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NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

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.

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