Commentary to article 220. Illegal use of bank funds of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. The use by the bank's employees of the bank's own funds and (or) the bank's borrowed funds to issue knowingly irrevocable loans or make transactions that are knowingly unprofitable for the bank, as well as the provision of unreasonable guarantees from the bank or unreasonable preferential terms to the bank's customers or other persons, if these acts have caused major damage to a citizen, organization or state, —
are 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 arrest for a period of four to six months, or by correctional labor for a period of up to two years., or imprisonment for a term of up to three years with a fine in the amount of up to three hundred monthly calculation indices or in the amount of wages or other income of the convicted person for a period of up to three months or without it and with deprivation of the right to hold certain positions or engage in certain activities for up to three years.
2. Knowingly incorrect or knowingly untimely transfer by bank employees of sums of money, including foreign currency funds to bank accounts of clients, if this act has caused major damage to a citizen, organization or the state., -
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 imprisonment for up to one year with a fine in the amount of one hundred to two hundred monthly calculation indices or in the amount of wages or other income of the convicted person for a period of one to two months or without it and with deprivation of the right to hold certain positions or engage in certain activities for up to three years.
The public danger of crime is expressed in undermining the normal functioning of banking relations and causing significant damage to the economy of our state.
The object of the crime is social relations arising in connection with the implementation of the process of using the bank's funds. An additional object of the crime is the interests of creditors and clients of the bank.
The subject of the crime can be either the bank's own funds or those attracted. The bank's own funds are its authorized capital and equity capital. The authorized capital of the bank is formed through the sale of shares or contributions from the founders. Equity is the value of the bank's assets. Funds raised are funds received by the bank on credit, collateral, deposit, as well as for the provision of other banking services. Loans (loan transactions) are provided by the bank to other persons on repayment and payment terms, in accordance with the Regulations on Internal Policy approved by the Supervisory Board. Repayment of loans can be secured by a penalty, pledge, guarantee, surety, and other means. Other transactions should also be carried out on terms of profitability, for example, factoring transactions (acquisition of rights to demand payment from the buyer of goods, works or services), with acceptance of the risk of non-payment, or forfeting transactions (payment of debt obligations of the buyer of goods, works or services) by purchasing promissory notes without turnover to the seller. The issuance of irrevocable loans or the commission of transactions unprofitable for the bank using its own funds and (or) attracted funds of the bank are carried out knowingly illegally.
The objective side of this crime is characterized by:
1 - the use by the bank's employees of the bank's own funds and (or) the bank's borrowed funds for the issuance of knowingly irrevocable loans;
2 - making transactions that are obviously unprofitable for the bank;
3 - providing unreasonable guarantees from the bank;
4 - providing unreasonable preferential terms to the bank's customers or other persons;
- causing major damage to a citizen, organization, or state;
- the causal relationship between the above actions and the consequences that have occurred.
The first two ways of committing this crime are related to the use of the bank's own and borrowed funds to issue knowingly irrevocable loans and make transactions that are unprofitable for the bank and consist in non-compliance with the conditions for crediting and concluding transactions.
Conducting loan operations in the form of providing a loan in cash is one of the types of banking operations. With this type of lending, a prerequisite is the repayment of the loan, which can be secured by collateral, guarantee, surety, or other means (in accordance with the terms of the agreement).
An exceptional case of granting a loan without collateral is the provision of a blank loan, i.e. an unsecured loan. The decision to grant a blank loan is made by the bank's Credit Committee, subject to the reliability of the bank's client and the positive credit record of the served client. In this case, the risk of repayment of the loan lies with the bank itself or the development bank of Kazakhstan.
The third way to commit a crime is to violate the terms of warranty operations. In accordance with paragraph "d" of Part 3 of art.30 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities" dated August 31, 1995 (as amended and supplemented), banks may carry out guarantee operations: issuing sureties, guarantees and other obligations for third parties providing for their execution in cash. These operations, as well as loan operations, must be carried out on the terms of repayment and payment. Repayment conditions are provided in the same way as in loan transactions.
Granting unreasonable preferential terms means: entering into a transaction that, by its nature, purpose, characteristics and risk, the bank would not enter into with customers who are not persons with special relations with it; charging remuneration and fees for performing a banking transaction or accepting collateral lower than that required from other customers. Preferential terms provided to the bank's clients or other persons with special relations with the bank are considered unjustified. Such persons include: any official or senior employee of this bank, as well as their close relatives; an individual or legal entity that is a major shareholder of this bank, or an official of a major participant in the bank, as well as their close relatives; a legal entity in relation to which this bank is a major participant, officials of this legal entity, their close relatives. A major participant in a legal entity is a direct or indirect owner of more than ten percent of the voting shares (contributions of participants) of this legal entity.
The crime is considered completed from the moment of causing major damage, described by the legislator in the note to art. 189 of the Criminal Code of the Republic of Kazakhstan.
The subject of the crime is a special bank employee who performs banking operations.
On the subjective side, the crime is characterized by both direct and indirect intent. The person is aware that he is using the bank's money improperly or providing unreasonable guarantees or unreasonable preferential terms, anticipates the possibility of causing major damage and wants to either deliberately allow these consequences to occur or is indifferent to their occurrence.
220 of the Criminal Code of the Republic of Kazakhstan, the legislator refers to the qualifying features of Part 2 of Article 220 of the Criminal Code of the Republic of Kazakhstan: deliberately incorrect or deliberately untimely transfer by bank employees of sums of money, including foreign currency funds to bank accounts of clients, if this act has caused major damage to a citizen, organization or state.
According to the Instruction "On approval of the Rules for opening, maintaining and closing customer bank accounts in banks of the Republic of Kazakhstan", approved by By the Resolution of the Board of the National Bank of the Republic of Kazakhstan dated June 2, 2000, bank accounts can be opened and maintained in both national and foreign currencies. A bank account is opened upon conclusion of a bank account agreement between the bank and the account holder. Under the agreement, the bank undertakes to accept money received in favor of the account holder, execute his orders to transfer (issue) the corresponding amounts of money to him or to third parties, and provide other services provided for in this agreement. The procedure and time period for crediting money is set by the contract. Incorrect and untimely transfer, for criminal liability to occur, must be committed knowingly and cause major damage to a citizen, organization or state.
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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