of September 27, 2003 No. 16
About some questions of application by courts of the Kyrgyz Republic of the penal legislation of responsibility for illegal receipt of the credit, inappropriate use of public credit and tax avoidance
For the purpose of ensuring the correct and uniform application by courts of the Kyrgyz Republic of the penal legislation about responsibility for illegal receipt of the credit, inappropriate use of public credit, evasion of the citizen from the tax discharge, evasion of the business owner from tax payment and compulsory insurance premiums and tax avoidance and compulsory insurance premiums of officials of business entities (the Art. of the Art. 184, of 185, of 211, of 212, 213 UK Kyrgyz Republics), the Plenum of the Supreme Court of the Kyrgyz Republic decides to make the following explanations:
1. Illegal receipt of the credit - this crime can be committed in case of receipt of bank, commodity, and commercial credit.
General provisions according to which the credit agreement is signed contain in Chapter 34 of the Civil Code of the Kyrgyz Republic. So, in particular, Art. 734 of group of companies of the Kyrgyz Republic determines that according to the credit agreement the bank or other credit institution (creditor) shall provide money (credit) to the borrower in the amount of and on the conditions provided by the agreement, and the borrower shall return the received sum of money and pay percent on it.
2. The criminal code of the Kyrgyz Republic establishes responsibility for obtaining by the individual entrepreneur or the head of the organization of the credit or preferential terms of crediting by representation to bank or other creditor of obviously false data on economic provision or financial condition of the individual entrepreneur or the organization if this act caused major damage (p.1 to Art. 184 of UK of the Kyrgyz Republic), and also responsibility for the illegal receipt of the public purpose-oriented loan which entailed major damage (the p. 2 of Art. 184 of UK of the Kyrgyz Republic).
Article 184 UK of the Kyrgyz Republic extends to those cases when the borrower, intending to take the credit, intentionally misleads the creditor about the financial and economic provision, though does not pursue the aim of assignment of the received money, and expects temporary use by the money received fraudulently.
Notorious falsehood of data consists that true are consciously not brought in them or the incomplete data of the actual nature distorting sense and contents of information in them are reflected or the estimates consciously based on incorrect information are made.
It is necessary to carry data which under the existing regulatory legal acts and established practices are used in decision making process about crediting to data on economic provision or financial condition and influence will of the creditor, i.e. confirm the bases of obtaining and guarantee of repayment of the loan. Such data usually contain in the balance sheet, constituent and registration documents, in the profit and loss account in the last two years, in the report on movement of cash receipts, in data of internal operational accounting, in the tax declaration, in the business plan with indication of the income and expenses planned for quarter, in the feasibility statement on the credit, in the documents guaranteeing proper execution of the obligation (the guarantee, the bank guarantee, the agreement of pledge) in allowing documents (the license, documents for right to use or ownerships, for example, of the room, etc.).
3. Preferential terms of crediting are such terms for crediting as delay and payment by installments of return of the money or goods provided on credit, reduction of the size of interest for using money or goods and other conditions which according to the corresponding regulatory legal acts are granted only in the presence on the party of the borrower of the circumstances causing privileges.
Are not preferential terms in sense of Art. 184 of UK of the Kyrgyz Republic of privilege, provided by bank within freedom of the credit agreement at the discretion of the creditor.
4. Submission of obviously false data to the creditor is their transfer to person making the decision on the credit in shape which is under regulatory legal acts or rules of business conduct necessary for this purpose, i.e. comprises necessary details and legally binding signatures of the responsible person or other signs which demonstrate that data proceed from proper person and are considered and as completely reflecting its will.
The moment of bringing data to persons making the decision on the credit can be determined by the regulations of the civil legislation regulating the conclusion of the agreement.
5. The causal relationship between submission of false data on economic provision or financial condition and receipt of the credit or preferential terms of crediting consists that the decision it is based on obviously false data and would not be possible to accept without them.
6. On design the structure of illegal receipt of the credit is material and it is considered ended from the moment of causing major damage. Causing major damage - the compulsory provision of criminal liability according to Art. 184 of UK of the Kyrgyz Republic.
Major damage according to the note to Art. 178 of UK of the Kyrgyz Republic damnification is recognized the amount exceeding the minimum monthly salary established by the legislation of the Kyrgyz Republic at the time of crime execution by five hundred times.
7. Subjects of the considered act (Art. 184 of UK of the Kyrgyz Republic) are individual entrepreneurs, i.e. persons recognized as those in the operating legal procedure and also heads of the companies of different forms of business, irrespective of property type.
When the organization distributes functions of management, responsible for receipt of the credit shall be determined by statutory or other documents.
8. The subjective party of this crime - both direct, and indirect intent, i.e. the guilty person, can wish approach of criminal effects and is indifferent to them.
9. Illegal receipt of the credit should be distinguished from fraud (Art. 166 of UK of the Kyrgyz Republic).
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