of June 29, 2017 No. 6
About court practice on cases on fraud
Due to the questions which arose in court practice, changes of the legislation and for the purpose of uniform use of the provisions of the law, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:
1. Draw the attention of courts that obligatory sign of fraud is availability at the perpetrator of the mercenary purpose, that is the aspiration to turn is illegal and non-paid alien property in the property, or the right to it in own favor, or for benefit of other persons. It is swindled by deception or confidence abuse as a result of which the owner or other owner of property voluntarily transfers property or the right to it to other persons.
2. Deception is method of making of fraud for the purpose of plunder of alien property or acquisition of right to alien property. Deception can consist in deliberate introduction by the message, guilty in delusion of the owner or other owner of property, obviously false, untrue data or in concealment of the true facts which shall be told the owner or the owner of property, wrong idea of legitimacy of transition of property to ownership of the perpetrator and (or) other faces creating at the owner of property or the other person.
As a result of deception the owner or other owner of property, being misled, voluntarily transfers property to the perpetrator, believing that for this purpose there are bases, and it is effective to own advantage.
3. Confidence abuse as method of fraud is that the guilty person uses the trust which arose between it and the owner or the other person under whose authority the property, for the purpose of illegal receipt of alien property or the right to it from mercenary motives is.
The trust of the owner of property or the other person to the swindler can be caused by different circumstances: personal acquaintance, recommendations of relatives and other persons, official position of the guilty person etc.
4. In case of fraud deception can be expressed as in oral, and in writing.
Use in case of plunder of forgery documents is one of deception forms. The fraud committed with use of the forgery official document made by other person is completely covered by structure of fraud and does not require additional qualification under article 385 of the Criminal Code of the Republic of Kazakhstan (further - UK).
5. If person, having counterfeited the official document granting the rights or exempting from obligations swindled, the deeds should be qualified on set of the criminal offenses provided by part one of article 385 UK and the corresponding part of article 190 UK.
6. It is necessary to distinguish the plunder committed by fraud from the plunders committed in other forms, but having method of deception which does not cause voluntary cession of property the owner of property or the other person, but facilitates making of other crime (deception for penetration into the house, storage etc.).
7. It continues to hold in cases when deception is used by person for simplification of making of other crime connected with plunder of alien property during which making its actions are found the owner or other owner of this property however illegally without volition of the owner of alien property, the deeds should be qualified as robbery (person asks the owner of the mobile phone to make call, and then with it in case of the owner right there disappears).
8. Fraud is recognized ended since the moment when the abducted property is withdrawn and turned into adverse possession of the guilty person or other persons, and they had real opportunity to own, use or dispose of it at discretion as own.
If it is swindled in the form of acquisition of right to alien property, crime it is considered ended from the moment of origin at the guilty person of legally enforceable opportunity to own, use and dispose of someone else's property as own, after the corresponding registration, the certificate or registration of this right.
9. Under the fraud committed by way of deception or confidence abuse of the user of information system it is necessary to recognize the actions of the guilty person directed to occupancy by property or the right to property of the user of information system, made by means of information technologies (the computer, computer programs, the Internet, the cell phone, etc.), by placement in information system of obviously false information or programs, for the purpose of realization of its felonious intent on deception of the user by means of Qiwi-purse, Internet banking etc.
In cases when the specified acts are integrated to illegal access to information system or network of telecommunications, deeds is subject to qualification on set of criminal offenses under articles 190 and 205 UK, or 190 and 206 UK if illegal access to computer information was resulted by destruction and modification, violation of operation of the COMPUTER, the COMPUTER system or their network.
10. For differentiation of fraud from the civil relations it is necessary to consider that in case of fraud the intention directed to plunder of alien property or acquisition of right to alien property by deception or confidence abuse arises at the perpetrator to and (or) at the time of the conclusion of the agreement providing receipt of alien property or right to it.
In such cases deceitful practices of the guilty person shall be in causal relationship with the fact of receipt by the guilty person of property or acquisition of right to property, i.e. deceitful practices shall precede transfer of this property or acquisition of right to it.
11. Courts should consider what about availability of the intention directed to plunder by fraud in case of contractual commitments can witness set of such circumstances as notorious absence at person of real financial and other material opportunity (material equipment, labor collective etc.) to fulfill the assumed obligation, or the necessary license, the operating authority directed to obligation fulfillment under the agreement, use by person of forgery constituent documents or guaranty letters, concealment of information on availability of debts or pledge on property, the conclusion of obviously unrealizable agreements and others.
When the contract between the parties is signed with mutual intentions of the parties to fulfill the corresponding obligations, but after its conclusion and receipt of material benefit one of the parties has objective circumstances interfering execution of the undertaken obligations, the deeds cannot be qualified as fraud.
12. Illegal receipt of social payments and benefits, money transfers, bank deposits or other property from mercenary motives based on someone else's personal or other papers (for example, the pension certificate, the certificate of birth of the child, the bank savings book in which the name of its owner, or other personalized security etc. is entered), forms structure of fraud.
Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info
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