Право/12. Предпринимательское и банковское право
Akhtyshkhan
Y.A., Dubrova N.B.
Karaganda
economic university of Kazpotrebsoyuz, Kazakhstan
RESPONSIBILITY FOR VIOLATIONS OF THE LAW OF THE
REPUBLIC OF KAZAKHSTAN IN THE SPHERE OF AN ENTREPRENEURSHIP
One of hot topics in the
entrepreneurial law is legal responsibility. It is known that this legal
institution is directly connected with assessment of the consequences of an
offense expressed in damnification to entrepreneurs and other subjects of an
entrepreneurship whose legitimate interests are violated and applied to offenders of measures of the state
coercion.
In the Entrepreneurial Code
of the Republic of Kazakhstan of October 29, 2015 No. 375-V the chapter 30 the
section 7 [1] is devoted to responsibility for violation of the legislation of
RK in the sphere of an entrepreneurship.
Regulations of the
entrepreneurial code have referential character, so according to Art. 320
"The violation of the law of the Republic of Kazakhstan in the sphere of
an entrepreneurship is punishable by laws of the Republic of Kazakhstan"
or Art. 322 "The harm done to the subject of an entrepreneurship by state
body or its official in case of implementation of the state control and
supervision is subject to compensation according to the civil legislation of
the Republic of Kazakhstan".
Let's analyze the mechanism
of implementation of regulations of legal institution of responsibility on the
example of banking activity as it is a kind of business activity. Therefore,
responsibility for offenses in the bank sphere has characteristic features
inherent in responsibility of entrepreneurs in general with the features
peculiar only for banking activity.
As it is noted in the
Concept of law policy of the Republic of Kazakhstan for the period from 2010 to
2020: "The legislation is designed to provide favorable conditions for
functioning and development of the domestic financial market, financial
services consumer protection and to promote fair competition in the financial
market" [2].
In a general form the responsibility
of entrepreneurs is understood as an obligation, need to make the certain
actions directed to recovery of the unexecuted established (agreed) obligations
(liabilities), violations of the rights of economic entities, clients, workers,
the states.
Respectively, the managing
partners, state bodies bear responsibility to entrepreneurs in case of failure
to carry out of the contractual commitments, decision making violating the
rights of entrepreneurs.
Responsibility arises because
of failure to carry out of the obligations and liabilities established by laws
in case of non-execution or improper execution of agreements.
Entrepreneurs bear legal
responsibility which represents the obligation established by precepts of law
to undergo adverse effects in case of non-execution of the obligations and
liabilities by them established by rules of law (laws) and agreements.
For offenses various
measures of responsibility, such as civil, administrative and criminal
liability may be applied.
Civil responsibility in the
market relations shall correspond to certain principles of market economy:
freedom of enterprise, equality of participants of civil legal relationship,
freedom of the agreement, etc. Responsibility in the entrepreneurial sphere
mainly is followed by application of sanctions of property nature: withdrawal
of property in the income of the state, payment of a penalty, losses,
penalties. Nevertheless, not all sanctions are responsibility measures. For
example, debt collection or withdrawal of property from others dispossession
are directed only on recovery of the violated rights and not connected with
punishment of the violator in the form of deprivation of him any rights.
The basis for bringing to
responsibility is fault of the offender. So, according to item 1 of Art. 359 of
the CC of the RK the debtor is responsible for non-execution of the liability in
case of with fault. Other order may be stipulated by the legislation or the
agreement. For entrepreneurs the possibility of discharge is provided by item 2
of Art. 359 of the CC of the RK if the obligation isn't fulfilled owing to
force majeure, that is circumstances extraordinary and unpreventable under
existing conditions (Acts of God, military operations, etc.). Absence in the
market of the necessary goods, works or services [3] for execution doesn't
belong to such circumstances, in particular.
In an entrepreneurship
extent of settlement of credit legal relationship is of great importance. In
this type of legal relationship most economically weak party needing special protection of the rights is
the borrower. In this regard we notice that the legislation provided the
regulations designed to resolve questions, connected with availability of
inequality of the rights between banks and their clients, the regulations
directed to financial services consumer protection are enhanced. In,
particulars, the Law of the RK "About Modification and Additions in Some
Legal Acts of the Republic of Kazakhstan concerning Mortgage Lending and Protection
of Financial Services Consumers and Investors" established a prohibition
on unilateral change of conditions of agreements of a bank loan, the limit size
of an annual effective rate of remuneration is determined. Indexation of
payments with a binding to any currency equivalent is forbidden. A ban on money
withdrawal, received by the borrower in the form of benefits and social
payments paid from the government budget and the State social insurance fund is
imposed. The penalty size for non-execution of agreement obligations of a bank
loan is limited. It shall not exceed 0,5% of the amount of an overdue payment
for each day of delay, but no more than 10% of the amount of the issued loan
for every year of validity of a bank loan. Besides, on the banks and the
organizations performing separate types of banking activities, the law
established a number of requirements. Banks are obliged to specify the
exhaustive list of the sizes of the commissions which are subject to collection
in agreements of a bank loan and to inform on it clients on Internet resources.
The law establishes the measures applied by banks to insolvent borrowers for
the purpose of a debt collection [4].
Along with the increased
civil responsibility, the entrepreneur can act as the subject any other of
responsibility types: criminal, administrative.
The banking activity
directed to generation of profit is integrated to a high risk because of
considerable concentration of a money, and assumes need of control as internal,
and from National bank - body of bank regulation and supervision of activities
of commercial banks. The national bank performs checks of banks, directs
instructions, obligatory for execution, about elimination of the revealed
violations and applies the sanctions established by the law. These measures may
be classified as administrative and preventive, administrative and preclusive,
administrative and punitive, administrative and recovery measures.
It is possible to refer to
administrative preventive measures of coercion, in our opinion, the requirement
from bank for change of an organizational structure and (or) the number of
staff of bank, restriction of adoption of deposits, increase in provisions of
bank, discharge from a position of leading employees of bank, to increase in an
equity of bank in the amount of, sufficient for ensuring financial stability of
bank, restructuring of assets and other [5].
Administrative and
preclusive measures may be considered the restriction of carrying out separate
transactions, suspension or restriction of separate types of banking activities
with a high risk, change for bank of obligatory standard rates, appointment of
temporary administration on bank management, etc.
According to the Law
"About Banks and Banking Activity in the Republic of Kazakhstan" the
National bank has the right to apply sanctions as which there may be such
measures as imposing and recovery of penalty, suspension or deprivation of the
license for carrying out all or separate banking activities, preservation of
bank, deprivation of permission to opening of bank, etc. [5].
Example of measures of
administrative and recovery nature is the requirement of National Bank of
acceptance obligatory to execution by bank of the remedial measures directed to
elimination of the revealed violations and on need of representation at the
scheduled time of the actions plan on elimination of the revealed violations
and the reasons, and also the conditions promoting their making.
As practice shows, crimes in
the sphere of economic activity by entrepreneurs, now, are rather widespread
phenomenon.
` Public danger of economic crimes is that as a result of such
encroachments to the subjects performing business activity the significant
damage is caused to economic interests. Thus, 35 different crimes in the sphere
of economic activity are provided by the Criminal Code of Kazakhstan. Their
main part is directed to providing reliable legal protection in business
activity and not to allow abuse of those who are engaged in the sphere of
economy.
In the bank sphere many
punishable offenses, the most widespread of which are a fraud, a pseudo-entrepreneurship, illegal receipt and
disclosure of the data which are a bank secrecy, abuses when using bank
guarantees, illegal receipt of the credit, etc., are made.
Heads of banks, accounting
workers and other categories of bank clerks quite often act as subjects of
crime.
The greatest public danger
is constituted by the crimes committed by heads of banks as damage is caused to
considerable groups of subjects of the economic relations. Crimes at the same
time are committed with use of illegal schemes, are characterized by various
methods. For example, Art. 242 of the Criminal Code of the Republic of Kazakhstan
considers the responsibility for submission of obviously false data on banking
activities, article 243-for use by employees of bank of own means of bank or
the raised funds of bank for issue of obviously irretrievable credits, etc.
[6].
Accounting employees are
also actively involved in illegal banking activities. Examples of such offenses
are misappropriation of deposits, dummy postings on customer accounts,
manipulation with percent on savings accounts, etc.
Bank credit departments are
the most sensitive for abuses. Cases of issue of fictitious credits, loans
without providing or under illiquid providing, overestimate of payment amounts
of percent and many other offenses are frequent. From entrepreneurs and the
organizations a crime is provision of obviously false data on an economic condition
or on other circumstances having essential value for receipt of the credit,
grants, preferential terms of crediting therefore major damage is caused to
bank (Art. 219 of the Criminal Code of the Republic of Kazakhstan).
Separately it would be
desirable to note such type of a crime as commercial bribery of bank clerks.
According to article 253 the commercial bribery is illegal transfer to the
person performing managerial functions in commercial or other organization,
money, securities or other property, and equally illegal rendering services of
property nature to it for use of the official position by him, and also for
general protection or connivance on service for the benefit of the person
performing bribery [6].
As a rule, commercial
bribery of the bank worker is performed for illegal issuance of credits with
violation of conditions or provision of benefits in case of issuance of credit,
establishment of preferential interest rates or release from collection of
percent.
Summing up the results, it
is possible to note that feature of sanctions in an entrepreneurship is that
they carry out mainly not retaliatory, but precautionary functions. Realizing
sanctions, the state thereby tries to prevent undesirable social, political,
economic consequences which may arise in case of unstable economic development
of the country.
Efficiency of implementation
of the legislation in the sphere entrepreneurial activities, completeness of
the embodiment of requirements of legality in the market relations, durability
of entrepreneurial law and order are determined by a number of the existing
factors. A lot of things depend on availability in society and the state of a
steady optimistical social and political situation. Both economic reforms, and
business activity may not be carried out in a certain vacuum, separately from
dynamics of general process of a reorganization of society. But the main thing
is a behavior of entrepreneurs, content of their activities as participants of
the economic relations, degree of its compliance to the standard legal instructions
enshrined in the economic legislation.
REFERENCES:
1. The Code of the Republic
of Kazakhstan of October 29, 2015 No. 375-V "The entrepreneurial code of
the Republic of Kazakhstan".
2. Decree of the President
of the Republic of Kazakhstan of 24.08.2009 No. 858 "About the Concept of law
policy of the Republic of Kazakhstan for the period from 2010 to 2020".
3. The Civil Code of the
Republic of Kazakhstan (A general part), is accepted by the Supreme Council of
the Republic of Kazakhstan on December 27, 1994
4. The law of the Republic
of Kazakhstan of February 10, 2011 No. 406-IV "About modification and
additions in some legal acts of the Republic of Kazakhstan concerning mortgage
lending and protection of financial services consumers and investors".
5. The law of the Republic
of Kazakhstan of August 31, 1995 No. 2444 "About banks and banking
activity in the Republic of Kazakhstan".
6. The Criminal Code of
Kazakhstan of July 3, 2014 No. 226-V.