Commentary on Article 241. Violation of the Legislation of the Republic of Kazakhstan on Accounting and Financial Reporting of the Criminal Code of the Republic of Kazakhstan
1. Evasion by a person authorized to maintain accounting records of documenting information prescribed by the legislation of the Republic of Kazakhstan, or the entry by such person into accounting documentation of knowingly false information about the economic and financial activities of an organization, as well as the destruction of accounting documentation before the expiry of the periods for its retention, where such acts cause major damage, —
shall be punishable by a fine in the amount of up to eighty monthly calculation indices, or corrective labor in the same amount, or involvement in community service for a period of up to eighty hours, or arrest for a period of up to twenty days, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to five years.
Note. A person who commits an act provided for in this Article for the first time shall be released from criminal liability in the event of voluntary compensation for the damage.
The public danger of this act lies in the fact that violations of the legislation of the Republic of Kazakhstan on accounting and financial reporting at enterprises, institutions and organizations may lead to the commission of certain abuses, which most often take the form of embezzlement of material assets, evasion of taxes and other mandatory payments to the budget, etc.
The object of this criminal misdemeanor is the established procedure for maintaining accounting records and financial reporting, regardless of the departmental affiliation of the organization, enterprise or institution, which is regulated by the Law of the Republic of Kazakhstan dated February 28, 2007, “On Accounting and Financial Reporting,” the Rules for Maintaining Accounting Records approved by Order No. 241 of the Minister of Finance of the Republic of Kazakhstan dated March 31, 2015, and the Rules for Organizing Accounting approved by Resolution No. 270 of the Board of the National Bank of the Republic of Kazakhstan dated August 24, 2012.
The subject matter of the criminal misdemeanor is accounting documentation. Pursuant to Article 7 of the Law of the Republic of Kazakhstan “On Accounting and Financial Reporting,” accounting documentation includes primary documents, accounting registers, financial statements and accounting policies. Accounting entries are made on the basis of primary documents.
The objective element of the offense under consideration consists of committing one of the following acts:
evasion by a person authorized to maintain accounting records of documenting information prescribed by the legislation of the Republic of Kazakhstan;
entry by a person authorized to maintain accounting records into accounting documentation of knowingly false information about the economic and financial activities of an organization;
destruction of accounting documentation before the expiry of the periods for its retention.
Evasion of documenting information means evasion of recording information in accounting documents that is required to be reflected therein in accordance with the legislation of the Republic of Kazakhstan.
The entry into accounting documentation of knowingly false information about the economic and financial activities of an organization is expressed in entering into documents information that does not correspond to reality and is inaccurate.
Accounting documentation must be provided in paper or electronic form. Pursuant to Article 6 of the Law of the Republic of Kazakhstan “On Accounting and Financial Reporting,” individual entrepreneurs and organizations shall ensure the maintenance of accounting records and the preparation of financial statements in the state and (or) Russian languages. In accordance with Article 11 of this Law, individual entrepreneurs and organizations are obliged to retain primary documents, accounting registers on paper and (or) electronic media, financial statements, accounting policies, and electronic data processing programs for the period established by the legislation of the Republic of Kazakhstan.
Destruction of accounting documentation before the expiry of the periods for its retention means the physical destruction of such documents without observing the prescribed retention periods.
By its legal structure, the offense of violating the legislation of the Republic of Kazakhstan on accounting and financial reporting is a material offense and is considered completed from the moment the consequence in the form of causing major damage to the economic or financial activities of an organization occurs. Pursuant to Subparagraph 38) of Article 3 of the Criminal Code, major damage, as applied to this criminal misdemeanor, means damage caused to an individual in an amount exceeding two hundred monthly calculation indices, or damage caused to an organization or the state in an amount exceeding two thousand monthly calculation indices.
From the subjective perspective, the criminal misdemeanor is committed with direct or indirect intent. The person realizes that they are evading the documentation of information prescribed by the legislation of the Republic of Kazakhstan, or are entering knowingly false information about the economic and financial activities of an organization into accounting documentation, or are destroying accounting documentation before the expiry of the periods for its retention; foresees the possibility or inevitability of causing major damage, desires such consequences or is indifferent to their occurrence.
The subject of the criminal misdemeanor is special. It may only be a person authorized to maintain accounting records, regardless of their position or rank (for example, an ordinary accountant, the head of an organization's accounting department, as well as other persons authorized to maintain accounting records). In the case of destruction of accounting documentation before the expiry of the periods for its retention, the subject of the crime may be any sane person who has reached the age of 16.
Pursuant to Article 8 of the aforementioned Law, the management or individual entrepreneur shall agree upon and (or) approve the accounting policies and ensure the organization of accounting. It follows from this that responsibility for organizing accounting rests with the management of the organization or the individual entrepreneur. Pursuant to Article 9 of the said Law, the head of the accounting service is the chief accountant or another official who ensures the maintenance of accounting records, the preparation and submission of financial statements, and the formulation of accounting policies.
Paragraph 4 of the Rules for Organizing and Maintaining Accounting Records establishes that the head of the accounting service is an official who ensures the maintenance of accounting records, the preparation and submission of financial statements, the formulation of accounting policies, the preparation of other internal documents on accounting matters, as well as their submission to the head of the organization (or a person acting in their capacity) or another management body for approval.
An individual entrepreneur may be recognized as the person authorized to maintain accounting records, i.e. the subject of this criminal offense, if they do not have an accounting service and maintain the accounting records themselves.
The act provided for in Article 241 of the Criminal Code is classified as a criminal misdemeanor.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan, by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, Member of the Working Group on the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.*
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