Commentary to article 223. Violations related to the illegal acquisition, directly or indirectly, of ten percent or more of the shares of a financial institution without the written consent of the National Bank of the Republic of Kazakhstan  The Code of the Republic of Kazakhstan on Administrative Offences  

     Acquisition by a person, directly or indirectly, of shares of a financial organization in the amount of ten percent or more of the outstanding (minus preferred and repurchased) shares of a financial organization, as well as control or the ability to influence decisions made by a financial organization in the amount of ten percent or more of the outstanding (minus preferred and repurchased) shares of a financial organization without written consent The National Bank of the Republic of Kazakhstan -

     entails a fine for individuals in the amount of two hundred, for legal entities - in the amount of one thousand monthly calculation indices.

     Note. Financial institutions in this article should be understood as a bank, an insurance (reinsurance) organization that manages an investment portfolio.

     The commented article establishes administrative liability for violations related to the illegal acquisition, directly or indirectly, of ten or more percent of shares in a financial institution without obtaining the written consent of the National Bank of the Republic of Kazakhstan.

     The generic object of the offense provided for in Article 223 of the Administrative Code is the procedure established in the legislation of the Republic of Kazakhstan and protected by the state for conducting business in the field of finance.

     The direct object of the administrative offense provided for in the commented article is the procedure established in the legislation of the Republic of Kazakhstan for the acquisition of shares of a financial organization.

     The subjects of the offense provided for in Article 223 of the Administrative Code, by virtue of the direct indication of this in the sanctions of the commented article, are individuals and legal entities.

     The subjective side of the act provided for in Article 223 of the Administrative Code, for the individuals who committed it (including individual entrepreneurs) is characterized by guilt in the form of intent. The guilt of an individual is revealed by his mental attitude towards the illegal acts committed by him and their harmful consequences.

     The objective side of the offense provided for in Article 223 of the Administrative Code is that the offender commits unlawful acts in the form of:  

     1) acquisition, directly or indirectly, of shares of a financial institution in the amount of ten percent or more of its outstanding (minus preferred and repurchased) shares without the written consent of the National Bank of the Republic of Kazakhstan; or

     2) acquisition of the right to control or the ability to influence decisions made by a financial institution in the amount of ten percent or more of the outstanding (minus preferred and repurchased) shares of a financial institution without the written consent of the National Bank of the Republic of Kazakhstan.

     According to the note to the commented article, financial organizations should be understood as a bank, an insurance (reinsurance) organization that manages an investment portfolio.

     At the request of paragraph 1 of art. 17-1 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities in the Republic of Kazakhstan", no person independently or jointly with another (other) person(s) may (may not) directly or indirectly own, use and (or) dispose of ten or more percent of the outstanding (minus preferred and repurchased by the bank) shares of the bank, as well as have control or the ability to influence decisions made by the bank in the amount of ten percent or more of the outstanding (minus preferred and repurchased by the bank) shares of the bank without obtaining the prior written consent of the authorized body. This requirement does not apply to the state or the national managing holding company, an organization specializing in improving the quality of credit portfolios of second-tier banks, subsidiaries of the National Bank of the Republic of Kazakhstan, a single accumulative pension fund if it owns ten or more percent of the outstanding (minus preferred and repurchased by the bank) shares of the bank at the expense of pension assets managing the investment portfolio. in case of ownership, to use and (or) dispose of ten or more percent of the bank's outstanding (minus preferred and repurchased by the bank) shares at the expense of pension assets, as well as in cases provided for by this Law.

     At the request of paragraph 1 of art. 26 of the Law of the Republic of Kazakhstan "On Insurance Activities", no person independently or jointly with another (other) person(s) may (may not) directly or indirectly own, use and (or) dispose of ten or more percent of the outstanding (minus preferred and repurchased insurance (reinsurance) organization) shares of insurance (reinsurance) organizations, and also have control or the ability to influence decisions made by an insurance (reinsurance) organization in the amount of ten percent or more of the outstanding (minus preferred and repurchased by an insurance (reinsurance) organization) shares of an insurance (reinsurance) organization without obtaining the prior written consent of the authorized body. This requirement does not apply to the State or the national managing holding company, as well as to the cases provided for by the cited Law.

     At the request of paragraph 1 of art. 72-1 of the Law of the Republic of Kazakhstan "On the Securities Market", no person independently or jointly with another (other) person(s) may (may not) directly or indirectly own, use and (or) dispose of ten or more percent of the outstanding (minus preferred and repurchased) shares of the investment portfolio manager, and also have control or the ability to influence decisions made by the investment portfolio manager in the amount of ten percent or more of the outstanding (minus preferred and repurchased) shares of the investment portfolio manager without obtaining the prior written consent of the authorized body.  

     The procedure for granting consent to purchase, directly or indirectly, shares of a financial institution is determined by the National Bank of the Republic of Kazakhstan.

     Violation by obligated persons of the above-mentioned legislative requirements for the acquisition of 10 percent or more of shares of a financial organization or control over them in the specified amount without the written consent of the National Bank of the Republic of Kazakhstan forms the final composition of the offense provided for in the commented article.

     The composition of the offense provided for in the commented article is formal. In order to calculate and impose a fine on an offender under the commented article, it is not necessary to establish the fact and amount of damage caused by the commission of an offense.

     For committing an offense provided for in the commented article, a person is punished with a fine.  

     Depending on the legal status of the offender, the amount of the fine is:  

     - for individuals – 200 MCI,  

     - for legal entities – 1000 MCI.

     The amounts of fines for each of the above categories of subjects of an offense are fixed and are not subject to change by the body imposing them.  

     This penalty is imposed on the offender by the National Bank of the Republic of Kazakhstan or the court, in case the case is considered in court.

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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