Comment to article 215. Illegal actions in bankruptcy of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Concealment of property or property obligations, information about property, its size, location or other information about property, transfer of property to other ownership, alienation or destruction of property, as well as concealment, destruction, falsification of accounting and other accounting documents reflecting economic activity, if these actions are committed by the head or owner of the debtor organization either as an individual entrepreneur in bankruptcy or in anticipation of bankruptcy and caused major damage, —
is punishable by a fine in the amount of seven hundred to one thousand monthly calculation indices or in the amount of the convicted person's salary or other income for a period of seven months to one year, or correctional labor for a term of one to two years, or restriction of liberty for a term of up to two years, or arrest for a term of four to six months, or imprisonment for a term of up to two years with a fine 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.
2. Unlawful satisfaction of the property claims of individual creditors by the head or owner of the debtor organization or by an individual entrepreneur who knows about his actual insolvency (bankruptcy), knowingly to the detriment of other creditors, if this act has caused major damage., —
is punishable by a fine in the amount of five hundred to seven hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of five to seven months, or correctional labor for up to one year, or restriction of liberty for up to two years, or arrest for up to four months, or imprisonment for up to one year with a fine in the amount of one hundred to two hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of one to two months or without it.
The problem of bankruptcy in Kazakhstan is considered in close relationship with the assessment of the economic development of the country as a whole. Illegal actions in bankruptcy undermine national and international prestige in financial and credit activities, disrupt its normal organization, and cause significant material harm to participants in economic relations.
The public danger of crime is expressed in undermining the normal functioning of economic relations and causing enormous damage to the economy of our state.
The object of the crime under consideration is the procedure for bankruptcy proceedings and satisfaction of creditors' property claims. An additional object of the crime is the property interests of creditors.
An individual entrepreneur who is unable to satisfy creditors' claims may be declared bankrupt by a court decision. From the moment of making such a decision, his registration as an individual entrepreneur becomes invalid. A legal entity may be declared bankrupt by a court decision if it is unable to satisfy creditors' claims. Declaring an organization bankrupt entails its liquidation.
According to Article 21 of the Civil Code of the Republic of Kazakhstan and paragraph 7 of Article 1 of the Law of the Republic of Kazakhstan "On Bankruptcy" dated January 21, 1997 (as amended and supplemented), bankruptcy is the debtor's insolvency recognized by a court decision or officially declared out of court by agreement with creditors, which is the basis for its liquidation.
The debtor, in accordance with paragraph 3 of Article 1 of the above—mentioned law, is a legal entity whose insolvency or insolvency is the basis for applying bankruptcy procedures to it in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan. A creditor, according to clause 13 of Article 1 of the said law, is a person who has property claims against the debtor arising from his civil and other obligations, including obligations to pay wages, royalties, taxes and other mandatory payments to the budget.
In this case, insolvency is understood as the inability of the debtor (an individual entrepreneur or a legal entity) to satisfy creditors' claims for monetary obligations, to make wage settlements with persons working under an employment contract, and to ensure mandatory payments to the budget and off-budget funds. Insolvency is the debtor's inability to fulfill monetary obligations and other monetary claims that are already due.
The following conclusions can be drawn from the above legal provisions:
bankruptcy is recognized as insolvency, that is, the inability of an individual entrepreneur or a legal entity to satisfy creditors' claims related to their economic activities.;
bankruptcy is declared only by a court decision.;
from the moment of the court's decision on bankruptcy, the registration of a citizen as an individual entrepreneur is canceled or a legal entity is liquidated.
The objective side of the crime under Part 1 of art. 215 of the Criminal Code, consists in concealing property or property obligations, information about property, its size, location or other information about property, transfer of property to other ownership, alienation or destruction of property, as well as concealment, destruction, falsification of accounting and other accounting documents reflecting economic activity, if these actions are committed by the head or owner The debtor organization was either an individual entrepreneur in bankruptcy or in anticipation of bankruptcy and caused major damage.
When carrying out the procedure for declaring an organization or individual entrepreneur bankrupt, its creditors have the right to present their claims for obligations not related to their business activities.
Creditors' claims in case of declaring the debtor bankrupt are satisfied at the expense of the debtor's property. Since these claims may exceed the existing possibilities of their real satisfaction, Article 75 of the Law of the Republic of Kazakhstan "On Bankruptcy" establishes the following order of satisfaction of creditors' claims:
- first of all, the demands of citizens to whom the liquidated bankrupt is responsible for causing harm to life or health are satisfied by capitalizing the corresponding time-based payments;
- secondarily, payments are made for wages and compensation to persons who worked under an employment contract, arrears of social contributions to the State Social Insurance Fund, payment of alimony and mandatory pension contributions withheld from wages, as well as remuneration under copyright agreements, except for the cases provided for in Article 78 of this Law.;
- in the third place, creditors' claims for obligations secured by a pledge of the property of the bankrupt being liquidated are satisfied within the amount of the collateral;
- in the fourth turn, arrears in taxes and other mandatory payments to the budget are being paid off;
- fifth, settlements are made with other creditors in accordance with this Law and other legislative acts.
Upon completion of settlements with creditors, the debtor declared bankrupt is released from fulfilling the remaining obligations related to his economic activities and other claims submitted for execution and taken into account when he was declared bankrupt by the court. At the same time, the claims of citizens to whom the debtor declared bankrupt is responsible for causing harm to life or health, as well as other personal claims, remain valid.
The requirements of each queue are satisfied after the requirements of the previous queue are fully satisfied. If the property of the legal entity being liquidated is insufficient, it is distributed among creditors of the appropriate queue in proportion to the amounts of claims to be satisfied, unless otherwise established by law.
Creditors' claims that are not satisfied due to insufficient assets of the liquidated debtor are considered to be settled.
The debtor, according to art. 4 of the Law of the Republic of Kazakhstan "On Bankruptcy", is considered insolvent if he has not fulfilled the obligation within three months from the date of its due date.
An analysis of Part 1 of Article 215 of the Criminal Code of the Republic of Kazakhstan shows that the law provides for five types of illegal actions in bankruptcy, punishable by criminal law:
concealment of property or property obligations, information about the property, its size, location or other information about the property;
transfer of property to other ownership;
alienation of property;
destruction of property;
concealment, destruction, and falsification of accounting and other accounting documents reflecting economic activity. By concealing property or property obligations, information about property, its size, location, or other information about property, it is advisable to understand such actions of the debtor with property or information about it (removing property from the balance sheet, moving it to other people's vaults, distorting information about its volume and ownership, etc.), which allow him to hide his true property status.
The transfer of property to another possession is one of the ways to conceal property, allowing it to remain in the debtor's ownership with the appearance of a change of ownership.
Alienation of property means its withdrawal from the debtor's property by sale, donation and other means. Destruction of property means bringing it to a state where it cannot be used for its intended purpose and is not subject to restoration in this sense, although it remains physically, or provides for the complete physical disappearance of property.
Concealment, destruction, and falsification of accounting and other accounting documents reflecting economic activity are a set of actions with these documents that are designed to conceal or distort documentary data about the real state of the debtor's economic activity.
In accordance with Articles 90-91 of this Law, the court that initiated a bankruptcy case against a liquidated legal entity shall, within one month, decide on declaring the debtor bankrupt and liquidating it. If, during the consideration of the case, it is established that the debtor's property (assets) allows satisfying the claims of all creditors in full, the court decides not to declare the debtor bankrupt. The court's decision is the basis for continuing the liquidation of the debtor in the usual manner. The liquidation of the debtor is carried out by the bankruptcy trustee.
The crime is considered over from the moment of causing major damage. Major damage is determined in the same way as stipulated in the note to art. 189 of the Criminal Code of the Republic of Kazakhstan.
The objective side of Part 2 of Article 215 of the Criminal Code of the Republic of Kazakhstan provides for the commission of unlawful satisfaction of property claims of individual creditors by the head or owner of the debtor organization or by an individual entrepreneur who knows about his actual insolvency (bankruptcy), knowingly to the detriment of other creditors if this act has caused major damage.
The corpus delicti provided for in Part 2 of Article 215 of the Criminal Code of the Republic of Kazakhstan is considered completed from the moment of causing major damage.
The subject of the crime, parts 1, 2 - special: 1) the head or owner of the debtor organization; 2) an individual entrepreneur.
The subjective side of the acts provided for in Parts 1 and 2 of art.215 of the Criminal Code of the Republic of Kazakhstan presupposes the presence of direct or indirect intent. An individual entrepreneur, head, or owner of a debtor organization is aware that they are creating or increasing insolvency, or unlawfully satisfying the property claims of individual creditors to the detriment of other creditors, foresees the possibility or inevitability of causing major damage and is willing or consciously allowing it to be caused, or is indifferent to the possibility of causing this damage.
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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