Commentary to article 233. Obtaining or using a loan or loan in violation of the legislation of the Republic of Kazakhstan The Code of the Republic of Kazakhstan on Administrative Offences
1. Obtaining a loan or preferential credit terms by an individual entrepreneur or an organization by submitting deliberately false information about the economic situation, financial condition or collateral of an individual entrepreneur or organization, or about other circumstances essential for obtaining a loan or preferential credit terms, as well as failure to inform the bank or another information to the lender about the occurrence of circumstances that may lead to the termination of lending, cancellation of benefits or limitation of the size of the allocated loan, if these acts did not cause major damage., -
they entail a fine in the amount of fifty monthly calculation indices.
2. The use of a budget loan is not intended for its intended purpose, unless this act has caused major damage to an individual, organization, or the state., -
entails a fine in the amount of one hundred monthly calculation indices.
3. The use of funds from state-guaranteed loans and loans secured by the state for purposes not provided for by the terms of the loan and not provided for by the guarantee agreement, as well as for lending to government agencies -
entails a fine on the first managers of the relevant legal entity, the borrower of a loan with a state guarantee, their deputies or persons replacing them, who are charged with fulfilling their duties by relevant orders, in the amount of one hundred monthly calculation indices.
The commented article establishes administrative responsibility for obtaining or using a loan in violation of the legislation of the Republic of Kazakhstan.
The generic object of offenses provided for in Article 233 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 established by the legislation of the Republic of Kazakhstan for obtaining and using loans and credits.
The subjects of offenses provided for in Article 233 of the Administrative Code, by virtue of a direct indication of this in the commented article, are individual entrepreneurs, organizations, the first heads of legal entities who are borrowers of a loan with a state guarantee, as well as their deputies or persons replacing them, who are charged with fulfilling their duties by relevant orders.
233 of the Administrative Code, the legislator in the commented article indicates individuals, organizations or the state as a victim of the commission of an offense.
According to Part 1 of Article 745 of the Administrative Code, a victim is a natural or legal person who has suffered physical, property or moral harm by an administrative offense. The case of an administrative offense is considered with the participation of the victim or his representatives. In his absence, the case may be considered only in cases where there is evidence that he was properly notified of the place and time of the case and if he did not file a motion to adjourn the case.
The subjective side of the acts provided for in Article 233 of the Administrative Code, for individuals who committed it, including individual entrepreneurs and officials, is characterized by guilt in the form of intent or negligence. The guilt of an individual is revealed by his mental attitude towards the illegal acts committed by him and their harmful consequences.
Part 1 of the commented article establishes administrative responsibility for the receipt by an individual entrepreneur or an organization of a loan or preferential credit conditions by submitting deliberately false information about the economic situation, financial condition or collateral of an individual entrepreneur or organization or about other circumstances essential for obtaining a loan, preferential conditions to a bank or organization engaged in certain types of banking operations. lending services, as well as failure to inform the bank or other lender about the occurrence of circumstances that could lead to the termination of lending, the cancellation of benefits or the limitation of the size of the allocated loan, if these acts did not cause major damage.
The objective side of the offense provided for in Part 1 of Article 233 of the Administrative Code is that the offender commits illegal (and for individual entrepreneurs, also guilty) actions (inaction) in the form of obtaining a loan or preferential credit conditions by:
1) providing a bank or an organization engaged in certain types of banking operations with deliberately false information about its economic situation, financial condition or collateral;
2) submitting deliberately false information to a bank or an organization engaged in certain types of banking operations about other circumstances that are essential for obtaining a loan or preferential terms of their lending,
3) failure to inform the bank or other lender about the occurrence of circumstances that may lead to the termination of lending, cancellation of benefits or limitation of the size of the allocated loan.
By committing any of the above-mentioned acts, the offender pursues the goal of obtaining a loan and (or) using preferential credit conditions without sufficient grounds. The commission of the offense is based on a selfish motive for unjustifiably obtaining money in the form of a loan and reducing the associated costs by unreasonably obtaining and using benefits.
The composition of the offense provided for in Part 1 of the commented article is material. In order to calculate and impose a fine on the offender under Part 1 of the commented article, it is necessary to establish the fact and amount of damage caused to the victim from obtaining a loan or preferential credit conditions. The amount of such damage in order to bring the offender to administrative responsibility under Part 1 of the commented article should not exceed a large amount.
The large amount of damage caused for the purposes of applying the commented norm is understood to mean damage caused to a citizen in an amount two hundred times higher than the monthly calculation index, or damage caused to an organization or state in an amount two thousand times higher than the monthly calculation index.
The offender is brought to administrative responsibility under Part 1 of the commented article only if the acts provided for in part 1 of the commented article have not caused major damage to a citizen, state or organization. Otherwise, offenders who are individual entrepreneurs or officials of a legal entity are subject to criminal liability for illegally obtaining a loan or preferential credit conditions in accordance with the norms of the Criminal Code. In this regard, an unlawful act of a person in the form of illegally obtaining a loan or preferential credit conditions based on the amount of damage caused by its commission 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 offense provided for in Part 1 of the commented article is considered to have been committed at the moment when the offender, as a result of committing an unlawful act (inaction) without sufficient factual grounds, received a loan or preferential credit conditions or retained them in case of loss of grounds for their preservation.
For the commission of an offense provided for in Part 1 of the commented article, the perpetrators are subject to punishment in the form of a fine.
The amount of the fine for committing an offense under Part 1 of Article 233 of the Administrative Code is 50 MCI, is fixed and is not subject to change by the body imposing it.
This penalty is imposed on the offender by the state revenue authorities or the court, if the case is considered in court.
Part 2 of the commented article establishes administrative liability for using a budget loan for other than its intended purpose, unless this act has caused major damage to an individual, organization, or the State.
The objective side of the offense provided for in Part 2 of Article 233 of the Administrative Code is that the offender commits illegal (and for individual entrepreneurs, also guilty) actions in the form of using a budget loan for other than its intended purpose.
According to paragraphs 1 and 2 of Article 171 of the Budget Code of the Republic of Kazakhstan, budget lending is a process that includes procedures for making decisions on the provision, use, maintenance and repayment of a budget loan. A loan agreement is an agreement between the lender, the administrator of the budget program and the borrower, which establishes the legal relations of the parties in the provision, use, maintenance and repayment of a budget loan.
As required by paragraph 3 of Article 171 of the Budget Code of the Republic of Kazakhstan, budget loans are not provided for the purpose of participation in the authorized capitals of legal entities, covering losses of borrowers' economic activities, and paying for services to attorneys (agents).
190 of the Budget Code of the Republic of Kazakhstan, the borrower uses the budget loan funds only for the purposes stipulated by the budget program and the loan agreement. The final borrower uses the budget loan funds exclusively for the purposes stipulated in the loan agreement, in accordance with the budget program and budget legislation of the Republic of Kazakhstan.
Misuse of a budget loan is understood as the use by a borrower in full or in part of the funds of a budget loan received for purposes other than the purposes of its use, which were originally determined by the loan agreement, lending rules and (or) the legislation of the Republic of Kazakhstan for this type of budget loan.
Violation by borrowers of the above-mentioned legislative requirements for the targeted use of budget loans and legally established prohibitions on their misuse forms the final composition of the offense provided for in Part 2 of the commented article.
The composition of the offense provided for in Part 2 of the commented article is material. In order to calculate and impose a fine on the offender under Part 2 of the commented article, it is necessary to establish the fact and amount of damage caused to the consumer by using a budget loan for other than its intended purpose. In order to attract an offender under Part 2 of the commented article, the amount of damage caused by the commission of an offense should not exceed a large amount.
The large amount of damage caused for the purposes of applying the commented norm is understood to mean damage caused to a citizen in an amount two hundred times higher than the monthly calculation index, or damage caused to an organization or state in an amount two thousand times higher than the monthly calculation index.
The offender is brought to administrative responsibility under part 2 of the commented article only if the acts provided for in part 2 of the commented article have not caused major damage to a citizen, state or organization. Otherwise, offenders – individuals or officials - are subject to criminal liability for misuse of a budget loan in accordance with the norms of the Criminal Code. In this regard, an unlawful act of a person in the form of misuse of a budget loan based on the amount of damage caused by its commission 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 offense provided for in Part 2 of the commented article is considered to have been committed at the moment when the offender started using the budget loan for other purposes.
For the commission of an offense provided for in Part 2 of the commented article, the perpetrators are subject to punishment in the form of a fine.
The fine for committing an offense under Part 2 of Article 233 of the Administrative Code is 100 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 authorities of the Ministry of Finance of the Republic of Kazakhstan or by the court, if the case is considered in court.
Part 3 of the commented article establishes administrative responsibility for the use of funds from state-guaranteed loans and loans secured by the state for purposes not provided for by the terms of the loan and not provided for by the guarantee agreement, as well as for lending to government agencies.
The objective side of the offense provided for in Part 3 of Article 233 of the Administrative Code is that the offender commits illegal (and for individual entrepreneurs, also guilty) actions in the form of using state-guaranteed loans and loans secured by the state for purposes not provided for by the terms of the loan and (or) the guarantee agreement, as well as for lending to state-owned enterprises. organs.
As required by articles 224 and 235 of the Budget Code of the Republic of Kazakhstan, it is prohibited to use state-guaranteed loans and loans secured by the state for purposes not provided for by the terms of the loan, as well as for lending to government agencies.
Violation by borrowers of the above-mentioned legislative prohibitions on the use of funds from a government-guaranteed loan or a loan secured by the state for purposes not provided for by the terms of the loan, as well as for lending to government agencies, constitutes a complete offense provided for in Part 3 of the commented article.
The composition of the offense provided for in Part 3 of the commented article is formal. In order to calculate and impose a fine on an offender in accordance with Part 3 of the commented article, it is not necessary to establish the fact and amount of damage caused by the commission of an offense.
The offense provided for in Part 3 of the commented article is considered to have been committed at the moment when the offender began using the funds of state-guaranteed loans and loans secured by the state for purposes not provided for by the terms of the loan and (or) the guarantee agreement, as well as for lending to government agencies.
For the commission of an offense provided for in Part 3 of the commented article, the perpetrators are subject to punishment in the form of a fine.
The amount of the fine for committing an offense provided for in Part 3 of Article 233 of the Administrative Code is 100 MCI for the first managers of the relevant legal entity, the borrower of a loan with a state guarantee, their deputies or persons replacing them, who are charged with fulfilling their duties by relevant orders.
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 court by virtue of a direct indication of this in the relevant norm of the Administrative Code.
Officials of the bodies of the Ministry of Finance of the Republic of Kazakhstan, the Accounting Committee for Control over the Execution of the Republican Budget and the audit commissions of regions, cities of republican significance, and the capital have the right to draw up protocols on administrative offenses provided for in Part 1 of the commented article.
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.);
Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);
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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