Comment to Article 228. Abuse of authority of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     The use by a person performing managerial functions in a commercial or other organization of his powers contrary to the legitimate interests of this organization and for the purpose of obtaining benefits and advantages for himself or other persons or organizations, or harming other persons or organizations, if this has entailed causing significant harm to the rights and legitimate interests of citizens or organizations or the legally protected interests of society or States, —      

is 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 community service for a period of one hundred and eighty to two hundred and forty hours, or by correctional labor for a period of one to two years, or by arrest for a period of three to six months, or imprisonment for up to two years.

     Note. In the articles of this Code, a person performing managerial functions in a commercial or other organization is recognized as a person who permanently, temporarily or by special authority performs organizational and administrative or administrative duties in an organization that is not a state body, a local government body or an organization in which the state's share is at least thirty-five percent.

     The public danger of abuse of authority consists in violating the procedure for managing commercial activities, harming the rights and legitimate interests of citizens or organizations, the interests of society and the state.      The direct object of the crime in question is the established procedure for the normal operation of a commercial or other organization. An additional object is the rights and legitimate interests of citizens or organizations, legally protected interests of society and the state.      

On the objective side, abuse of authority is recognized as a crime with a combination of three mandatory signs:      

1) an act is the use by a person performing managerial functions in a commercial or other organization of his powers contrary to the legitimate interests of this organization.;      

2) socially dangerous consequences – that is, causing significant harm to the rights and legitimate interests of citizens or organizations, or to the legally protected interests of society or the state;      

3) the existence of a causal relationship between the committed act and the consequences provided for by law.      

According to Article 34 of the Civil Code of the Republic of Kazakhstan, commercial organizations are understood as legal entities pursuing profit as the main purpose of their activities.      

Commercial organizations include: joint-stock companies, limited liability partnerships, and other licensed credit organizations. Commercial organizations assume profit-making as the main purpose of their activities.     

According to art . 2 of the Law of the Republic of Kazakhstan "On Non-Profit Organizations" dated January 16, 2001 (as amended and supplemented), a non-profit organization is a legal entity that does not have income extraction as its main purpose and does not distribute the net income received among the participants.      

In accordance with art .4 of this Law, non-profit organizations may be established to achieve social, cultural, scientific, educational, charitable, and managerial goals; protect the rights and legitimate interests of citizens and organizations; resolve disputes and conflicts; meet the spiritual and other needs of citizens; protect public health, protect the environment, develop physical culture and sports; provide legal assistance, as well as for other purposes aimed at ensuring public goods and the benefits of its members (participants).      

In order to achieve their statutory goals, non-profit organizations have the right:      

— open bank accounts in accordance with the procedure established by law;      

— have a seal, stamps and letterheads with the full name of the organization in the state and Russian languages, as well as an emblem (symbols) registered in accordance with the established procedure;      

— to own or manage separate property, as well as an independent balance sheet or estimate; — to acquire and exercise property and personal non-property rights;      

— create other legal entities, unless otherwise provided by legislative acts;      

— open branches and representative offices;      

— join associations and unions, as well as participate in their activities;      

— to use the funds for the implementation of the objectives stipulated in the Charter;      

— be a plaintiff and a defendant in court;      

— exercise other rights that do not contradict the legislation of the Republic of Kazakhstan (art.5).      

Non—profit organizations are required to: - comply with the legislation of the Republic of Kazakhstan;      

— pay taxes and other mandatory payments to the budget in accordance with the established procedure;      

— be responsible for their obligations with all property belonging to them (except for institutions);      

— be responsible in accordance with the legislative acts of the Republic of Kazakhstan.      

A non-profit organization provides information about its activities to state statistical and tax authorities, founders and other persons in accordance with the legislation of the Republic of Kazakhstan and the founding documents of this organization.     

228 of the Criminal Code "Abuse of authority" indicates the use by a person performing managerial functions in a commercial or other organization of his powers contrary to the legitimate interests of this organization. This means that such a person unfairly fulfills the obligations assigned to him to manage the organization, which leads to the undermining of its business reputation, the imposition of sanctions by regulatory authorities, the suspension of its economic development, the severance of relations with counterparties, and distrust on the part of potential customers. At the same time, a violation of the interests of the service will be evident if it is the legitimate interests of a commercial or other organization where this official works that are violated, therefore in such cases there is an encroachment on the proper, normal activities of these organizations.

The legitimate interests of a commercial or other organization should be understood as certain activities of a legal entity that do not contradict legislation in the field of public law and do not harm other organizations in accordance with the registered statutory activities and other regulatory legal acts. Acting contrary to the legitimate interests of this organization means causing material or moral harm to it. Abuse of authority, therefore, presupposes an act by a person that is incompatible with the legitimate interests of a particular commercial or other organization.      

The consequences of abuse of authority include causing "significant harm." Significant harm is an estimated category. The signs of "significant harm" are not specified in the law. The law defines harmful effects in a generalized form. This construction of the crimes included in this chapter is absolutely correct, since "... the harmful consequences can be very diverse and it is not possible to list them in the law."      

For example, B., being the general director of the joint-stock company "MMM", decided to extract for himself material benefits from the activities of this company. As a result of the establishment of an over-the-limit salary by the chief accountant S., a large amount of bonuses was accrued, which B. received illegally. B.'s actions were correctly qualified under Article 228 of the Criminal Code, but in this case they did not find a proper legal assessment of the actions of the chief accountant S.      

When committing the crime in question, the consequences are divided into tangible and intangible. Causing real damage to these organizations can manifest itself in direct material damage (causing major losses to the organization, job cuts, loss of property, misuse of property, cessation of production of socially significant products, reduction of various funds, etc.). Material damage can also be caused in the form of lost profits, i.e. non-receipt by a commercial or other organization of those property benefits or proceeds that they would have received if there had been no abuse of authority (for example, temporary appropriation by an official of this organization of property, funds, etc.).      

The consequences can be recognized as significant, expressed in the economic ruin of victims, in major accidents, in causing death or serious harm to health, in disrupting the implementation of economic, social and other functions significant to society by public organizations.      

Significant non-material harm includes: improper recruitment; red tape; undermining the prestige of representatives of a commercial organization; assistance in illegal recruitment to this organization, etc.      

This crime is considered completed from the moment it occurs, as a result of abuse of authority, significant harm to the rights and legitimate interests of citizens or organizations, or to the legally protected interests of society or the state.      

The subject of a crime is a person who performs managerial functions in a commercial or other organization. According to the note to Article 228 of the Criminal Code, a person performing managerial functions in a commercial or other organization is recognized as a person who permanently, temporarily or by special authority performs organizational and administrative or administrative duties in an organization that is not a state body, a local government body or an organization in which the state's share is at least 35%.      

Organizational and administrative functions include the organization and management of the workforce (hiring, firing, assignment of responsibilities, labor organization, etc.).      

Administrative and economic functions include property management (accounting, receipt, repair of administrative buildings, property security, household work, etc.).      

On the subjective side, the analyzed crime presupposes the presence of guilt in the form of direct intent and a special purpose. The perpetrator is aware that he uses his functions contrary to the legitimate interests of this organization, and desires this in order to either obtain benefits and advantages for himself, other persons or organizations, or harm other persons or organizations. The motives that the perpetrator is guided by are, as a rule, mercenary in nature and do not matter for the qualification of this crime.      

In order to apply the criminal law uniformly, the Supreme Court of the Republic of Kazakhstan should adopt an appropriate resolution explaining the issues of qualifying crimes against the interests of service in commercial and other organizations in relation to the current criminal legislation of the Republic of Kazakhstan, including explanations on the establishment of organizations in which the state's share is at least 35%.

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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