Commentary to article 349. Provocation of commercial bribery or a corruption offense of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
Provocation of commercial bribery, that is, an attempt to transfer money, securities, other property or property services to a person performing managerial functions in commercial or other organizations without his consent in order to artificially create evidence of a crime or blackmail. —
is punishable by a fine in the amount of one hundred to three hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of one to three months or by imprisonment for a term of up to five years with or without confiscation of property.
2. Provocation of a corruption crime, that is, the same act committed against a person authorized to perform state functions, or a person equated to it., —
is 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 three to five months with deprivation of the right to hold certain positions or engage in certain activities for up to three years or imprisonment for up to seven years with or without confiscation of property.
The public danger of this crime lies in the fact that as a result of its commission, evidence is artificially created that can serve as a basis for illegally bringing to criminal responsibility and convicting an innocent person, and the reputation of the authorities where the person against whom the provocation of commercial bribery or corruption crimes took place is undermined. This crime can be committed for the purpose of settling personal accounts or compromising an opponent in a political struggle, in a struggle for office.
The victim of this crime may be a person performing managerial functions in commercial or other organizations (when provoking commercial bribery), or a person authorized to perform government functions, as well as a person equated to him (when provoking a corruption crime).
The object of the crime should be considered the interests of justice, and the immediate one should be the procedure for obtaining evidence in the case provided for by the criminal procedure legislation.
Provocation of commercial bribery (Part one of Article 349 of the Criminal Code) objectively expresses itself in an attempt to transfer money, property benefits and advantages to a person performing managerial functions in commercial or other organizations. A prerequisite for criminal liability under the article of the Criminal Code in question is the absence of prior consent from a person performing managerial functions in commercial or other organizations to receive money, property benefits or advantages.
In cases where, as a result of persuasion, consent was obtained to receive the subject of a bribe or commercial bribery, there will be no corpus delicti in the actions of the person who handed it over. If the provocateur did manage to convince the perpetrator to obtain the subject of this crime, then this circumstance indicates that the perpetrator was inclined to commit these crimes and the provocation did not play any role in relation to him. In such cases, in the actions of the provocateur, some scientists correctly see the composition of another crime – incitement to receive a bribe or commercial bribery.
In the event that there is no consent to receive the subject of commercial bribery, the actions of the person provoking commercial bribery coincide with an attempt at commercial bribery. In such cases, in our opinion, there is competition between general and special norms, where the rule on criminal liability for provocation of commercial bribery (Part 1 of Article 349 of the Criminal Code) should be considered as a special norm and it should be applied.
Based on the above, we believe that when the provocation of commercial bribery has succeeded and the perpetrator has received the subject of the crime in question, he is liable for attempted commercial bribery (Parts 3 of Articles 24 and 231 of the Criminal Code), and the provocateur should not be prosecuted either for provocation of commercial bribery or for incitement to commit commercial bribery. This conclusion can be justified by the fact that the actions of the provocateur in such cases play a positive role in the detection, suppression, disclosure and investigation of the crime provided for in Article 231 of the Criminal Code. Their actions formally contain signs of a crime under articles 24 and 231 of the Criminal Code, but do not pose a public danger. On the contrary, they are socially useful, therefore, on the basis of the second part of art.9 of the Criminal Code, the actions of these persons should not be recognized as a crime.
349 of the Criminal Code in its current version provides for liability for provocation of a corruption crime.
The objective side of this crime should be understood as an attempt to transfer money, property benefits and advantages to a person authorized to perform state functions or a person equated to him without his consent in order to artificially create evidence of a crime or blackmail.
Provocation is possible only in relation to one of the corruption crimes – receiving a bribe. In relation to other types of corruption crimes, provocation, as it seems to us, is impossible. For example, it is difficult to imagine what the objective side of the crime in question will look like in relation to bribery, forgery, inaction in the service. In relation to any other corruption offence, provocation of a corruption offence should be interpreted in the same way, as the concept of provocation is formulated in the first part of art. 349 of the Criminal Code as an attempt to transfer money, property benefits and advantages to someone. The provocation of any corruption crime coincides in its content with the provocation of a bribe.
The object of provocation of commercial bribery or a corruption crime may be money, property benefits and advantages. The money as the subject of this crime can be both in the national currency of the Republic of Kazakhstan and in a foreign currency.
Property benefits should be understood, in our opinion, as the provision of property-related services. For example, the provision of paid services for free or for partial payment, the provision of vouchers to places of rest or treatment, payment for travel, communication services, construction, repair work, etc. Actions, services of a non-property nature cannot be the subject of the crime in question. For example, promotion, state awards, promotion, sexual services, etc.
The analyzed article of the Criminal Code contains a formal composition. This means that the crime in question is considered to be over from the moment when an unsuccessful attempt was made to transfer money, securities, other property or property services to a person performing managerial functions in commercial or other organizations, or to a person authorized to perform government functions, equated to him, without his consent. At the same time, it is required that these persons refuse to accept the subject of the crime in question.
One should not consider as an attempt to transfer money or other material assets or provide property-related services just a verbal offer to accept the subject of commercial bribery (addressed to a person performing managerial functions in commercial or other organizations), or to accept the subject of a corruption offense (addressed to a person authorized to perform government functions, or an equivalent person).
The list of persons who perform managerial functions in commercial or other organizations, or persons authorized to perform government functions or equivalent to them, is contained in the notes to articles 228 and 307 of the Criminal Code.
A person in respect of whom a bribe or commercial bribery was provoked, who did not consent to receive the subject of a bribe or commercial bribery and did not receive it in the future, is not subject to criminal liability due to the absence of objective and subjective aspects of the crimes provided for in Articles 231 and 311 of the Criminal Code.
On the subjective side, this crime is committed with direct intent. The perpetrator is aware that the person against whom the provocation of commercial bribery or a corruption offense is being attempted did not give prior consent to receive the subject of the crime in question, but wants to provoke commercial bribery or a corruption offense. The concept of commercial bribery is contained in the disposition of art. 231 of the Criminal Code. An exhaustive list of corruption crimes is contained in the note to Article 41 of the Criminal Code.
An obligatory feature of the composition of this crime is the purpose of artificially creating evidence of a crime or blackmail. Artificial creation of evidence in relation to the article under consideration of the Criminal Code should be understood as the commission of such actions, which are recorded as evidence of a person's accusation of commercial bribery or corruption crimes and can be used to prosecute this person under Parts 3 or 4 of Article 231 of the Criminal Code or under paragraph "d" of part 3 of Article 176, paragraph "a" Part 3 of Article 103, paragraph "a" of Part 3 of Article 209, Article 307, paragraph "a" of part 4 of Article 308, art. Articles 310-315 and 380 of the Criminal Code. Thus, if the perpetrator acts for this purpose, then his ultimate goal is to achieve unjustified criminal prosecution of the victim for commercial bribery or corruption crimes.
Blackmail is the intimidation of a victim by disclosing any information or providing evidence to the relevant authorities of the victim's involvement in the commission of crimes provided for in the above articles of the Criminal Code. If the crime in question is committed for the purpose of blackmail, then the ultimate goal of the perpetrator may be self-interest, removal from office of an inconvenient person, etc.
The motives for this crime can be any (careerism, revenge, misunderstood interests of the service, etc.) and do not affect the decision on liability under Article 349 of the Criminal Code.
The subject of this crime may be a sane person who has reached the age of 16.
This crime differs from giving a bribe or from commercial bribery in that the perpetrator, when handing over the subject of the crime in question the subject of a bribe or commercial bribery, does not expect him to commit any actions in his favor or refrain from committing certain actions. By performing these actions, he pursues the goal of artificially creating evidence that an official has received a bribe or that a person performing managerial functions in commercial or other organizations has committed commercial bribery or blackmailed the victim.
The crime in question differs from the falsification of evidence primarily by the subject of the crime. In case of falsification of evidence, the subject of the crime may be a person participating in a civil case or his representative (Part 1 of Article 348 of the Criminal Code), as well as a person conducting an inquiry, an investigator, a prosecutor, a specialist who participated in the procedural actions, or a defender in a criminal case (part 2 of Article 348 of the Criminal Code). The subject of the crime in question can be any sane person who has reached the age of 16, including an operative of law enforcement agencies, an inquirer, an investigator.
This crime differs from incitement to receive a bribe in that, when inciting, a person incites another person to receive a bribe. When committing this crime, a person is not limited to offering to receive a bribe. It takes real actions to ensure that the victim accepts his offer and receives the subject of a bribe, that is, it tries to transfer the subject of a bribe or commercial bribery. In addition, the composition of the crime provided for in art. 349 of the Criminal Code also covers an attempt to transfer to a person performing managerial functions in commercial or other organizations the subject of commercial bribery and other corruption crimes.
It is necessary to distinguish the crime in question from cases when a person, having informed law enforcement agencies in advance about the upcoming transfer of the subject of commercial bribery or corruption crime, transfers the so-called "marked" money. There will be no corpus delicti in the actions of the person who transfers the subject of the crime in this way, since his actions do not pose a public danger. On the contrary, they are socially useful in accordance with Articles 34-1 of the Criminal Code. Moreover, there will be no corpus delicti in such actions if the subject of commercial bribery or corruption crimes has consented not to receive the subject of the crime and he does not refuse to receive illegal remuneration in the future and has received "marked" money.
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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