Comment to Article 216. Intentional bankruptcy of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
Intentional bankruptcy, that is, the deliberate creation or increase of insolvency committed by the head or owner of a commercial organization, as well as by an individual entrepreneur in the personal interests or interests of other persons, causing major damage or other grave consequences, —
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 five to eight months, or by restriction of liberty for a term of up to one year, or by arrest for a term of up to four months, or by imprisonment for a term of up to one year with a fine 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 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 analyzed crime is the order of economic activity, ensuring the faithful fulfillment of legal obligations by debtors and creditors.
Civil legislation contains the concept of bankruptcy of individuals and legal entities in Article 21 of the Civil Code of the Republic of Kazakhstan. It is also provided in the Law of the Republic of Kazakhstan "On Bankruptcy" dated January 21, 1997 (as amended and supplemented). A debtor is considered bankrupt if his insolvency is established by a court or officially declared a debtor by agreement with creditors out of court.
The objective side of deliberate bankruptcy is the deliberate creation or increase of insolvency committed by the head or owner of a commercial organization, as well as by an individual entrepreneur in the personal interests or in the interests of other persons, which caused major damage or other grave consequences.
An out—of-court procedure is a procedure for settling the debts of an insolvent debtor out of court by reaching an agreement between the debtor, and if the debtor is a state-owned enterprise, then a state body authorized to reorganize and liquidate insolvent state-owned enterprises, with creditors on the voluntary liquidation of the debtor under the supervision of creditors or the application of rehabilitation procedures in order to restore the solvency of the insolvent debtor and continue its activities.
A monetary obligation is understood as the obligation of the debtor to pay the creditor a certain amount of money under a civil contract and on other grounds provided for by the Civil Code of the Republic of Kazakhstan.
Mandatory payments to the budget and extra—budgetary funds are taxes, fees and other mandatory contributions to the budget and extra-budgetary funds made in accordance with the procedure and on the terms determined by the legislation of the Republic of Kazakhstan. The debtor is an individual entrepreneur or a legal entity that is unable to satisfy creditors' claims for monetary obligations and/or fulfill the obligation to pay mandatory payments within the time period established by law.
Declaring bankruptcy requires compliance with three mandatory conditions: the debtor should not have enough of his property to cover debts, that is, the asset should be less than the liability.;
The total debt must be at least one hundred and fifty minimum wages; non-payment of the debt lasts for three months from the moment when it was due to be paid.
Intentional bankruptcy, according to clause 26 of art. 1 of the Law of the Republic of Kazakhstan "On Bankruptcy" is the deliberate bringing of a debtor to insolvency by the actions or omissions of the owner of his property or by the bodies of the debtor's legal entity, carried out by him (them) in his own interests or in the interests of other persons.
In accordance with art .5 of the law, the owner of the debtor's property (the body authorized by him), the founder (participant) and (or) officials of the legal entity bear subsidiary responsibility to creditors of the insolvent debtor with the property belonging to them for deliberate bringing of the debtor to insolvency (deliberate bankruptcy).
At the same time, subsidiary liability should be understood as the responsibility of a person, which, in accordance with the legislation or the terms of the obligation, he bears in addition to the responsibility of another person who is the main debtor.
To determine the signs of bankruptcy, it is important to know exactly what amount of monetary obligations and mandatory payments we are talking about. The amount of monetary obligations and mandatory payments are determined at the time of filing an application for declaring the debtor bankrupt, unless otherwise provided by law. To determine whether there are signs of bankruptcy of the debtor, the amount of monetary obligations is taken into account, including the amount owed for goods transferred, work performed and services rendered, loan amounts, including interest payable by the debtor, with the exception of obligations to citizens to whom the debtor is responsible for causing harm to life and health, obligations to pay royalties, as well as obligations to the founders (participants) of the debtor, a legal entity, arising from such participation. The amount of mandatory payments established by the legislation of the Republic of Kazakhstan is taken into account.
The amount of monetary obligations under creditors' claims is considered established if it is confirmed by a court decision that has entered into legal force or by documents attesting to the debtor's recognition of these claims, as well as in other cases provided for by law.
In cases where the debtor disputes the creditors' claims, the amount of monetary obligations and (or) mandatory payments is determined by the court.
Insolvency is an indicator that a legal entity or individual entrepreneur is on the verge of or has already entered bankruptcy.
The intentional creation or increase of insolvency is carried out by various methods. For example, by entering into obviously unprofitable transactions that do not comply with regulatory legal acts, taking on other people's debts as a guarantor, reducing assets, fictitious alienation of property, etc. The act in question can be committed either through action or inaction, when measures are not intentionally taken when insolvency appears and increases.
It is especially important here that, when deciding on the criminal liability of a particular person, it is necessary to establish exactly what real actions he committed or, conversely, did not commit (although he was obliged to commit) in order to artificially create or increase insolvency. The founders (participants) of the debtor, a legal entity, and the owner of the debtor's property are required to take timely measures to prevent the bankruptcy of organizations.
If it is possible to restore his solvency, the insolvent debtor, in accordance with Article 43 of the Law of the Republic of Kazakhstan "On Bankruptcy", may file a petition for the application of a rehabilitation procedure to the authorized body before applying to the court for declaring him bankrupt.
The application must contain a justification for the expediency of applying the specified procedure to the debtor, and a rehabilitation plan for the insolvent debtor is attached to it. The rehabilitation plan for an insolvent debtor should contain specific measures to restore solvency. For example, the debtor may be provided with financial assistance sufficient to repay monetary obligations and mandatory payments. The provision of financial assistance may be accompanied by the assumption of obligations by the debtor or other persons in favor of the persons who provided financial assistance.
Rehabilitation measures may include any organizational, economic, technical, financial, economic, legal and other measures that do not contradict the legislation aimed at preventing the liquidation of an insolvent debtor, as well as a whole range of such measures, including rehabilitation, assignment of the debtor's claims, and the conclusion of a settlement agreement.
The following measures may be taken to ensure the debtor's financial recovery::
- providing financial assistance to the debtor by its founders (participants) and other persons;
- changing the structure of assets and the structure of liabilities of the debtor;
- changing the debtor's organizational structure;
- bringing into line the size of the debtor's authorized capital and the amount of his own funds (capital);
- other measures implemented in accordance with the legislation.
The debtor may be provided with financial assistance by its founders and other persons in the following forms::
placing funds on the debtor's deposit with interest accrual;
provision of sureties (bank guarantees) on debtor's loans;
provision of deferred and/or installment payment;
transfer of the debtor's debt with the consent of his creditors;
refusal to distribute the debtor's profits as dividends and transfer them to the implementation of measures for the debtor's financial recovery;
making an additional contribution to the authorized capital of the debtor;
debt forgiveness to the debtor.
The decision on the terms of financial assistance to the debtor is made by the debtor himself and the person providing him with financial assistance.
A change in the debtor's asset structure may include:
improving the quality of its loan portfolio, including the replacement of illiquid assets with liquid assets;
bringing the maturity structure of assets in line with the terms of obligations, ensuring their fulfillment;
reduction of the debtor's expenses, including servicing the debtor's debts;
sale of assets that do not generate income, as well as assets, the sale of which will not interfere with the debtor's banking operations;
other measures to change the structure of its assets.
If the amount of the debtor's own funds (capital) turns out to be less than the amount of his authorized capital at the end of the reporting month, the debtor is obliged to bring the amount of the authorized capital and the amount of his own funds (capital) into line.
A detailed description of possible rehabilitation procedures is related to the fact that, firstly, whether the debtor will file a petition for rehabilitation procedures, and if so, what is his real role in drawing up a rehabilitation plan and its implementation often determines the conclusion of whether deliberate bankruptcy has taken place.
An obligatory sign of the objective side of deliberate bankruptcy is the presence of a causal relationship between the action or omission of an individual entrepreneur, manager or owner of a commercial organization and the infliction of major damage or other grave consequences. Consequently, the composition of the crime in question is material by design.
Major damage in the crime in question is determined similarly to the procedure specified in the note to art. 189 of the Criminal Code of the Republic of Kazakhstan. Other grave consequences may consist, as judicial practice shows, in significant losses, loss of jobs, disruption of technological processes, non-payment of wages to a significant number of employees, non-payment of taxes, etc., as well as suicide or attempted suicide, and economic consequences.
The subject of the crime is special: the head or owner of a commercial organization or an individual entrepreneur.
The subjective side of the crime presupposes the presence of direct or indirect intent. An individual entrepreneur, head, or owner of a commercial organization is aware that they are creating or increasing insolvency, anticipates the possibility or inevitability of causing major damage or other grave consequences, and is willing or consciously allowing them to occur, or is indifferent to the possibility of causing these consequences.
The motive of the crime is the personal interests of the head or owner of a commercial organization or an individual entrepreneur, or the interests of others.
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
Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases
