Commentary on Article 223. Deception of Consumers of the Criminal Code of the Republic of Kazakhstan
1. Measuring short, underweighing, miscalculating, misleading consumers regarding the consumer properties or quality of goods (services), or other deception of consumers in shops or at other enterprises engaged in the sale of goods or provision of services to the public, regardless of their form of ownership, or by citizens registered in the sphere of trade (services), provided that these acts are committed on a significant scale, —
shall be punishable by 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 by involvement in community service for a period of one hundred and eighty to two hundred and forty hours, or by corrective labour for a period of one to two years, or by arrest for a period of up to six months.
2. The same acts committed:
a) by a person previously convicted of deception of consumers;
b) by a group of persons upon prior conspiracy or by an organized group;
c) on a large scale, —
shall be punishable by deprivation of liberty for a period of up to two years, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.
Note. Deception shall be considered to have been committed on a significant scale if it has caused consumers damage in an amount exceeding one third of the monthly calculation index; on a large scale — in an amount of no less than three monthly calculation indices.
Deception of consumers is currently one of the most widespread crimes in the sphere of trade. Taking into account the prevalence of cases of consumer deception, it can be stated that the right of citizens in the Republic of Kazakhstan to quality service and good-quality products is violated everywhere and on a daily basis. The expansion of retail networks, the freedom of prices established by product owners, and the large number of small and individual businesses operating in the sphere of trade and services, which sometimes possess only elementary professional skills, contribute to the existence and spread of negative factors motivating unlawful conduct by employees in trade and the service sector.
The public danger of deception of consumers is determined by the high importance of trade relations, as a result of which significant damage is caused to victims.
The object of this crime is the social relations arising in the sphere of trade and the provision of services to the public, as well as consumer markets, which regulate the activities of economic entities in this sphere and protect the rights and interests of consumers, including their material interests.
A consumer has the right to receive full-fledged service that does not involve violations of legislation, as well as the right to demand compliance with their lawful rights. At the same time, the demands made in defence of one's interests must be lawful, that is, they must comply with the Constitution of the Republic of Kazakhstan, including the Law of the Republic of Kazakhstan "On Protection of Consumer Rights."
The market is a natural system in which supply and demand must remain in equilibrium for the market. As is known, supply is provided by trade organizations and companies; demand is generated by citizens. Deception of consumers violates and undermines the order of market relations in the sphere of the sale of goods and the provision of services to the public.
The consumer properties or quality of goods or services are determined by a standard, sample, description, established expiration date and represent a normatively defined characteristic of the goods (services), which, where necessary, is specified in the contract. Consumer properties or quality of goods (services) may include the expiration date, warranty period, the manufacturer's obligation to ensure the possibility of repair and technical maintenance of the goods, the safety of the goods (services), and other properties significant to the consumer.
The Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan "On the Practice of Application by Courts of Legislation on the Protection of Consumer Rights" dated July 25, 1996 (as subsequently amended and supplemented) states that information about goods (services) must contain, on a mandatory basis: designations of standards, information about the main consumer properties of goods and services, including, with regard to food products, information about composition, weight, volume, caloric content and other characteristics; price and terms of purchase, warranty period, rules and conditions for effective and safe use, service life and expiration date, as well as information about the actions to be taken by the consumer and the possible consequences of failure to take such actions after the expiration of the relevant periods, the legal address of the manufacturer and the location of the organization authorized by it to receive claims, carry out repairs and provide technological maintenance.
The consumer must also be provided with information about the certification of goods and services, if such certification is mandatory, and about the rules for the sale of goods and performance of work, as well as information that the goods have been previously used or that a defect in them has been remedied.
The objective side of the crime is expressed both in active actions and in inaction. Actions constituting deception are expressed in measuring short, underweighing, miscalculating, misleading consumers regarding the consumer properties or quality of goods (services), or other forms of consumer deception. Deception committed through inaction may include failure to return change, failure to provide consumers with information about the properties and quality of goods, etc.
In the dispositions of certain provisions of criminal law, deception is directly specified as a method of committing a crime (fraud — Article 177 of the Criminal Code of the Republic of Kazakhstan; causing property damage through deception or abuse of trust — Article 182 of the Criminal Code of the Republic of Kazakhstan), while in other provisions, factual characteristics of an action are specified, from which it is evident that deception is the method of committing the crime (manufacturing or sale of counterfeit money or securities — Article 206 of the Criminal Code of the Republic of Kazakhstan). In each of these crimes, deception possesses individual and distinctive characteristics that depend on the nature of the object of encroachment, the motive or purpose.
Deception is the intentional distortion of the actual state of affairs or concealment of the truth that the guilty person was obliged to disclose, aimed at misleading another person in order to induce that person, of their own free will, to perform certain actions or refrain from performing them, for the purpose of achieving a specific criminal result.
Measuring short and underweighing (underfilling, underweighting, placing less than the required quantity) constitute the transfer of goods in quantities that do not correspond to the concluded contract and established standards or other conditions determining the weight, volume and other quantitative parameters of the goods being transferred. Measuring short consists in the consumer receiving goods and services in smaller quantities as a result of the guilty person's deceptive actions (short measurement, underfilling). In the case of underweighing, the consumer is supplied with goods of a lower weight than that agreed upon with the seller (use of falsified weighing instruments and other measuring devices). In this regard, the method by which the quantitative parameters of the goods have been changed in deviation from the standard or contract is irrelevant, for example, in cases of preliminary packaging and weighing.
Miscounting (incorrect calculation of the price of goods and services, incorrect return of money to the consumer) constitutes a deviation by the seller or the person providing the service from the previously agreed or announced price without the consumer's knowledge. In the case of miscounting, deceptive actions result in the buyer being charged a different amount for the goods (an inflated purchase amount or an understated amount of change). Miscounting may also include the deliberate incorrect indication of a price where its amount is determined by regulatory legal acts and is not established by agreement with the consumer, miscounting when goods are sold individually, etc.
Misleading consumers regarding the consumer properties or quality of goods consists of providing deliberately distorted information for the purpose of influencing the buyer's decision-making. This includes cases involving false or insufficiently complete information about certain properties of goods, their date of manufacture, grade, country of manufacture, concealment of the price list, alteration of price tags, etc. Distortion means a discrepancy between the information that the consumer should receive and the actual properties and quality of the goods being sold or the services being provided (diluting dairy products with water, mixing products of the same type but belonging to different categories, etc.). Objectively, such information is already distorted at the moment it is provided.
Other forms of consumer deception are aimed at misleading the consumer regarding contractual terms that are significant to them, for example, home delivery, installation and after-sales service; selling lower-grade goods at the price of higher-grade goods, processing a regular order as an urgent order, etc. Other forms of deception include any actions by the guilty person aimed at obtaining from consumers amounts exceeding the cost of the purchased goods or services provided (sale of falsified goods, exaggeration of the complexity and volume of work actually performed, processing a regular order as an urgent order, exaggeration of the quantity of raw materials consumed, etc.).
In paragraph 15 of its Normative Resolution "On Certain Issues of Qualification of Crimes in the Sphere of Economic Activity" dated June 18, 2004, the Supreme Court of the Republic of Kazakhstan provides an explanation that persons who have committed deception of consumers are subject to criminal liability even in cases where the fact of deception is established during control and inspection activities aimed at identifying and preventing such acts.
Persons who have committed deception of consumers but are not registered as entrepreneurs in the sphere of trade (services), or are not employed by trade or other enterprises providing services to the public, are not subjects of the crime предусмотрed by Article 223 of the Criminal Code. Deception of consumers committed by such persons should be qualified as fraud under Article 177 of the Criminal Code of the Republic of Kazakhstan.
A mandatory condition for criminal liability under Part 1 of Article 223 of the Criminal Code of the Republic of Kazakhstan is the commission of deception of consumers on a significant scale. According to the note to this Article, deception is considered to have been committed on a significant scale if it has caused damage to the consumer in an amount exceeding one third of the monthly calculation index.
The subject of the crime may be employees of organizations engaged in the sale of goods or the provision of services to the public who are authorized to conclude the relevant transactions in whole or in part, as well as individual entrepreneurs. Persons selling goods or providing services without the appropriate authorization (licence) cannot be held liable under Article 223 of the Criminal Code of the Republic of Kazakhstan, since their actions fall under the elements of the crime предусмотрed by Article 190 of the Criminal Code of the Republic of Kazakhstan, "Illegal Entrepreneurship."
The subjective side of the crime is characterized by direct intent. The guilty person realizes that, by measuring short or using other deceptive actions, they are withholding a certain portion of the goods purchased by the buyer or obtaining excess money from the customer, foresees the causing of significant damage and desires this result.
A qualified form of deception of consumers is the commission of this act: a) by a person previously convicted of deception of consumers; b) by a group of persons upon prior conspiracy or by an organized group; c) on a large scale.
The guilty person shall bear liability for deception of consumers under Part 2 of Article 223 of the Criminal Code of the Republic of Kazakhstan if the conviction for the previously committed crime has not been removed or expunged in accordance with the procedure established by law.
The characteristics of a group of persons upon prior conspiracy and an organized group are considered in the preceding elements of crimes (commentary on Parts 2 and 3 of Article 31 of the Criminal Code of the Republic of Kazakhstan on this subject).
According to the note to Article 223 of the Criminal Code of the Republic of Kazakhstan, deception of consumers on a large scale is recognized as deception that has caused damage to the consumer in an amount exceeding no less than three monthly calculation indices.
Commentary from 2007 on the Criminal Code of the Republic of Kazakhstan by BORCHASHVILI I.Sh., Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences.
Date of amendment of the act: 02.08.2007
Date of adoption of the act: 02.08.2007
Place of adoption: NONE
Body that adopted the act: 180000000000
Territorial scope of application: 100000000000
Registration number of the normative legal act assigned by the rule-making body: 167
Status of the act: new
Sphere of legal relations: 028000000000
Form of the act: COMMENTARY
Legal force: 1900
Language of the act: Russian
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