Commentary to article 231. Commercial bribery of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Illegal transfer of money, securities or other property to a person performing managerial functions in a commercial or other organization, as well as illegal provision of property-related services to him for using his official position in the interests of a person engaged in bribery, —      

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 restriction of liberty for a term of up to two years, or by imprisonment for the same term.      

2. The same acts committed repeatedly either by a group of persons by prior agreement or by an organized group,

— are 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 three years, or by arrest for a term of three to six months, or by imprisonment for a term of up to four years.      

3. Illegal receipt by a person performing managerial functions in a commercial or other organization of money, securities, or other property, as well as the use of property-related services for using his official position in the interests of a person engaged in bribery, —      

are 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 deprivation of the right to hold certain positions or engage in certain activities for a term of up to two years, or by restriction of liberty for a term of up to three years, or by arrest for a term of four to six months, or imprisonment for up to three years.    

4. The acts provided for in the third part of this Article, if they:      

a) committed by a group of persons by prior agreement or by an organized group;      

b) committed repeatedly;      

c) involve extortion, —      

are punishable by a fine in the amount of seven hundred to one thousand monthly calculation indices or in the amount of the convicted person's salary or other income for a period of seven months to one year, or by deprivation of the right to hold certain positions or engage in certain activities for up to five years, or by imprisonment for up to five years with deprivation of the right to hold certain positions or engage in certain activities for up to three years.      

Note. 1. A person who has committed the acts provided for in the first or second parts of this article shall be released from criminal liability if extortion has taken place against him or if he voluntarily reported the bribery to the body authorized to initiate criminal proceedings.    

2. The transfer or receipt of property, the provision of property-related services, or the use of such services as a gift or reward in the absence of a prior agreement for previously committed legitimate actions is not a crime and is prosecuted in a disciplinary or administrative manner, if the value of the property or services does not exceed two monthly calculation indices.

     The public danger of illegal transfer and receipt of remuneration by a person performing managerial functions in commercial and other organizations consists in undermining confidence in these persons, violating the order of economic activity, and obtaining illegal advantages by the giver and illicit enrichment by the recipient.      

The legal basis for the protection of fair competition is the Law of the Republic of Kazakhstan "On Unfair Competition" dated June 9, 1998 (as amended and supplemented). The conditions of normal commercial relations are violated in favor of persons who receive or transfer bribes.      

Article 231 of the Criminal Code provides for two separate offences as types of commercial bribery:       — illegal transfer of remuneration – the main and qualified staff (parts 1 and 2);      

— illegal receipt of remuneration – the main and qualified staff (parts 3 and 4).       These two similar crimes are covered by the general term "commercial bribery".      

The direct object of commercial bribery is the normal activities of commercial and other organizations that are not a government agency or a local government body.      

The concept of commercial and other organizations is given when considering the crime provided for in Article 228 of the Criminal Code "Abuse of authority".      

The subject of a crime may be money, securities, other property, as well as property-related services.      

Money is not only domestic, but also foreign currency, as well as payment documents in foreign currency.      

Securities include any documents certifying, in accordance with the prescribed form and mandatory requisites, property rights, the exercise or transfer of which is possible only upon presentation (bonds, cheques, promissory notes, shares, etc.).      

Property includes items of material value. This includes both movable and immovable property.      Property–related services are services that, under certain circumstances, are payable, but in this case are provided free of charge by a person performing managerial functions in commercial and other organizations: repair of apartments, houses, cars, construction of dachas, cottages, rental of premises, opening accounts in Kazakhstani and foreign banks; "cashing out" of funds and other actions that generate property rights or create material benefits.      On the objective side, commercial bribery in the form of illegal transfer of remuneration (Part 1 of Article 231 of the Criminal Code) consists either in the illegal transfer of money, securities, or other property to a person performing managerial functions in a commercial or other organization, or in the illegal provision of property-related services to this person for performing actions in the interests of the giver.      

The interests for which bribery is committed and the methods of transferring illegal remuneration are basically similar to the corresponding concepts of bribery (art.312 of the Criminal Code).      

Commercial bribery will be evident when:      

a) the subject is tangible assets (money, securities, other property) or property-related services;      

b) values and services are transferred to persons performing managerial functions in commercial or other organizations;      

c) they are transferred for a certain action (inaction) in favor of the giver, which can be committed only in connection with the official position of the taker.;      

d) the actions of the person giving and the person accepting illegal remuneration are mutually conditioned and interrelated.      

Transfer refers to the handing over of money, securities or other property to a person performing managerial functions.      

The provision of property-related services should be understood as actions to provide property benefits free of charge (car repairs, provision of construction materials, debt payment, etc.).      

The illegality of the transfer or receipt of property means that these actions are either prohibited by law or the founding documents of the organization, or if not prohibited, they are capable of harming the interests of the organization, or clearly do not correspond to the nature of the management body's activities, or are directed against the legitimate interests of a commercial or other organization.      The use of official position is understood as the exercise or excess of one's powers contrary to the interests of the service and to please the person who is engaged in bribery.      

The crime is considered completed from the moment the person transfers at least part of the remuneration or part of the property services, therefore, the onset of socially dangerous consequences is not required.      

The subject of a crime under Parts 1-2 of Article 231 of the Criminal Code of the Russian Federation is any sane person who has reached the age of 16 at the time of the commission of the crime.      

On the subjective side, the crime in question is committed only with direct intent and a special purpose. A person is aware that he is illegally transferring material assets or providing property services to a person performing managerial functions in these bodies, and aims to encourage this person to commit any actions (omissions) in connection with his official position in his interests.      

Part 2 of Article 231 of the Criminal Code includes the following qualifying features:      

a) repeatedly (Article 11 of the Criminal Code);    

b) a group of persons by prior agreement (Part 2 of Article 31 of the Criminal Code);      

c) an organized group (Part 3 of Article 31 of the Criminal Code).      

When applying the qualifying sign of "repetition", it is necessary to be guided by part 1 of art.11 of the Criminal Code. Repetition will occur when: simultaneous transfer of illegal remuneration to several persons for performing the same action (inaction) in the interests of the giver; simultaneous transfer to the same person for performing independent actions (inaction) in the interests of the giver; transfer of illegal remuneration to several persons simultaneously, but for performing different actions (inaction).      

When qualifying the actions of the perpetrators based on the commission of commercial bribery by a "group of persons by prior agreement", Part 2 of Article 31 of the Criminal Code should be guided. When qualifying the actions of the perpetrators based on the commission of commercial bribery by an "organized group", Part 3 of Article 31 of the Criminal Code should be guided. Thus, the signs of a preliminary conspiracy by a group of persons and an organized group do not represent any special specifics for the present crime.      

Part 3 of Article 231 of the Criminal Code provides for liability for illegally receiving remuneration by a person performing managerial functions in a commercial or other organization.      

On the objective side, this type of commercial bribery also consists of a number of alternative actions: illegal receipt of money, securities, and other property; illegal use of property-related services for committing an act (inaction) in the interests of the giver, in connection with the official position held by the perpetrator.      

Receiving money, securities, and other property is understood as accepting them by the perpetrator, regardless of the time of receipt or method (directly, through third parties, by mail, etc.).      

The use of property-related services means that the perpetrator uses the property benefits or advantages provided to him, regardless of whether he used them in whole or in part.      

The use of official position can be expressed in two ways: either by committing an action (inaction), or by refraining from committing an action (inaction), which should be part of the management functions of the perpetrator, be within the scope of the powers granted to him.      

In paragraph 20 of the Normative Resolution "On Judicial practice in cases of embezzlement" dated July 11, 2003 (as amended The Supreme Court of the Republic of Kazakhstan clarifies that an official or a person performing managerial functions in a commercial or other organization receives money, securities and other material assets for committing an act (inaction) that he cannot actually carry out due to lack of official authority or inability to use his official position., should be qualified as fraud under Article 177 of the Criminal Code if there is intent to seize these valuables. In such cases, the owner of the valuables is criminally liable for attempted commercial bribery if the transfer of the valuables was intended to commit the desired action (inaction) by the specified persons.      

If a person receives money or other valuables for transfer to an official or a person performing managerial functions as a bribe or an object of commercial bribery and, without intending to do so, appropriates them, the deed should be qualified as fraud. The actions of the owner of the valuables in such cases are subject to qualification as an attempt to commit commercial bribery. At the same time, it does not matter whether a specific person performing managerial functions in a commercial or other organization was named to whom the illegal remuneration was supposed to be transferred.       The crime is considered completed from the moment the person performing managerial functions accepts at least part of the money, securities, or other property, or at least partially accepts property-related services. The law does not link the occurrence of criminal liability for this crime with the fact of retaliatory actions of the person who received the reward. Thus, the commission of an action (inaction) in the interests of the giver does not affect the moment of the end of the crime.      The subject of a crime under Parts 3 to 4 of Article 231 of the Criminal Code is a person performing managerial functions in a commercial or other organization (note to Article 228 of the Criminal Code).      

The subjective side of the crime is characterized by direct intent. The motive of the person accepting the property is always selfish; the goal is to obtain illegal material benefits.    

The qualifying criteria provided for in Part 4 of Article 231 of the Criminal Code include:      

a) a group of persons by prior agreement or an organized group;      

b) repeatedly;      

c) involve extortion.      

The first two signs are highlighted when considering the signs provided for in Part 2 of Article 231 of the Criminal Code.      

Extortion, as a way of obtaining value or services, means either directly demanding illegal remuneration on pain of harming the rights and legitimate interests of the person to whom the claim is addressed, or intentionally putting the person in a position in which he is forced to pay illegal remuneration in order to avoid harming his rights and legitimate interests.      

According to paragraph 1 of the note to Article 231 of the Criminal Code, a person who has committed the acts provided for in parts 1 and 2 of this article is exempt from criminal liability if extortion has taken place against him or if he voluntarily reported the bribery to the body authorized to initiate criminal proceedings. Therefore, reporting to other officials, for example, to one's immediate superior or colleagues, is not a circumstance that certainly exempts from criminal liability. The court may recognize this as a mitigating circumstance.      

Paragraph 2 of the note to Article 231 of the Criminal Code stipulates by law that it is not a crime due to insignificance and is prosecuted in a disciplinary or administrative manner for the transfer or receipt of property, the provision of property-related services or the use of such services as a gift or reward in the absence of prior agreement for previously committed legitimate actions, if the value of the property or services does not exceed two monthly calculation indices.      At the same time, a necessary condition for exemption from criminal liability is:      

1 – lack of prior agreement for previously committed lawful actions;      

2 – the value of property or property-related services should not exceed 2 monthly calculation indices established by the legislation of the Republic of Kazakhstan at the time of the commission of the crime.

     Article 232. Unfair attitude to duties

     Failure to perform or improper performance by a person performing managerial functions in a commercial or other organization of their duties due to unfair or negligent attitude to the service, if this resulted in the death of a person or other grave consequences.,—      

are punishable by restriction of liberty for a term of up to five years or by imprisonment for the same term with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

     The public danger of a crime is expressed in the failure of a person performing managerial functions in a commercial or other organization to fulfill his duties, if there is an obligation to perform these functions, as a result of which the authority of this organization is undermined, resulting in human sacrifice or property damage.      

The immediate object of the crime under consideration is public relations that ensure the normal operation of commercial and other organizations. An additional object is the identity of the victim.      

The objective side of this crime is the failure or improper performance by a person performing managerial functions in a commercial or other organization of their duties due to unfair or negligent attitude to the service, if this resulted in the death of a person or other grave consequences.      

The duties of a person performing managerial functions in a commercial or other organization are determined by law, relevant subordinate regulations (instructions, regulations, an employment agreement, or an order from a higher authority). Thus, the disposition of this norm is a blank one.      

Failure to perform these duties will occur when this person had a real opportunity to perform them, but showed complete inaction. The failure of the guilty person to fulfill his duties may be complete or partial and is expressed in his inaction if there are duties and a real opportunity to perform certain functions arising from his official position. A person performing managerial functions cannot be blamed for not committing actions that were not part of his duties. Therefore, in each specific case of unfair treatment of duties, it is necessary to find out precisely and in detail which of the duties assigned to such a person have not been fulfilled or have been performed improperly.      

Improper performance of duties consists in negligent, unfair (negligent) attitude towards them (for example, in commercial or other organizations – non-compliance by persons performing managerial functions with assigned duties). Improper performance by the guilty person of his duties is incomplete, or not timely, or not accurate in their execution.      

For example, the vice-president of Simona LLP, A., wishing to get the maximum benefit from the sale of goods, did not order a technical inspection of a Kamaz vehicle. As a result of overloading during the transportation of products, Kamaz's brakes failed, and a major accident occurred with an oncoming passenger car, the driver of which died without regaining consciousness.      

A crime is considered completed if these acts negligently caused the death of a person or other grave consequences (signs related to grave consequences are described in the description of part 2 of art.230 of the Criminal Code). Moreover, a causal relationship must be established between a socially dangerous act and the consequences that have occurred.      

The subject of the crime is a special one, i.e. a person performing managerial functions in a commercial or other organization (note to art.228 of the Criminal Code). The concept of the subject of a crime, in relation to all the elements provided for in Chapter 8 of the Special Part of the Criminal Code, is considered in the analysis of the crime provided for in Article 228 of the Criminal Code "Abuse of authority".      

On the subjective side, the crime being analyzed can only be committed through negligence (criminal negligence or criminal arrogance).

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 adoption: NO Body that adopted the act: 180000000000 Region of operation: 100000000000 Registration number of the NPA assigned by the normative body: 167 Status of the act: new Scope of legal relations: 028000000000 Form of the act: COMM Legal force: 1900 Language of the act: rus

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