Commentary to article 260. Violation by a professional securities market participant of the procedure, conditions and deadlines for registration of securities transactions and (or) the procedure for maintaining a system of registers of securities holders, a system for accounting for nominal holdings and (or) violation of the procedure, conditions and deadlines for confirming securities rights The Code of the Republic of Kazakhstan on Administrative Offences
1. Violation by a professional securities market participant of the procedure, conditions and deadlines for registration of securities transactions and (or) the procedure for maintaining a system of registers of securities holders or a system of accounting for nominal holdings and (or) violation of the procedure, conditions and deadlines for confirming rights under securities, if these actions do not contain signs of a criminal offense, -
They impose a fine on medium-sized businesses in the amount of two hundred, and on large businesses in the amount of three hundred monthly calculation indices.
2. Violation by a professional participant in the securities market of the procedure and conditions established by the legislation of the Republic of Kazakhstan for the transfer of documents and information constituting the nominal holding system to another professional participant in the securities market -
entails a fine on a legal entity in the amount of four hundred monthly calculation indices.
The commented article establishes administrative liability for violation by a professional securities market participant of the procedure, conditions and deadlines for registration of securities transactions and (or) the procedure for maintaining a system of registers of securities holders, a system of accounting for nominal holdings and (or) violation of the procedure, conditions and deadlines for confirming rights in securities.
The generic object of offenses provided for in Article 260 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 administrative offenses provided for in the commented article is the procedure for registering transactions with securities, maintaining a system of registers of securities holders, a system for accounting for nominal holdings, and confirming securities rights.
260 of the Administrative Code, by virtue of the direct indication of this in the dispositions and sanctions of the commented article, are professional participants in the securities market - legal entities, subjects of medium and large businesses.
A professional participant in the securities market is a legal entity operating in the securities market on the basis of a license or in accordance with the legislative acts of the Republic of Kazakhstan.
The subjective side of the acts provided for in Article 260 of the Administrative Code cannot be established due to the fact that the subjects of offenses are only legal entities.
The offences provided for in the commented article are 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 to third parties by committing an offense.
Part 1 of the commented article establishes administrative liability for violation by a professional securities market participant of the procedure, conditions and deadlines for registration of securities transactions and (or) the procedure for maintaining a system of registers of securities holders or a system of accounting for nominal holdings and (or) violation of the procedure, conditions and deadlines for confirming rights to securities, if these actions do not They contain signs of a criminally punishable act.
The offender is brought to administrative responsibility under Part 1 of the commented article only if there are no signs of a criminally punishable act in the offender's actions. Otherwise, the offenders, officials of a legal entity, are subject to criminal liability for violating the rules for conducting securities transactions in accordance with the norms of the Criminal Code. In this regard, initially illegal acts of a person in registering transactions with securities, maintaining a register of securities holders, a nominee holding accounting system and confirming securities rights should be checked by law enforcement agencies for the presence or absence of signs of a criminal offense and grounds for bringing the perpetrator to criminal responsibility.
The criterion for distinguishing a criminal offense from an administrative offense is the infliction of major damage as a result of the offense.
Major damage, in accordance with paragraph 38) of Article 3 of the Criminal Code, is defined as damage caused to a citizen in the amount of two hundred times the monthly calculation index, or damage caused to an organization or state in the amount of two thousand times the monthly calculation index.
Accordingly, an administrative offense is an offense that has not caused major damage.
The objective side of the offense provided for in Part 1 of Article 260 of the Administrative Code is the commission of illegal actions by a professional participant in the securities market, expressed in:
1) violation of the procedure, conditions and terms of registration of securities transactions;
2) violation of the procedure for maintaining the system of registers of securities holders;
3) violation of the procedure for maintaining the nominal holding accounting system;
4) violation of the procedure, conditions and deadlines for the confirmation of securities rights.
As required by clauses 1, 2, 6 of Article 36 of the Law of the Republic of Kazakhstan "On the Securities Market", transactions with equity securities, as well as assignment of rights of claim for issuers' obligations under equity securities, are subject to registration in the central securities depository's accounting system in accordance with the regulatory legal acts of the authorized body and the central securities depository's set of rules. When a transaction is concluded between clients of one nominee holder, transactions and transactions with securities are registered by the nominee holder and reflected in the central securities depository's accounting system. When concluding a transaction between clients of different nominee holders, transactions and transactions with securities are registered on their personal accounts with the central depository, followed by reflection in the nominee holders accounting system.
Registration of transactions with equity securities transferred to nominal holding in the accounting system of the central securities depository is carried out on the basis of relevant orders of depositors or the organizer of trades for registration of transactions with securities or other documents established by the legislation of the Republic of Kazakhstan.
As required by paragraphs 9, 10 of the above-mentioned Law, the central securities depository, the nominee holder, is not entitled to independently make entries on personal accounts (subaccounts) of registered persons in the absence of grounds established by the legislation of the Republic of Kazakhstan. Documents (with the exception of documents identifying the registered person) that are the basis for making entries on personal accounts (subaccounts) are subject to storage for five years.
The procedure, conditions and terms of registration of securities transactions, the procedure for maintaining a system of registers of securities holders and the procedure for maintaining a system of accounting for nominal holdings are established by the authorized body.
As required by clause 1 of Article 38 of the Law of the Republic of Kazakhstan "On the Securities Market", confirmation of rights under equity securities is carried out by providing an extract from the personal account of a registered person in the central securities depository accounting system and (or) the nominal holding accounting system.
A personal account statement is a document, which is not a security, issued by a central depository or a nominee holder and confirming the rights of a registered person under financial instruments at a certain point in time.
The conditions and procedure for providing an extract are established by the specified Law, regulatory legal acts of the authorized body, and a set of rules of the central securities depository.
Violation by obligated persons of the above-mentioned legislative requirements forms the final composition of the offense provided for in Part 1 of the commented article.
For committing an offense provided for in Part 1 of the commented article, a professional participant in the securities market is punished with a fine.
Depending on the legal status of the offender and the business category to which he belongs, the amount of the fine is:
- for medium–sized businesses - 200 MCI,
- for large business entities – 300 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.
Part 2 of the commented article establishes administrative liability for violation by a professional participant in the securities market of the procedure and conditions established by the legislation of the Republic of Kazakhstan for the transfer of documents and information constituting the nominal holding system to another professional participant in the securities market.
The objective side of the offense provided for in Part 2 of the commented article is characterized by the offender committing illegal actions (inaction), expressed in violation of the procedure and conditions established by the legislation of the Republic of Kazakhstan for the transfer of documents and information constituting the nominal holding system to another professional participant in the securities market.
As required by clause 58 of the Rules for Registration of Transactions with Equity Securities, in the event of termination of the agreement, the nominee holder shall, within seven calendar days from the date of termination of the agreement with the client, transfer to the new nominee holder specified in the client's written notification the documents constituting the nominee holding accounting system for this client.
Violation by the obligated person of the specified requirement forms the final composition of the offense provided for in Part 2 of the commented article.
For committing an offense under Part 2 of Article 260 of the Administrative Code, the offender is punished with a fine.
The fine for legal entities for committing an offense under Part 2 of Article 260 of the Administrative Code is 400 MCI.
The amount of the fine is fixed and is not subject to change by the body imposing it.
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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