Security is one of the main instruments of the financial market. This document which certifies property rights in the market often attracts interest of many. Therefore criminal liability for violations of the rights of subjects on securities market is provided in standards of the criminal legislation. This work is devoted to a problem of subjects of the criminal offenses regulated by the articles 224,225,226,227,228,231 Criminal Code of Kazakhstan. In article certain subjects of the called criminal offenses, a concept of the official person issuer are defined and also the question of criminal prosecution of legal entities is considered.
Keywords: the criminal offenses which are directly connected with securities market, criminal liability for criminal offenses on securities market, securities, securities market, a subject of criminal offense on securities market, the legal entity as the subject of criminal offense.
Introduction
Kazakhstan has been following new directions of development since proclaimed its independence. Political and economic system of reforms of independent Kazakhstan has democratized life from all sides, at the same timehas integratedinterests of an individual and the whole society, to enrich person’s spiritual life, to live in dignity and create conditions for the work, to form the social justice and political freedom.
The Presidentin his message «The stability and security of the country in the new century» proclaimed: «Open economy and integration into the powerful world economic zones – the only way of survival of the nation and the state. Not only in the economy but also in politics attempts invention a special way are doomed to failure. Kazakhstan cannot go contrary to world trends. Open society without democracy cannot be built» [1, 5 article].
To form a new state was not easy at different times. In the early years of independence, the global crisis has given the people of Kazakhstan to feel a huge impact. In accordance to formation of market economy in Kazakhstan, there have been profound changes in all spheres of society’s life.
The process of development in the market economy sphere has its peculiarities. There have been new types of financial institutions, various private properties, system of commercial banks, financial and currency stocks, investments, non-governmental pension funds, business quickly spread, system of payment rebuilt. However these conditions have strengthen with material and technical resources, without organized and legal preparation have been realized. Information sources were used enoughwithout legal order. However it’s too difficult and full of contradiction to make the law which regulates economic legal relations.
The economics is the general movement which provides for living being organism and the finance of the economics «blood system» for those people who live in one state, in one society, in certain region at the same time, and breath with one law. So the finance plays the important role in formation and stabilization of economics. N.A. Nazarbayev in his message to the people «New Kazakhstan in new world» considers the ways to be in the pedestal of 50 competitive countries and entrusts to solve a main problem of new period.One of them is not only to provide development of economic stability but also to govern its growth. It is said that «We must increase the stabilization and competitiveness of financial system to new level of liberalization». We must form effectively operates market fund. Its development impossible if people don’t draw their investments in securities» [2, 6 article].
In connection with it the Republic of Kazakhstan together with other CIS countries is going through the development and stabilization tendency of securities market which is the main component of market economy. The formation of securities market in Kazakhstan set up at the
beginning of 90th of former century, at that time primary establishments of market funds have being formed on the based of Union of Soviet Socialist Republics.
Securities are documents with necessary requsition which legally certifies property and their realisation is possible when you give them to someone. These property documents are assignation of money for credit, buying, selling or deposit property.In connection with it securities allow to receive revenue to their owners. At last capital invested into securities will be self fund.
Securities are important investment consolidation of state’s credits in turn because total securities in turn form the basisof charter fund. So securities are too active part of Kazakhstan’s nowadays market economy and an effective instrument which realize brokers or directly emitents and investors interests. Law of the Republic of Kazakhstan about «Securities market» which was adopted on July2, 200 identify securities status, and directly affects in realization of legally operated market relations.
However there are some difficulties in market fund stabilization. They are: formerly growth of inflation, stagnation of production means, for the most economic subjects the lack of work experience in market fund. There are less representatives of middle group, manufactures of internal production are the main large strategic companies which interfere to work effectively to this sphere. Large companies consolidate their securities in order to participate actively in market fund and refuse to put into turn. So due to such consequences the market fund is near to commit crimes that can cause considerable damages.
Nowadays there are new methods of criminal infringement in securities market, crime quality in economic sphere has been changed. Schemer criminals illegally seizure the monitoring package of stocks, and illegally move the private companies owners to oligarchical groups.
The self regulative organizations, law protective and monitoring bodies prevent such crimes in certain measure in securities market. However in our state in fixed economic situation these measures cannot give their results. That’s why there are still criminal territory.
The law creative work and law application intensively develop in securities market crime prevention civil and criminal law sphere connected to securities market.
It’s necessary to use strong and influential measures when there is shortage of civil legal and administrative methods and their prevention in work experience. We tell neither about administrative legal responsibilities nor contents or fixed sanction for lawbreakers.
According to criminologist scientists point of view the violation nature in securities markets and the lawbreakers’ characteristics, therefore the influence of legal responsibility to regulate law order is not a struggle weapon with lawbreakers in financial and organization sphere.The only way to solve this problem is to increase types of legal responsibilities in securities market. Therefore some articles have been aimed in the Criminal Code of the Republic of Kazakhstan (amendments and additions from May 15,2007) .
Some crime classifications in the securities market have been identified in the theory. We can examine crimes in securities market by dividing them into two groups: crimes directly connected to issue and circulation of securities and crimes indirectly connected to issue and circulation of securities.
Crimes directly connected to the issue and circulation of securities will have been entered to VII chapter «Relations in the sphere of economic activity» of the Criminal Code of the republic of Kazakhstan. They are: 224-article – to violate the issue of emission securities; 225-article – emission securities officials give no information or wittingly false information; 226-article – to enter wittingly false information into the register of the securities bearer; 227-article – to give wittingly false information about professional participants of securities market; 228-article – to violate the rule of securities operation; 231-article – to issue or buy the forged money and securities.
The main part
Let’s examine problems directly connected to securities of crime subjects.
Crime subjects in securities market must be a 16 year-old, sane individual, committed several crimes.
The subject’s characteristics: an individual, sane, reached to criminal responsible age. There are no identical attitudes towards sum of additional characteristic. R.O.Orynbayev describes the special subjects in the following way [3, 57-65 article].
- signs describing the legal position (foreign citizen, citizen of the republic of Kazakhstan);
- signs describing the profession and position;
- signs describing the relationship between victim and guilty (parents,guardians, children);
- signs describing physical position (man, woman, teenager).
According to N.S.Leikin and Grabovsky’s point of view the special subject description has certain peculiarities in crime norm disposition, however E.F. Frolov and R. Galiakparov consider the characteristics describing special subject is the recidivist [4, 92 article].
As for V.R.Schavinsky the subject of violation the issue of secutities (emission) and circulation (CriminalCode of Ukrainie republic 223 - article) – subject of economiic activity – citizens and officials are the emissions, in some circumstances 14 year old citizen also can be an emission. [5, 17 article].
The crime subjects directly connected to the issue and circulation of securities ( Criminal Code of the republic of Kazakhstan 224, 225, 226, 227, 228, 229, 230, 231 articles) –mainly special, only 206 article of the Criminal Code of the Republic of Kazakhstan is the simply subjective. Their characteristics are the following: position, field of specialty, profession, spending a lot of time for crime preparation, to be familiar with banking system, to try to do some experiments in technical direction, to own corresponding materials and the others. It’s impossible to commit such crimes without participant of financial and credit employees or authorities who have certain profit portion from criminal activity. The vast majority of such crimes are committed by multi level crimes or a group of people. The reason is the participation of companies, departments, many employees in financial operation, the complexity of document circulation, the limited time for operations.
The special subject for these crimes – company official- registrator, leader of company-emission, director, chief accountant, the chairman of inspection committee who signed the concluded report of the issue and circulation of securities, an official who concluded wittingly false report of authority body on securities issue and the others.
The subjects in securities market:
- Individual and institutional investors, emissions, professional participants of securities market, organizer of buying-selling and self- regulative
- Professional participants of securities market who have licenses to realize the governing of investment portfolio service, or individual investors who invest emission securities individually or with the help of broker or middleman
Investor – an individual and corporation who invests funds into securities for the profit. To cope with this activity emissions address to professional middlemen or brokers because to issue securities in market circulation during the competitive period demands professional skills and competitiveness.
Dealer – professional participant of securities market who has direct right to provide his interest and to bargain with emission securities from his own expenses and other financial means in unorganized securities market and organized securities market.
Broker – professional participant of securities market who bargains with emission securities and other financial means from client’s expenses, interest and order.
Emission– an individual who realizes the issue of emission securities. Emission can be state, local administration, corporations, financial institutions and the other legal entity.
Underwriter – professional participant who has license to realize dealer’s and broker’s service in securities market and serves in issue and placing of securities to emission. Emission consortium – the union which was created on the basis of underwriters’ united service condition in order to serve the emission in issue and placing of securities.
Let’s examine above mentioned crimes subjects in detail.
224 article of the Criminal Code shows the crimes subjects – a union which concluded emission prospect with special - wittingly false information – an official who concluded wittingly false report about emission authorities or authority body’s securities issue which was edited by S.M.rakhmanov and T.A.Bapanov in the interpretation of the Criminal Code of the Republic of Kazakhstan. Usually these activities are made not by an individual but target group because to conclude all mentioned documents have been examined and decided in the Majilis.
According to nowadays rules and procedures the securities prospects must be signed and realized by the chief accountant and the executive body of identical emissions. Independent estimator and auditor must prove the truth of information.
An official is the crime subject who gives no information or wittingly false information about emission securities (Criminal Code of the republic of Kazakhstan 225-article). According of article 3 of the Criminal Code of the republic of Kazakhstan the conception «an official» who realizes permanent, temporary or on special competence of representative authority’s function (i.e. concerning the service independent people who have right to promulgate on behalf of the state or fixed legal order the legal importance act), who execute the economical, organization and authority or administrative functions of state bodies, local self-administrative bodies and the Armed forces of the Republic of Kazakhstan and other army and military structures.
It’s obvious that an official must be the state servant. And issuer – legal or individual who issue emission securities, he cannot be the state servant in all circumstances, he is only concerning about state securities. In this case instead of the crime subject «emission official» it’s relivant to use «emission-authority». Emission –authorities – are individuals responsible for not giving information or fase information to state bodies, securities holders, investors.
Two alternative action consisting the objective crime have been considered in article 200 of the Criminal Code of the Russian Federation: issuer’s financial and economical activities, securities, decisions and not giving wittingly information to the Investor or control body; according to these questions to give wittingly incomplete or false information to investor or control body. There is no concrete conception about control body in the Criminal Code. Administratiive measures will be used in case if above mentioned activities cannot incur losses and if there is no wittingly evasion sign (according to article 15-19 of the Administrative lawbreaking code of the Russian Federation).
Investors have the right to get information of emission securities issue. During the placing of emission securities the issuer (underwriter, emission consortium) is obliged to give the issue prospect of securities or its copy according to the primary demand of investor. The Issuer (underwriter, emission consortium) for giving the issue prospect of securities copy can get payment from the investor not exceeding the sum spent for its preparation.
The subject who gives wittingly false information to register of securities holders (226-article of the Criminal Code of the Republic of Kazakhstan)is a16-year old,sane person.
In the interpretation [6, 502 article] of the Criminal Code of the Republic of Kazakhstan edited by I.Sh.Borchashvili have been shown that the special subject, committing such crime, is a leader of organization stands in for register’s position or an official person of a bank who can cope with this kind of registration. However in the interpretation of the Criminal Code of the Republic of Kazakhstan edited by S.M. Rakhmetov and T.A. Bapanov, in addition to above mentioned subjects they include a chief accountant and a chaieprson of control committee on issue and placing of securities [7,369 article].
Registrar – professional participant of securities market who realizes, keeps, corrects the register of securities holders.
A to give wittingly false information about professional participants of securities market (227-article)As forcrime, when professional participants of securities market give wittingly false information (227-article of the Criminal Code of the republic of Kazakhstan), a professional participant of securities market – realizes his activity through the license basis of securities market or acts corresponding to the code and is a legal entity who works in organization and legal department of the joint- stock company (not including the broker, dealer, registrar, transfer-agent and don’t give client’s right for report).
The securities operation groups are the following: emission operation; credit operation; bill of exchange operation; stocktaking operation; buying and selling of securities at his own expenses or task operation; service operation concerning to securities; deposit operation.
Banks in securities market of the Republic of Kazakhstan realize the banking operation and service through professional and non- professional participants of the market.
Banks’ several operation operate with securities the Civil Code of the republic of Kazakhstan 129-134,136,139- articles, 3- subclause of 715-article, 2-subclause of 716-article, «The National Bank of the Republic of Kazakhstan» The law of the Republic of Kazakhstan 8-article, a) and b) subclauses, 27,28-articles, 33-article, 35-article, 36-2-article, 36-3-article, 52-1-article’s 1),2),3), 4),5) and 6) subclauses, 54-article’s corresponding rules, 56-article’s a),b), c)-subclauses, 57- article’s corresponding rules, 58- article’s corresponding rules, «Bank and Bank service of the Republic of Kazakhstan» The Law of the Republic of Kazakhstan 16-article’s 1,2,3,4 and 8-subclauses, 26-article, 30-article’s i), v)-subclauses, and 4-subclause’s a),b),b-1- subclauses, 42-article’s 1-subclause; «About the Joint-stock companies» The law of the republic of Kazakhstan 3-article’s 1,2,4-subclauses, 11- artice’s 1-subclause, 12,13-subclauses, 16-32- subclauses; «About securities market» The law of the Republic of Kazakhstan 3-article, 4-30- subclauses, 44,45-sublcauses, 50-artice, 55- artice, 63-artice, 65-artice, 69-artice, 73,74- artices, 83,84-artices; «about Fianacial market and state regulation and monitoring of financial establishments» The law of the Republic of Kazakhstan 9-article,12-artice; National Bank of the Republic of Kazakhstan and Financial Market and regulation and monitoring of financial establishments Agency of the Republic of Kazakhstan corresponding normative legal actswill regulate according to some corresponding operations.
The crime subjects are 16-year old, sane people who serve professionally themselves in securities market and who have special permissions (license). people There is no limitation in number of subjects who is responsible for operaton with securities. The issuer is professionally assisted by the specialists who issue securities, securities market at high level or intent to organise contract in secondary securities market (securities in turn). The professional participants are: broker, dealer, transfer-agent, registrar, underwriter, leader of investment portfolio or pension assets, custodian, nominal holder and self-regulative organization, securities’ trade organizers. In this norm nominal holder is considered as securities holder.
Transfer-agent – professional participant of securities market who serves to take and transfer documents (information) among his clients.
Investment portfolio or pension assets manager – professional participant who acts on behalf of himself protects clients’ interests and its realization the report of governing the civil rights objectives of securities market.
Custodian – professional participant of securities market who realizes activities corresponding to the acts in the Code of the Republic of Kazakhstan, takes report about clients’ finance and financial weapons and in accordance with them confirms the rights, takes responsibility for storage of the financial documents.
Insider– professional participant who can own the issuer’s or its affiliated person’s shares (portion-sharing in charter capital), be a member of the issuer’s or its affiliated person’s managerial body, can conclude the contract the issuer’s or its affiliated person’s labour and civil rights, and as an official person of state body use all given power to reach insider’s information.
Self-regulative body – a legal entity was created by the professional participants of securities market in the target union, who intends to sign identical rules and standards of his service in securities market.
To violate the securities operation rules (228-article of the Criminal Code of the Republic of Kazakhstan) the crime subject – special, 16-year old, sane, an official who is responsible for securities operation which have been shown in the interpretation of the Criminal Code of the Republic of Kazakhstan edited by S.M.Rakhmetov, T.A.Bapanov. As for the conception «an official person» according to the law of the Republic of Kazakhstan «about the State Service» must be used concerning to state servants. The professional participants in securities market, the issuers and the other subjects don’t concern to this category. That’s why it’s correct to say that the crime subject is «an official responsible for realization of securities operation».
The crime subject must be a 16 year old, sane official who can make, store or sell the forged money or securities (231-article of the Criminal Code of the Republic of Kazakhstan).
The problem of admission a legal entity as a crime subject in criminal and legal literature have arised theoretical arguments for many years and it’s better to mark these crimes while selecting. The crime relations in the sphere of economic activity, namely in securities market have a great importance and in experimentation. The criminal responsibility problem of legal entities hasn’t been appeared at once in the science. However, the reason of admission a legal entity as a crime subject related to economic crimes, environment pollution, water and land deformation. ХХ century «in the period prosperity of wild capitalism, state has lost its influential power to financial economy. The states with highly developed economics have faced to such situation at their time but they could solve complex problem. For instance, in the USA in the period of the winning great clash, considering the criminal cases, the theory of criminal and legal responsibilities have been adopted, and corporation leader has been found guilty then. Corporations together with their staff will be make answer. According to the USA courts’ opinion, a legal entity will be able to responsible for individual’s criminal activities for the benefit of corporation. Even if another person who was involved in criminal case has been found innocent, he won’t stand in the way of the corporation make answer, where he worked. The corporation won’t make answer in case if corporation staff was found guilty for their benefit.
It’s more efficient to make answer an individual with an American experiment than to make answer the legal entities in economical sphere. Not only legal entities will make answer for economic crime but also organizations.
According to some authors’ points of view, if the legal entity has been signified as the crime subject then the state will lose its civil rights and administrative regulative method of rights with corporations, organizations, enterprises, because to regulate the relation (law breaking) between an individual and a state by criminal and legal rules are the last measure is the general admitted fact.
According to the foreign scientist, Khanna’s opinion, in order to make answer the legal entity, the following signs must be kept:
- a legal entity employee consciously commit illegal act (realizes),
- an employee acts within his authority;
- an employee acts for the benefit of a legal entity [8, 1489-1490 articles].
V.I. Zhukovskii proposes that to consider a legal entity as a special subject of a crime we should reconsider the following problems:
- there is no special subject conception in criminal law, a special subject’s signs will be reconsidered in theoretical research; to make answer legal entities in criminal legal and clerical sphere may arise serious problems concerning to the Decree of the Supreme Court Plenum.
- the main institutions of criminal law have widespread and will be continued the several decades, and that’s why if consider a legal entity as a special subject to keep formed postulates in theory and practice it is not necessary to change a lot the general part of the Criminal Code;
- a special subject has additional signs together with general subject signs, or the disposition of Special department norm, or the identified conception of individual crime type.A legal entity may be recognized as a special subject of crime if we change the concrete norms of special department;
- it’s necessary to examine in detail and correct several norms in order to admit a legal entity as a special subject;.
- this type of legal experiment will be representative basis in further researches, a legal entity as a special subject of crime will form limited and necessary experiment according to participated criminal Otherwise, these acts will be ended with no result;
- this given legal experiment would be useful in any case to develop legal science and experiment;
- in experiment to consider a legal entity as a crime subject administrative lawbreakers to found guilty a legal entity it’s necessary to take into account the Code about administrative lawbreakers because their norms are similar to the norms of the Special department of the Criminal If we consider a legal entity as a special subject these norms describes as banks and will be identified as a violator of any signed rule with other laws and department normative acts.
Of course, it’s impossible to consider a legal entity as a subject in all crime types while not to research it deeply, because for individual crimes this case is unsuccessful. However, in the project of the Criminal Code of the Republic of Kazakhstan, a legal entity is a crime subject and it was considered in individual criminal norms classified articles. The conception of criminal lawbreaker encloses crime and criminal wrongdoers, and was given a conception concerning to individual and legal entities. Corresponding punishments for individuals and legal entities have been specified.
We have considered up to nowadays that the theoretical basis of criminal responsibility is the crime weapon, it’s important to presence all corpus delicti elements. So, to make answer an individual it’s necessary to be crime objects, objective side, subject, subjective side, as for a legal entity, the main element of crime subjective side is a fault describes according to a legal entity employee’s point of view to criminal act. To make answer a legal entity is stronger than to make answer individuals because a legal entity will be liquidated, punished and as a result of it hundreds of employees will be unemployed.
As a matter of fact, the arguments considering a legal entity as a crime subject have been arised among scientist for a long time as above mentioned would find its decision as a result of crime experiment, complex scientific research.
Conclusion
225- article of the Criminal Code of the Republic of Kazakhstan about securities issuer an official of state body together with securities holders evasion issuer official corresponding information or must be considered measures of giving false information. Securities Issuer official gives no information or gives false information (225-article of the Criminal Code of the Republic of Kazakhstan) about criminal norm criminal subject instead of «issuer official» conception it’s relevant to use «issuer authorities».
Securities issuer official person gives no information or gives false information (225- article of the Criminal Code of the Republic of Kazakhstan) about norms to deprive its authority position punishment only an issuer – state servant – it must be used to authority.
Violation of rules securities operation have been shown (228-article of the Criminal Code of the Republic of Kazakhstan) crime subject is an official. As for the conception «an authority» «about State service» corresponding to the Code of the Republic of Kazakhstan must be used only to state servants. As for professional participants, they are not in this category. Lawbreakers securites operation rules they are professionalparticipants securities operation implement functions as term basis.
References:
- Назарбаев Н.Ә. Дөңгелек үстелдегі баяндама // Ел Президентінің «Еліміздің жаңа ғасырдағы тұрақтылығы мен қауіпсіздігі» туралы Қазақстан халқына Жолдауына орай заңдарды жетілдірудің проблемалары» тақырыбында арналған «Дөңгелек үстел» материалдарынан. – Алматы, – 188 б.
- Назарбаев Н.Ә. «Жаңа әлемдегі жаңа Қазақстан» атты Халқына жолдауы. – Алматы, – 27 б.
- Щавинский В.Р. Уголовная ответственность за незаконную эмиссию негосударственных ценных бумаг: автореф. …канд. юрид. наук. – Киев, 2004. – 20 с.
- Орынбаев Р.О. Специальный субъект преступления. – Алматы: Наука, 1997. – 153 с.
- Фролов Э.Ф., Галиакпаров Р.Р. Множественность преступных деяний как институт уголовного права. – М.,1967. – 356 с.
- Комментарий к Уголовному кодексу Республики Казахстан. Общая и Особенная части / под общ.ред. И.Ш.Борчашвили. Изд-во 2-е. – Алматы: Жеті жарғы, – 992 с.
- ҚР Қылмыстық кодексіне түсінік / Жалпы редакторлар С.М.Рахметов, Т.Ә. Бапанов. – Алматы: Изд-во «Норма-К», – 648 б.
- Harvard Law Corporate criminal liability what purpose does it serve? // Volume 109 (Number 7) May 1996.; http: // papers.ssrn.com/so/3/// papers.cfm?abstract_id=803867.