group of persons by prior agreement (see: comment to part 2 of art.31 of the Criminal Code);      

c) a person authorized to perform state functions, or a person equated to him, if they involve the use of his official position (see: comment to paragraph "d" of Part 3 of Article 176 of the Criminal Code).      

In Part 3 of the norm in question, the legislator provided for particularly qualifying features:      

a) an organized group (see: comm. to art. part 3 of art. 31 of the Criminal Code);      

b) a criminal community (criminal organization) (see: comm. to art. part 4 of art. 31 of the Criminal Code).      

The crimes provided for in Part 1 of Article 192 of the Criminal Code of the Republic of Kazakhstan are crimes of moderate severity.      

The crimes provided for in Parts 2 and 3 of art. 193 of the Criminal Code of the Republic of Kazakhstan are 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.S.                  

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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