Comment to article 205. Violation of the rules of securities transactions of the Criminal Code of the Republic of Kazakhstan and the Criminal Code of the Republic of Kazakhstan
1. Violation of the rules of securities transactions, which caused major damage, —
is punishable by a fine in the amount of five hundred to one thousand monthly calculation indices or in the amount of the convicted person's salary or other income for a period of five to ten months, or by deprivation of the right to hold certain positions or engage in certain activities for up to five years, or by arrest for up to six months, or by imprisonment for up to one year. years with or without deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.
2. The same act committed repeatedly either by a group of persons by prior agreement or by an organized group, —
is punishable by a fine in the amount of one to two thousand monthly calculation indices or in the amount of the convicted person's salary or other income for a period of ten months to one year, or by deprivation of the right to hold certain positions or engage in certain activities for up to five years, or by arrest for up to six months, or by imprisonment for up to three years with the deprivation of the right to hold certain positions or engage in certain activities for up to three years with or without confiscation of property.
The public danger of a crime consists in intentionally circumventing the rules established by the state, as a result of which the state budget does not receive the stipulated income from these operations, the procedure for controlling the circulation of securities and the procedure for their registration is violated.
The object of the crime under consideration is the social relations that arise during the circulation of securities, the interests of the state and investors in the effective development of the economy of our state.
The objective side of this crime is to violate the rules for conducting transactions with securities.
Securities transactions are understood as the implementation of various civil law transactions with securities. The procedure for securities transactions is subject to the legal regime of movable property, and this, in turn, presupposes the possibility of free movement of securities from one holder to another, taking into account the specific requirements that apply to the procedure for transferring rights to securities. The Law of the Republic of Kazakhstan "On the Securities Market" dated July 2, 2003 regulates relations arising from the issue of non-government securities, the circulation of all securities, as well as relations related to the implementation of state regulation of the securities market.
Article 4 of the aforementioned Law defines the types of equity securities in circulation in the territory of our republic. In addition, the aforementioned Law of the Republic of Kazakhstan provides an exhaustive list of rules for conducting transactions with securities.
According to the Law of the Republic of Kazakhstan "On the Securities Market", all securities must pass a mandatory state commission.
The scope of this crime covers such actions with securities as registration, approval of reports, transactions and registration of transactions with securities, listing of securities (admission and accounting of securities that are the subject of transactions on the stock exchange or other securities markets). All these actions are performed by the stock exchange, which is a legal entity operating in the form of a joint-stock company. Its tasks are to organize trading in securities on the securities market, guarantee transactions with them, ensure effective circulation of securities, and create the necessary conditions for the redistribution of financial resources.
A necessary condition for criminal liability is a violation of the rules for conducting transactions with securities, which resulted in major damage, the concept of which is given by the legislator in a note to art. 189 of the Criminal Code of the Republic of Kazakhstan.
The subject of the crime is a special official, whose sphere of activity includes duties related to securities transactions.
The subjective side of the analyzed crime is characterized by the presence of only direct intent. The perpetrator is aware of his actions, by virtue of fulfilling his official duties, implements the rules for conducting transactions with securities, anticipates the possibility or inevitability of major damage, and, in pursuit of material gain, desires their occurrence.
At the same time, some authors believe that the crime provided for in Article 205 of the Criminal Code of the Republic of Kazakhstan can be committed either intentionally or negligently.
The qualifying signs of the crime being analyzed are the commission of the same actions repeatedly either by a group of persons by prior agreement or by an organized group.
Repeated violation of the rules for conducting securities transactions will be recognized as actions in the case of the guilty of two or more acts provided for in one or different parts of Art. 205 of the Criminal Code of the Republic of Kazakhstan.
In order to impute the following qualifying feature, it is required to establish the participation in its commission of two or more persons who possess the characteristics of the subject of this act and who have agreed in advance to commit this crime together.
A crime is considered to have been committed by an organized group if it was committed by a stable group of persons who had previously united to commit one or more 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.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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