Comment to article 186. Violation of the obligation to preserve the secrecy of insurance or pension savings or the secrecy of providing a microcredit The Code of the Republic of Kazakhstan on Administrative Offences
Violation of the obligation to preserve information containing the secrecy of insurance or pension savings, or the secrecy of providing a micro-loan, without the consent of their owner by a person to whom they became known in connection with professional or official activities, -
entails a fine in the amount of fifty monthly calculation indices.
The commented article establishes administrative liability for violating the obligation to preserve the secrecy of insurance or pension savings, or the secrecy of providing a micro-loan.
The generic object of the offense provided for in Article 186 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 Republic of Kazakhstan.
The direct object of the offense provided for in Article 186 of the Administrative Code is the procedure established by the legislation of the Republic of Kazakhstan and protected by the state for the use and legal regime for the protection of information containing the secrecy of insurance or pension savings or the secrecy of the provision of microcredit.
The subjects of the offense provided for in the commented article are persons who, in connection with their professional or official activities, have become aware of information containing the secrecy of insurance or pension savings or the secrecy of providing a micro-loan.
The subjective side of an administrative offense under Article 186 of the Administrative Code is characterized by the guilt of individuals 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.
The subjective side of offenses, the subjects of which are legal entities, is not subject to determination due to the existence of a legal requirement to establish guilt as a condition for bringing to administrative responsibility, only in relation to individuals. According to the legislation of the Republic of Kazakhstan on administrative responsibility, legal entities are administratively liable for the mere fact that they have committed an illegal act or omission, for which administrative liability is provided for in the Administrative Code, without taking into account the guilt of the officials of the legal entity who committed this act.
The objective side of the offense provided for in the commented article is characterized by the commission of illegal actions (inaction) in the form of a violation of the obligation to preserve information containing the secrecy of insurance or pension savings or the secrecy of the provision of microcredit, and a ban on their disclosure without the consent of their owner.
According to paragraph 1 of Article 57 of the Law of the Republic of Kazakhstan "On Pension Provision", the secrecy of pension savings includes information about the balances and the movement of money in individual pension accounts of depositors (recipients). The Unified Accumulative Pension Fund, voluntary accumulative pension funds and the State Corporation guarantee the secrecy of pension savings.
At the request of paragraph 2 of Article 57 of the said Law, officials, employees of the unified accumulative pension fund, voluntary accumulative pension funds, State Corporations and other persons who, by virtue of exercising their official and functional duties, have gained access to information constituting the secret of pension savings, are not entitled to disclose information constituting the secret of pension savings, and are responsible for their disclosure is responsible in accordance with the laws of the Republic of Kazakhstan, except for the cases provided for in paragraphs 3 to 5 of the cited article.
In accordance with paragraph 1 of Article 21 of the Law of the Republic of Kazakhstan "On Microfinance Organizations", the secrecy of providing a micro-loan includes information about borrowers, the amount of micro-loans, other terms of the micro-loan agreement related to the borrower, and about the operations of a microfinance organization (with the exception of the rules for providing micro-loans). Information about the concluded agreements on the provision of microcredit by a microfinance organization in the process of liquidation does not belong to the secrecy of the provision of microcredit.
At the request of paragraph 2 of Article 21 of the said Law, microfinance organizations guarantee the secrecy of the provision of microcredit.
At the request of the insurance, pension legislation of the Republic of Kazakhstan and the legislation of the Republic of Kazakhstan on microfinance organizations, persons who, in connection with their professional or official activities, have become aware of information containing insurance or pension savings secrets or the secret of providing a micro-loan, are required to keep secret the information they have become aware of about the owners of the information.
Violation of this obligation forms an independent part of the administrative offense provided for in the commented article.
The composition of the administrative offense provided for in the commented article is formal. In order to bring a person to administrative responsibility under the commented article, it is not necessary to establish the fact that the offender caused material damage to the entrepreneur.
At the same time, if material damage is caused by illegal actions of a person to a business entity, such damage may be claimed for full compensation by an interested person whose rights and interests have been violated, since bringing the offender to administrative responsibility under the commented article does not exempt him from eliminating the violations and compensating the damage caused to the entrepreneur.
For committing an administrative offense provided for in the commented article, the offender is subject to administrative punishment in the form of a fine.
The amount of the fine for committing an offense under Article 186 of the Administrative Code is 50 MCI, is fixed and is not subject to change by the body imposing it.
The case of an administrative offense provided for in the commented article is initiated only at the request of the victim and is subject to termination after reconciliation with the person who committed the administrative offense.
The case of an administrative offense under the commented article is considered and an administrative penalty is imposed on the offender by the National Bank of the Republic of Kazakhstan.
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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