Comment to article 202. Violation of the procedure for issuing equity securities of the Criminal Code of the Republic of Kazakhstan and the Criminal Code of the Republic of Kazakhstan
Approval of a prospectus for the issue of equity securities containing knowingly false information, as well as approval of a knowingly false report on the issue of equity securities —
are punishable by a fine in the amount of two hundred to five 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 a term of four to six months, or by correctional labor for a term of one to two years, or by imprisonment for a term of up to three years with a fine in the amount of up to one hundred 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 it.
The Law of the Republic of Kazakhstan "On the Securities Market" dated July 2, 2003 (as amended and supplemented) regulates the relations arising during the issue and circulation of equity securities, regardless of the type of issuer, as well as the specifics of the creation and activities of professional participants in the securities market.
They can be governmental or non-governmental.
The public danger of violating the procedure for issuing equity securities is expressed in the fact that as a result of its commission, significant damage is caused to the economy of our state.
The object of the crime is the social relations that arise during the issue and circulation of equity securities.
In accordance with paragraph 86 of Article 1 of the Law of the Republic of Kazakhstan "On the Securities Market", a security is a document certifying property rights, the exercise or transfer of which is possible only upon presentation. The security must comply with the prescribed form and contain the necessary details.
The securities of the Republic of Kazakhstan are:
- shares, bonds, promissory notes, cheque, deposit or savings certificate, shares, bearer bank savings books and other types of equity securities recognized as securities by an authorized body in accordance with the procedure established by law;
- derivative securities recognized as such in accordance with the legislation;
- equity securities of foreign issuers issued in accordance with the laws of other states, the circulation of which in the territory of the Republic of Kazakhstan is allowed in accordance with the procedure established by the authorized body; - mortgage certificates, bills of lading and other types of administrative documents having the status of equity securities in accordance with the legislation of the Republic of Kazakhstan.
Paragraph 88 of Article 1 of the said law clarifies that equity securities are securities having homogeneous characteristics and details within a single issue, placed and traded on the basis of uniform conditions for this issue.
Equity securities can be issued in documentary and non-documentary form. A documentary form of securities issue (clause 20, Article 1 of the Law) is a form of issue in which property rights to equity securities are recorded in the register and, in addition, issued on paper or other tangible media with the ability to directly read the contents of the equity security without using special technical means. An undocumented form of securities issue (clause 4 of art. 1 of the Law) is a form of issue in which property rights to equity securities are recorded in the register and can be confirmed by a securities certificate (in the form of a set of electronic records).
From the objective point of view, the crime in question forms a number of alternative actions: approval of a prospectus for the issue of equity securities containing knowingly false information, as well as approval of a knowingly false report on the issue of equity securities.
A prospectus for the issue of equity securities (Clause 62, Article 1 of the said law) is a document containing information about the issuer, its financial condition, the securities expected to be sold, the volume of the issue, the number of securities in issue, placement, circulation, payment of dividends (remuneration), repayment and other information provided for the state registration.
The issuer (clause 90 of Article 1 of this Law) is a legal entity that, in accordance with the current legislation of the Republic of Kazakhstan, issues equity securities, banknotes or paper money.
The placement of securities is the alienation of securities by the issuer to the first owners through the conclusion of a civil transaction. Placement of securities is allowed only after registration of the securities issue.
The issue of equity securities is a set of securities of the same issuer that provide the same amount of rights to the owners and have the same conditions of issue. At the same time, all securities of the same issue must have one state registration number. The issue of securities is carried out by issuers in order to form their authorized capital or attract borrowed funds.
The issuer is obliged to submit to the registration authority the prospectus of the issue, which must contain data on the financial and economic activities of the issuer and the balance sheet as of the end of the last quarter before making a decision on the issue of equity securities, the methodology for determining the amount of income, etc.
All transactions with securities must be reflected in accounting and reporting documents.
In accordance with Article 22 of the Law of the Republic of Kazakhstan "On the Securities Market", the issuer is obliged to provide potential investors with the opportunity to familiarize themselves with the securities issue prospectus.
False information is false, inaccurate, or incomplete information. These include information affecting the interests of investors: changes in the list of persons who are members of the issuer's management bodies; changes in the size of the share in the authorized capital of the issuer's shareholders who are members of the bodies of the issuer and its subsidiaries and dependent joint-stock companies; changes in the list of shareholders of the issuer; changes in the list of legal entities, etc. (Parts 2 and 4, Article 22 of the Law of the Republic of Kazakhstan "On the Securities Market").
When regulating the issue of state registration of the issue of equity securities, the legislation requires the authorized state body and its officials to verify the compliance of the information entered in the issue prospectus with the actual financial condition of the issuer (Chapter 2 of the noted Law of the Republic of Kazakhstan).
Crimes are considered completed from the moment of their approval, which contains knowingly false information or a knowingly unreliable report on the issue of equity securities.
The subject of a crime may only be officials of the state body authorized to register equity securities and approve reports on the results of the issue and placement of equity securities, as well as heads of issuing organizations who knowingly entered false information into the securities issue prospectus or signed such a prospectus.
The subjective side of the analyzed crime is characterized by the presence of only direct intent. A person is aware that he approves a prospectus for the issue of securities containing knowingly false information, as well as approves a knowingly false report on the issue of equity securities and wishes to do so.
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 adoption: NO Body that adopted the act: 180000000000 Region of operation: 100000000000 Registration number of the NPA assigned by the normative body: 167 Status of the act: new Scope of legal relations: 028000000000 Form of the act: COMM Legal force: 1900 Language of the act: rus
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