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NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of January 24, 2020 No. 3

About some questions of application by courts of the legislation on cases on criminal offenses in the field of economic activity

(as amended of the Normative resolution of the Supreme Court of the Republic of Kazakhstan of 11.12.2020 No. 6)

For the purpose of ensuring the correct application of the legislation on cases on criminal offenses in the field of economic activity the plenary session of the Supreme Court of the Republic of Kazakhstan decides to make the following explanations.

1. Draw the attention of courts that the correct application of the penal legislation by hearing of cases about criminal offenses in the field of economic activity provides protection of the rights and legitimate interests of the physical persons and legal entities protected by the law of interests of society and state.

2. By consideration of criminal cases about illegal entrepreneurship courts should mean that according to Item 1 of Article 10 of the Civil code of the Republic of Kazakhstan (further - group of companies) and to Item 1 of article 2 of the Entrepreneurial code of the Republic of Kazakhstan (further - the Entrepreneurial code) entrepreneurship are the independent, initiative activities of citizens, kandas and legal entities directed to receipt of net income by use of property, production, sales of goods, performance of works, rendering services, based on the right of private property (private entrepreneurship) or on the right of economic maintaining or operational management of the state company (state entrepreneurship).

3. In case of qualification of act under article 214 of the Criminal Code of Kazakhstan (further – UK) on the basis of lack of registration to courts should mean that state registration of the physical person performing private entrepreneurship without formation of legal entity consists directed by it on accounting as the individual entrepreneur in body of state revenues in the location of this person. Criminal liability for illegal entrepreneurship on the basis of lack of registration comes in cases when according to Item 2 of article 35 of the Entrepreneurial code the physical person owed be registered as the individual entrepreneur, but did not make it, and these acts caused major damage to the citizen, to the organization or the state or they are integrated to commercialization in large size or production, storage, transportation or sale of excise goods in considerable sizes.

At the same time courts need to consider that 3, 4 articles 35 of the Entrepreneurial code and the tax legislation are provided by Items cases when person performing the business activity having the right not to perform registration as the individual entrepreneur. According to Item 1 of article 774 of the Code of the Republic of Kazakhstan "About taxes and other obligatory payments in the budget (Tax code)" payers of single cumulative payment the physical persons performing business activity without registration as the individual entrepreneur which at the same time correspond to the following conditions are recognized:

paid single cumulative payment;

do not use work of hired employees;

render services to exclusively physical persons who are not tax agents and (or) implement to exclusively physical persons who are not tax agents, agricultural products of self-produced personal subsidiary farm, except for excisable products.

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