On judicial practice in cases of fraud

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 29, 2017 No. 6.

     In connection with issues that have arisen in judicial practice, changes in legislation and for the purpose of uniform application of the law, the plenary session of the Supreme Court of the Republic of Kazakhstan

      Decides:

To draw the attention of the courts to the fact that an obligatory sign of fraud is the presence of a selfish purpose in the guilty person, that is, the desire to unlawfully and gratuitously turn someone else's property into their own property, or the right to it in their favor, or in favor of others. Fraud is committed through deception or abuse of trust, under the influence of which the owner or other owner of property voluntarily transfers property or the right to it to other persons.

     When describing the event of a criminal offense in the indictment and in the court verdict, taking into account the objective and subjective sides of the committed act, the method by which fraud was committed must be specified.

     The footnote. Paragraph 1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).

Deception is a method of committing fraud for the purpose of stealing someone else's property or acquiring the right to someone else's property. Deception may consist in intentionally misleading the owner or other owner of the property by communicating deliberately false information that does not correspond to reality, or concealing the true facts that should have been reported to the owner or owner of the property, creating an erroneous impression among the owner of the property or another person about the legality of the transfer of property into the possession of the guilty person and (or) other persons.

      As a result of deception, the owner or other owner of the property, being misled, voluntarily transfers the property to the guilty person, believing that there are grounds for this, and he acts in his own interests.

Abuse of trust as a method of fraud consists in the fact that the perpetrator uses the trust that has arisen between him and the owner or another person in charge of the property in order to illegally obtain someone else's property or the right to it for selfish reasons.

      The trust of the owner of the property or another person in the fraudster can be caused by various circumstances: personal acquaintance, recommendations from relatives and other persons, official position of the perpetrator, etc.

In case of fraud, deception can be expressed both verbally and in writing.

      The use of forged documents in the theft is a form of deception. Fraud committed using a forged official document produced by another person is fully covered by fraud and does not require additional qualification under article 385 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code).

If a person has committed fraud by forging an official document granting rights or relieving of duties, the act should be classified according to the totality of criminal offenses provided for in part one of Article 385 of the Criminal Code and the corresponding part of Article 190 of the Criminal Code.

It is necessary to distinguish theft committed by fraud from theft committed in other forms, but having a method of deception that does not condition the voluntary transfer of property by the owner of the property or another person, but facilitates the commission of another crime (deception to break into a house, vault, etc.).

In cases where deception is used by a person to facilitate the commission of another crime related to the theft of someone else's property, during which his actions are discovered by the owner or other owner of this property, but he continues to unlawfully hold someone else's property against the owner's will, then the deed should be qualified as robbery (the person asks the owner of the mobile phone to make a call, and then he immediately hides with him in front of the owner).

Fraud is considered completed from the moment when the stolen property is seized and transferred into the illegal possession of the perpetrator or other persons, and they have a real opportunity to own, use or dispose of it at their discretion as their own.

      If fraud is committed in the form of acquiring the right to someone else's property, the crime is considered completed from the moment the perpetrator has a legally established opportunity to own, use and dispose of someone else's property as his own, after appropriate registration, certification or registration of this right.

      Fraud committed against users of information systems is considered completed from the moment the victim transfers funds and (or) personal data to the perpetrator or at his direction to other persons.

     The location of the victim who transfers funds should be considered as the place of fraud using information systems.

     The footnote. Paragraph 8 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).

Fraud committed by deceiving or abusing the trust of the user of the information system should be recognized as the actions of the perpetrator aimed at seizing the property or the right to the property of the user of the information system, committed through information technology (computer, computer programs, Internet, cell phone, etc.), by placing in the information system deliberately false information or programs, with the purpose of implementing his criminal intent to deceive the user through a Qiwi wallet, online banking, etc.

      In cases where these acts involve unlawful access to an information system or telecommunications network, the act is subject to qualification for a set of criminal offenses under Articles 190 and 205 of the Criminal Code, or 190 and 206 of the Criminal Code if, as a result of unlawful access to computer information, computers, computer systems or their networks have been destroyed and modified.

To distinguish fraud from civil law relations, it should be borne in mind that in fraud, intent aimed at stealing someone else's property or acquiring the right to someone else's property by deception or abuse of trust arises from the guilty person before and (or) at the time of conclusion of the contract providing for the receipt of someone else's property or the right to it.

      In such cases, the deceptive actions of the perpetrator must be causally related to the fact that the perpetrator received property or acquired the right to property, i.e. deceptive actions must precede the transfer of this property or the acquisition of the right to it.

Courts should take into account that the existence of intent aimed at embezzlement by fraud in contractual obligations may be evidenced by a combination of circumstances such as the person's deliberate lack of real financial and other material capabilities (logistical equipment, labor collective, etc. d.) to fulfill the assumed obligation, or the necessary license, permission to carry out activities aimed at fulfilling obligations under the contract, the use of forged constituent documents or letters of guarantee by a person, concealment of information about the existence of debts or collateral for property, the conclusion of knowingly unenforceable contracts, and others.

      In cases where an agreement between the parties is concluded with the mutual intentions of the parties to fulfill the relevant obligations, but after its conclusion and receipt of material benefits, objective circumstances arise for one of the parties that prevent the fulfillment of the obligations assumed, the deed cannot be qualified as fraud.

Illegal receipt of social benefits, money transfers, bank deposits or other property for selfish reasons on the basis of other people's personal or other documents (for example, a pension certificate, a child's birth certificate, a bank savings book with the name of its owner, or other registered securities, etc.), constitutes fraud.

      If the said documents were previously stolen by the perpetrator, then his actions must be additionally qualified under the third part of Article 384 of the Criminal Code.

      Theft of other people's property by deception should be qualified as actions consisting in receiving social benefits and allowances, other monetary payments or other property by submitting deliberately false information to the authorized decision-making body about the existence of circumstances, the occurrence of which, according to the law, by-law and (or) contract is a condition for receiving appropriate payments or other property, as well as by omission of the termination of the grounds for receiving these payments.

Fraud is defined as the gratuitous circulation by a person in his own favor or in favor of other persons of funds held in bank accounts, committed for a selfish purpose by deceiving or abusing the trust of a bank employee by submitting forged payment orders or other people's personal and other documents to the bank.

      Obtaining a grant or loan by a person without the intention of paying it back in order to take ownership by deception with the provision of knowingly false information about the financial situation or collateral, or about other circumstances essential to obtaining a loan or subsidy, constitutes fraud.

From the moment money is credited to a bank account as a result of fraud, a person acquires the ability to dispose of them, and the crime should be considered over from the moment these funds are credited to his account.

From the moment money is credited to a bank account as a result of fraud, a person acquires the ability to dispose of them, and the crime should be considered over from the moment these funds are credited to his account.

Theft of other people's funds through an ATM by using a previously stolen or forged credit (settlement) card, bearer securities (bonds, promissory notes, shares, etc.) does not constitute fraud. In this case, the crime should be classified as theft of someone else's property.

     Actions related to the theft of other people's funds held in a bank account through the use of a stolen or forged credit or debit card should be qualified as fraud only in cases where a person has deceived or misused an authorized employee of the bank.

Fraud in the field of public procurement is understood as the actions of the perpetrator (supplier), including the presentation of deliberately false information (about the financial or economic situation, availability of employees, technical means, etc.), for the purpose of deception, which intentionally mislead the customer or the organizer of public procurement in order to turn to their advantage or budgetary funds are used for the benefit of third parties, as a result of which the supplier appropriates the allocated funds without delivering the goods or completing the work or providing the service.

      In cases where an authorized person of the customer knowingly draws up a fictitious act of acceptance and transfer of goods or work performed, or services rendered, after which funds are credited to the supplier's account, which the supplier turns into his own property and disposes of them at his discretion, such actions of the supplier do not constitute fraud. Depending on the circumstances, these actions (by authorized persons of the customer or supplier) may be qualified as abuse of official position or theft of someone else's entrusted property through embezzlement or embezzlement.

When distinguishing fraud from causing property damage by deception or abuse of trust in the absence of signs of theft, courts should take into account that when committing deception or abuse of trust without signs of theft, the guilty person does not seize property from the lawful possession of the owner of the property or another person, or does not acquire the right to it. In this case, the guilty person, by gratuitously using the property or the right to it or services provided by the owner of the property or another person for payment, obtains illegal benefits by deception or abuse of trust and causes real material damage to the victim or other owner of the property.

      Such actions may be expressed in the use of property of a government agency or enterprise, a private or legal entity, or paid services provided by them without payment (by providing forged documents exempting payments established by law or from payments for utilities, rental housing, equipment, unauthorized connection to power grids, water and gas pipelines, creating the opportunity unaccounted-for electricity and water consumption, gas or the use of vehicles entrusted to this person for personal purposes (stowaway transportation of passengers by conductors and conductors, etc.).

When qualifying the actions of the guilty person under paragraph 1 of part four of Article 190 of the Criminal Code as fraud committed by a criminal group, one should be guided by the explanations specified in paragraphs 23, 24, 25, 33, 34, 35 and 36 articles 3 of the Criminal Code.

Persons using their official position when committing fraud provided for in paragraph 3 of the second part of Article 190 of the Criminal Code should be understood as employees or officials who are not subject to the provisions of the Law of the Republic of Kazakhstan dated November 23, 2015 No. 416-V "On Civil Service".

The actions of the guilty person should be qualified under paragraph 2 of the third part of Article 190 of the Criminal Code if, being a person authorized to perform state functions, or a person equivalent to him, or an official, or a person holding a responsible public position, committed intentional acts with the aim of stealing property or acquiring the right to it through deception or abuse. the trust of the owner of the property using his official position.

When receiving funds or other valuables by a person authorized to perform government functions, or a person equated to him, or an official, or a person holding a responsible public position for committing an action (inaction) that he actually cannot carry out due to lack of official authority or inability to use his official position, it is necessary to qualify if there is an intent to seize the specified values as fraud.

      If this person is detained at the scene of a crime while receiving money, securities and other material assets, the act should be qualified as an attempted fraud.

      When qualifying the actions of a guilty person under paragraph 2 of the third part of Article 190 of the Criminal Code, courts should be guided by paragraphs 16, 26, 27 and 28 of Article 3 of the Criminal Code.

There is no official fraud in the case of embezzlement or embezzlement by a person of property that was entrusted to him on the basis of a civil contract (lease, contract, commission, transportation, storage, etc., or an employment contract), these actions are covered by Article 189 of the Criminal Code.

The actions of organizers, instigators and accomplices of fraud knowingly committed by a person using his official position, or by a person authorized to perform public functions or a person equivalent to him, or by an official or a person holding a responsible public position, if it involves the use of official position, are qualified under the relevant part of Article 28 of the Criminal Code and according to the second or third parts of Article 190 of the Criminal Code. Paragraph 20 was amended in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/11.  No. 1 (see old ed.)

The question of whether there is a qualifying sign of fraud on a large or especially large scale in the actions of the perpetrators should be resolved in accordance with paragraphs 3 or 38 of Article 3 of the Criminal Code.

      When deciding on the qualification of the actions of persons who committed fraud in a group of persons by prior agreement or as part of a criminal group on the basis of "on a large scale" or "on an especially large scale", one should proceed from the total value of the property stolen by all participants in the crime.

Courts should distinguish ongoing fraud from repeated fraud by the fact that with continued fraud, the perpetrator, by repeatedly seizing other people's property from one source, implements a single intent aimed at seizing property, achieving a pre-determined goal.

To distinguish the qualifying feature of repeated fraud from the commission of fraud against two or more persons, it should be borne in mind that the latter is committed at the same time by the same criminal act (deception against participants in shared-equity construction, users of the information system, etc.). If there is a sign of repeated fraud, the specified act is committed at different times, and the property stolen from various sources.

To invalidate paragraphs 19 and 20 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 8 "On judicial practice in cases of embezzlement".

According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, is generally binding and enters into force from the date of the first official publication.

     Chairman

     The Supreme Court of the Republic of Kazakhstan

K. MAMIE

     Judge of the Supreme Court of the Republic of Kazakhstan,

     Secretary of the plenary session

K. SHAUKHAROV

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