Comment to article 286. Presentation of deliberately false information about banking transactions The Code of the Republic of Kazakhstan on Administrative Offences
Banks and organizations engaged in certain types of banking operations knowingly provide false information about transactions on bank accounts of legal entities or individuals, as well as the issuance of sureties, guarantees and other obligations that are not knowingly secured by the actual financial condition of the bank, unless these actions have caused major damage to an individual or legal entity or the state., -
they entail a fine in the amount of fifty monthly calculation indices.
Note. A large amount of damage caused to an individual is recognized as an amount exceeding two thousand, to a legal entity - twenty thousand monthly calculation indices at the time of the commission of the offense.
The commented article establishes the administrative responsibility of banks and organizations engaged in certain types of banking operations for knowingly providing false information about transactions on bank accounts of legal entities or individuals, as well as for issuing sureties, guarantees and other obligations that are not knowingly secured by the actual financial condition of the bank, if these actions did not cause major damage to the physical either to a legal entity or to the state.
The generic object of the offense provided for in Article 286 of the Administrative Code is the procedure for taxation and tax administration of tax relations established in the tax legislation of the Republic of Kazakhstan and protected by the state.
The direct object of the administrative offense provided for in the commented article is the procedure established by the Tax Code of the Republic of Kazakhstan and protected by the state for banks to provide information to state revenue authorities and issue security obligations necessary for taxation and tax administration purposes.
The subject of an administrative offense under the commented article of the Administrative Code is special. It can only be a legal entity that, according to the legislation of the Republic of Kazakhstan, is a bank or an organization that performs certain types of banking operations. Other persons may not be held administratively liable under the commented article, even if their actions formally show signs of the objective side of this administrative offense.
The concepts of banks, organizations engaged in certain types of banking operations, as well as the concept of banking operations themselves are defined in the banking legislation of the Republic of Kazakhstan.
According to paragraph 1 of Article 1 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities in the Republic of Kazakhstan", a bank is a legal entity that is a commercial organization that, in accordance with the law on Banks, is authorized to carry out banking activities.
According to Article 5 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities", an organization that carries out certain types of banking operations is a legal entity that is not a bank, which, on the basis of a license from an authorized body or in accordance with the laws of the Republic of Kazakhstan, is authorized to conduct certain types of banking operations provided for by the law on banks.
According to paragraph 2 of Article 30 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities", banking operations include: 1) accepting deposits, opening and maintaining bank accounts of legal entities; 2) accepting deposits, opening and maintaining bank accounts of individuals; 3) opening and maintaining correspondent accounts of banks and organizations engaged in certain types of banking operations; 4) opening and maintaining by banks metal accounts of individuals and legal entities, which reflect the physical the number of refined precious metals and precious metal coins owned by this person; 5) cash operations: acceptance and issuance of cash by banks and the National Postal Operator, including their exchange, exchange, recalculation, sorting, packaging and storage; 6) transfer operations: execution of orders from individuals and legal entities for payments and money transfers; 7) accounting operations: accounting (discount) of promissory notes and other debt obligations of individuals and legal entities; 8) bank loan operations: provision by a bank, a mortgage organization, an organization other than a bank engaged in brokerage and (or) dealer activities in the securities market, or subsidiaries of the national management holding in the field of the agro-industrial complex of loans in cash on the terms of payment, urgency and repayment; 9) organization of exchange operations with foreign currency currency, including the organization of exchange operations with foreign currency in cash; 10) collection of banknotes, coins and valuables; 11) acceptance of payment documents for collection (except for promissory notes); 12) opening (issuing) and confirmation of a letter of credit and fulfillment of obligations under it; 13) issuance by banks of bank guarantees providing for monetary fulfillment; 14) issuance by banks of bank guarantees and other obligations for third parties providing for monetary fulfillment.
The objective side of the offense provided for in the commented article is characterized by the commission of actions by the offender that did not cause major damage:
1) by providing deliberately false information about transactions on bank accounts of legal entities or individuals to the state revenue authorities and their officials,
2) to issue sureties, guarantees and other obligations to the state revenue authorities that are obviously not secured by the actual financial condition of the person issuing them.
At the same time, according to the note to the commented article, a large amount of damage caused to an individual is an amount exceeding 2,000 MCI, to a legal entity – 20,000 MCI at the time of the offense. At the same time, the amount of damage caused to the state is not determined by the legislator in the note to the commented article.
If the amount of damage caused by the offense exceeds the amounts specified in the note, then the commented article is not applicable due to the increased public danger of the illegal act committed and the need to bring the perpetrators to criminal responsibility under the Criminal Code.
With regard to the article being commented on, deliberately false information about transactions on bank accounts of legal entities or individuals should be understood as information that does not correspond to reality about transactions on bank accounts of legal entities and individuals, when the persons providing them initially know (cannot but know) about the false nature of the information they provide.
Sureties, guarantees and other obligations that are obviously not secured by the actual financial condition of the bank should be understood as such sureties, guarantees and other obligations issued by the bank to the state revenue authority that do not allow the bank to fulfill them in full or in part due to their insecurity by the actual condition of the person who issued them, when the persons who issued them initially know (cannot know) about it.
An administrative offense is considered to have been committed when the state revenue authority or its official has received knowingly false information or knowingly unsecured bank guarantees, guarantees and other security obligations from a bank or an organization engaged in certain types of banking operations.
Taking into account the special subject composition of offenders (banks and organizations engaged in certain types of banking operations), the subjective side of the offense provided for in Article 286 of the Administrative Code is not subject to determination due to the existence of a legal requirement to establish guilt as a condition for bringing to administrative responsibility, only in relation to individuals. Legal entities are administratively liable for the mere fact that they have committed an unlawful act or omission, for which administrative liability is provided for in the Administrative Code, without taking into account the guilt of the officials of the legal entity who committed this act.
The commented article establishes the sanction for the commission of the offense provided for in it in the form of a fine.
According to the commented article, the fine for committing an administrative offense provided for in the commented article is 50 MCI.
The fine is fixed and cannot be arbitrarily changed by the body imposing it.
A fine is imposed by the state revenue authorities or the court if the case of an administrative offense is being considered in court.
At the same time, in accordance with the general requirement of Part 5 of Article 55 of the Administrative Code, the collection of a fine from an offender does not exempt him from fulfilling the duty imposed on him by law or a legitimate requirement of the state revenue authority, eliminating violations committed by him and compensating for the damage caused by him.
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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