Comment to article 211-2. Violation by the person to whom the right (claim) has been assigned under a bank loan agreement or a micro-loan agreement of the requirements and restrictions imposed by the legislation of the Republic of Kazakhstan on the relationship between the lender and the borrower  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. Changing the terms of a bank loan agreement or a micro-loan agreement without complying with the requirements stipulated by the banking legislation of the Republic of Kazakhstan or the legislation of the Republic of Kazakhstan on microfinance organizations, -

     entails a fine in the amount of one hundred and fifty monthly calculation indices.

     2. Assignment by a person to whom the right (claim) has been assigned under a bank loan agreement or a microcredit agreement concluded with an individual to other persons not provided for by the laws of the Republic of Kazakhstan "On Banks and Banking Activities in the Republic of Kazakhstan" and "On Microfinance Organizations", -

     entails a fine in the amount of one hundred and fifty monthly calculation indices.

     3. Collection of fees and payments from the debtor upon transfer of the creditor's rights (claims) under the assignment agreement not provided for by the bank loan agreement or the microcredit agreement, -

     entails a fine in the amount of one hundred and fifty monthly calculation indices.

     Notes.

     1. For the purposes of this article, a person to whom a right (claim) has been assigned under a bank loan agreement is understood to be a collection agency, a bank, an organization engaged in certain types of banking operations, a subsidiary of a bank acquiring doubtful and uncollectible assets of a parent bank, an organization specializing in improving the quality of second-tier banks' loan portfolios, a special financial company, established in accordance with the legislation of the Republic of Kazakhstan on project financing and securitization, under a securitization transaction.

     2. For the purposes of this article, a person to whom a right (claim) has been assigned under a micro-loan agreement is understood to be a collection agency, a microfinance organization, or a special financial company established in accordance with the legislation of the Republic of Kazakhstan on project financing and securitization during a securitization transaction.

     The commented article establishes administrative liability for violation by the person to whom the right (claim) has been assigned under a bank loan agreement or a micro-loan agreement of the requirements and restrictions imposed by the legislation of the Republic of Kazakhstan on the relationship between the lender and the borrower.

     The generic object of offenses provided for in art. 211-2 of the Administrative Code is the procedure established in the legislation of the Republic of Kazakhstan and protected by the state for conducting business in the field of finance.

     The direct object of administrative offenses provided for in the commented article is the procedure for carrying out the activities of banks and microfinance organizations when assigning rights.

     The subjects of the offense provided for in art. 211-2 of the Administrative Code, by virtue of a direct indication of this in the commented article, are the person to whom the right (claim) has been assigned under a bank loan agreement, as well as the person to whom the right (claim) has been assigned under a microcredit agreement.

     At the same time, according to the note to the commented article, a person to whom the right (claim) has been assigned under a bank loan agreement is understood to be a collection agency, a bank, an organization engaged in certain types of banking operations, a subsidiary of a bank acquiring dubious and uncollectible assets of the parent bank, an organization specializing in improving the quality of loan portfolios of second-tier banks., a special financial company established in accordance with the legislation of the Republic of Kazakhstan on project financing and securitization, in a securitization transaction.

     A person to whom the right (claim) has been assigned under a micro-loan agreement is understood to be a collection agency, a microfinance organization, or a special financial company established in accordance with the legislation of the Republic of Kazakhstan on project financing and securitization during a securitization transaction.

     The offences provided for in the commented article are formal. In order to calculate and impose a fine on an offender under the commented article, it is not necessary to establish the fact and amount of damage caused to third parties by committing an offense.  

     Part 1 of the commented article establishes administrative responsibility for changing the terms of a bank loan agreement or a micro-loan agreement without complying with the requirements provided for by the banking legislation of the Republic of Kazakhstan or the legislation of the Republic of Kazakhstan on microfinance organizations.

     The objective side of the offense provided for in Part 1 of Article 211-2 of the Administrative Code is that the offender commits illegal actions in the form of changing the terms of a bank loan agreement or a micro-loan agreement without complying with the requirements provided for by the banking legislation of the Republic of Kazakhstan or the legislation of the Republic of Kazakhstan on microfinance organizations.

     Given the initial nature of the bank loan or microcredit agreements concluded between the creditor and the debtor in accordance with banking legislation or legislation on microfinance organizations, their subsequent modification, regardless of the assignment of rights under them, is possible only in compliance with applicable banking legislation or legislation on microfinance organizations. Accordingly, non-compliance with special legislation when changing the terms of contracts is illegal and forms the final composition of the offense provided for in part 1 of the commented article.

     For committing an offense provided for in Part 1 of the commented article, a person is punished with a fine.  

     The fine for committing an offense under Part 1 of Article 211-2 of the Administrative Code is 150 MCI.

     This penalty is imposed on the offender by the National Bank of the Republic of Kazakhstan or the court, in case the case is considered in court.

     Part 2 of the commented article establishes administrative responsibility for the assignment by a person to whom the right (claim) has been assigned under a bank loan agreement or a micro-loan agreement concluded with an individual to other persons not provided for by the Laws of the Republic of Kazakhstan "On Banks and Banking Activities in the Republic of Kazakhstan" and "On Microfinance Organizations".

     The objective side of the offense provided for in Part 2 of the commented article is characterized by the offender committing illegal actions in the form of assignment to other persons not provided for by the laws of the Republic of Kazakhstan "On Banks and Banking Activities in the Republic of Kazakhstan" and "On Microfinance Organizations".

     The list of persons to whom rights (claims) may be assigned under a bank loan agreement or a micro-loan agreement concluded with an individual is limited to legally defined persons. Accordingly, the assignment of such rights (claims) to other persons not provided for by the laws of the Republic of Kazakhstan is unlawful and forms the final composition of the offense provided for in Part 2 of the commented article.

     For committing an offense provided for in Part 2 of the commented article, a person is punished with a fine.  

     The fine for committing an offense under Part 2 of Article 211-2 of the Administrative Code is 150 MCI.  

     This penalty is imposed on the offender by the National Bank of the Republic of Kazakhstan or the court, in case the case is considered in court.

     Part 3 of the commented article establishes administrative responsibility for charging the debtor commissions and payments upon the transfer of the creditor's rights (claims) under the contract of assignment of the right of claim, not provided for by the bank loan agreement or the agreement on the provision of microcredit.

     The objective side of the offense provided for in Part 3 of the commented article is characterized by the offender committing illegal actions in the form of charging the debtor commissions and payments not provided for in the bank loan agreement or the microcredit agreement upon the transfer of the creditor's rights (claims) under the assignment agreement.

     At the request of subclause 7), clause 1, Article 15 of the Law of the Republic of Kazakhstan "On Collection Activities", the collection agency is obliged, when the creditor assigns rights (claims) under a bank loan agreement or a micro-loan agreement, to prevent the debtor from charging other commissions and payments not provided for in such an agreement.

     Violation of the above-mentioned legislative requirement by the person to whom the right (claim) has been assigned forms the final composition of the offense provided for in Part 3 of the commented article.

     For committing an offense under Part 3 of Article 211-2 of the Administrative Code, the offender is punished with a fine.

     The amount of the fine for committing an offense under Part 3 of Article 211-2 of the Administrative Code is 150 MCI, is fixed and is not subject to change by the body imposing it.  

     This penalty is imposed on the offender by the National Bank of the Republic of Kazakhstan or the court, in case the case is considered in court.

Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:

     Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);

     Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;

     Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);  

     Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);

Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;

     Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;

     Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;

     Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);

     Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);  

     Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;

     Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;

     Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);

     Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;

     Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;  

     Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);  

     Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;

     Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.  

     Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).

Date of amendment of the act:  01.01.2020 Date of adoption of the act:  01.01.2020 Place of acceptance:  100050000000 Authority that adopted the act: 103001000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  5 Status of the act:  new Sphere of legal relations:  029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act:  COMM / CODE Legal force:  1900 Language of the Act:  rus  

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