Separate issues of qualification of unlawful actions committed in the sphere of equity participation in the construction of residential property

This article describes the current state of law enforcement practice of crimes in the sphere of equity participation in the construction of residential facilities in the Republic of Kazakhstan. In the modern period, special attention is paid to the level of crime in this sphere of social relations. As applied to the subject of the study, there are a number of problems related to the qualification and definition of investigative jurisdiction under shared construction of residential facilities. Acquisition and disposition of residential property is an important and responsible moment in the life of each person, because often for many it (real estate) is the only vital value. The high cost of real estate and its invaluable social significance causes the emergence around it of various kinds of intermediaries, criminal structures, the spread of fraud in this area, including in the sphere of equity participation in housing construction. In this article we will talk about swindling, committed in this social sphere, which has spread widely in the Republic of Kazakhstan and is classified as a category of difficultly provable criminal offenses. Analysis of law enforcement practice has shown that it is the misconduct of relevant state bodies, their erroneous actions that often predetermine the negative outcome of such a social phenomenon as the share participation in the construction of residential property.

Over the past few decades, there has been a trend in the Republic of Kazakhstan for the growth of crimes committed in the sphere of multi-stored housing construction, mainly in the cities of Astana and Almaty. Rapid processes of urbanization, migration, expansion of territorial boundaries of cities of national importance, contributed to the emergence of negative social consequences in them; in particular, there was an acute shortage of housing. And the subsequent processes of rapid development of housing construction led to this area a large number of construction companies, many of which had no experience in this area and did not meet the requirements for construction. Some of them, under the guise of construction activities, by fraud and abuse of trust, misappropriation and embezzlement committed embezzlement of citizens' money.

Unscrupulous construction companies, especially those who carry illegal designs, offer buyers accommodation in unfinished facilities at a price below the real cost price. From the economic point of view, such a price does not take into account risks, possible material price increase, inflation and other unforeseen expenses. But for potential buyers the cost of such a square meter is more than attractive. As a result, residential complexes of such companies either do not finish building or become long-term construction.

It should be noted that many provisions of the Law of the Republic of Kazakhstan «On Shared Participation in Housing Construction», adopted in 2006, were not fully regulated, which led to large violations in this sphere of legal relations. And the systemic financial crises that followed in 2008-2010, negatively affected the state of virtually all spheres of the Kazakh economy, contributed to the growth of criminality in general and in the construction industry with equity participation, in particular. Thousands of co-investors left without apartments, not a small part of them became involved in the activities of various kinds of housing and financial pyramids and was deceived by their founders.

Given the complexity and insufficiency of the legal regulation of relations in the field of housing construction with equity participation, as well as the possibility of committing theft of equity holders' funds, unfair performance of civil obligations, 15 amendments and additions were made to the above law from the moment of its adoption, mainly they were directed to strengthening the requirements imposed on construction companies.

According to the information provided by the State institution of the Committee on Legal Statistics and Special Accounts of the General Prosecutor's Office of the Republic of Kazakhstan in 2010 and 2011, no criminal offenses in the field of equity participation in the construction of residential real estate have been registered. In the period from 2012 to 2016 in the field of housing construction 110 criminal offenses were registered. Of these, respectively: 2012 - 33; 2013 - 40; 2014 - 24; 2015 - 2; 2016 - 11. When using this information, it is necessary to take into account one feature. According to the Investigation Department of theMinistry of Internal Affairs of the Republic of Kazakhstan, criminal cases of this category are committed and are in the production of investigative divisions of the cities of Astana and Almaty. In the period from 2010 to 2015 in the Karaganda region in the field of housing construction of criminal offenses is not registered. Only in 2016, during the period from January to May, 15 criminal cases were registered on the grounds of the offense stipulated in Article 189 of the Criminal Code of the Republic of Kazakhstan (the Criminal Code of the Republic of Kazakhstan) (Assignment or embezzlement of entrusted property) with respect to the construction company «Azbuka zhilya» subsequently transferred by territoriality to the Ministry of Internal Affairs of the Republic of Kazakhstan. In other regions of the Republic (East Kazakhstan region, Akmola region, Department of internal affairs in transport, Pavlodar region, North-Kazakhstan region, Kostanay region, Aktyubinsk region, West Kazakhstan region, Atyrau region, Mangystau region, Kyzylorda region), criminal offenses in sphere of housing construction during the period from 2010 to 2016 are not registered [1; 46-55].

Consequently, it can be concluded that the above 110 facts registered in the sphere of housing construction in the period 2012-2016 are attributable to the cities of Astana and Almaty. During this period, 177.326 crimes were registered in Astana (2012: 22760, 2013: 34756, 2014: 34985, 2015: 43441, 2016: 41384). According to the city of Almaty, there are 311,106 crimes (2012 - 52022, 2013 - 55482, 2014 - 61391, 2015 - 73507, and 2016 - 68704). In the total number of two regions account for 488.432 registered crimes. In the percentage of 110 criminal offenses registered in the sphere of housing construction, 0.23 % of the total number of recorded crimes in the cities of Astana and Almaty in the period 2012-2016.

In this regard, one of the priorities of the criminal policy is to improve the quality of not only the criminal and criminal procedural legislation, but also the norms regulating housing relations in general and housing and construction in particular. Normative and legal acts regulating public relations in the sphere of shared housing construction must meet the requirements of legal accuracy and predictability of consequences, that is, they must be formulated with sufficient clarity and are based on clear criteria that make it possible to clearly distinguish legitimate behavior from wrongful, excluding the possibility arbitrary interpretation of the provisions of the law [2; 4].

One of the typical mistakes in forensic practice is that practitioners are superficially oriented in the legislation regulating the housing construction in the Republic of Kazakhstan; they do not really understand the activities of construction organizations and, accordingly, cannot understand in what form the developer is building and realizing residential objects. As a result, everything is recklessly reduced to the fact that the construction of houses for residential purposes should be carried out in accordance with the legislation on equity participation in housing construction. Judging by the results of the study of individual materials of criminal cases, it can be concluded that there was no agreement between the construction organizations and citizens on the share participation in housing construction. Therefore, pointing out a violation by the developer of the Law of the Republic of Kazakhstan «On Shared Participation in Housing Construction» is a gross error, since the Law regulates relations, is directly related to the activity on share participation in housing construction, and these relations, based on the contract on share participation in housing construction.

When investigating the category of criminal cases in question, the versions aimed at verifying and detecting the theft of funds through illegal payroll, bonuses are not nominated, respectively, are not made. As a result, it is not always possible to establish the true amount of the stolen things, the ways of its withdrawal (development), as well as those involved in the crime. While carrying out of the specified actions that would promote more objective, there is a full and all-round production of pre-trial investigation.

In the process of the pre-trial investigation, the establishment of the fact of fraud, with fraud, taking into account the fact that in the relationship between the culprit (developer) and the victim (the investor of funds for the construction of a dwelling house), a contract should be paid special attention to the moment the intentions arise from the guilty to seize money means of the victim, not having thus intentions to fulfill the obligations connected with conditions of transfer to the victim of the specified means. This act should be qualified according to art. 190 of the Criminal Code of the Republic of Kazakhstan, if the intent aimed at embezzlement arose with the guilty before receiving these funds. If the intent to steal money from citizens from the guilty arisen after receiving them, or to prove involvement in fraud is not possible, the actions as a whole are justified according to art. 189 of the Criminal Code of the Republic of Kazakhstan, as misappropriation or embezzlement of entrusted property of others; taking into account that the person obviously did not intend to fulfill the obligations.

Actions should be classified according to the totality of art. 189, 190 of the Criminal Code of the Republic of Kazakhstan, if the intent to steal money by misappropriation or embezzlement arose from the guilty person after receiving it from some depositors and continued against other investors by means of attractingtheir funds through fraud or abuse of trust. When investigating fraud, misappropriation and embezzlement of entrusted property, the investigative authorities lose sight of the elements of the crime that are formed in the actions of the perpetrator, as provided in Art. 250 of the Criminal Code of the Republic of Kazakhstan «Abuse of powers», which in some cases should be qualified for the aggregate of crimes.

Standards of such articles as 189, 190 of the Criminal Code of the Republic of Kazakhstan have a close connection with art. 250 CC, because they have some common characteristics:

• – the commission of both crimes is covered by one act;
• – the act is committed by one subject of a crime that meets the requirements of paragraph 19) of ф rt. 3 of the CC RK.

The difference between these crimes, committed as a single act and forming an ideal aggregate, consists, first, in the fact that these acts infringe on different objects. For fraud, misappropriation and embezzlement of entrusted property of others, the object of encroachment is «property», and in case of abuse of authority, «the interests of service in commercial and other organizations». Secondly, as a result, there are various socially dangerous consequences, which are caused by encroachment on various objects.

The Supreme Court of the Republic of Kazakhstan in clause 18 of the Normative Decree «On Judicial Practice in the theft cases» of 11 July 2003 draws attention to the fact that the use of guilt by its official position is a qualifying sign of theft, and believes that under art. 250 of the Criminal Code of the Republic of Kazakhstan additional qualification such an act as «abuse of authority» do not require [3].

In part, we share this approach, but only if the official's use of his official powers manifested in the theft of someone else's property, when in fact his withdrawal occurred and, accordingly, the occurrence of socially dangerous consequences in the form of causing significant harm, as well as the use of the perpetrators his official position, are covered by articles 189, 190 of the Criminal Code of the Republic of Kazakhstan [4].

At the same time, we believe that the actions of an official should be classified according to the totality of these crimes if, using his official powers, in one case commits the theft of someone else's property, and in another - official abuse from mercenary or other personal interest, not related to the theft of someone else's property. For example: the head of a construction organization, using his official powers, along with the theft of funds of citizens, also plunders the company's assets (cash, inventory or other property) for personal gain.

Thus, in the process of pre-trial investigation, the investigator must first of all properly establish:

1. the circumstances under which an official of a commercial or other organization, using his powers, receives illegal profits, in one case - without being associated with the theft of money of citizens, and in another - when he abducts citizens' funds, automatically causing damage to the normal activities of the organization, and also to the rights and legitimate interests of citizens and other persons participating in housing construction;
2. determine the origin and movement of own funds, inventory and other assets of the company from funds financed by citizens and / or organizations for the construction of facilities.

In the process of pre-trial investigation of criminal cases of abuse of authority (article 250 of the Criminal Code of Kazakhstan), the investigating authorities should determine whether the suspect is a subject of the crime - an official who performs managerial functions in a commercial or other organization. At the same time, one should proceed from the fact that here we are talking about a special subject of crime defined by clause 19) of article 3 of the Criminal Code of Kazakhstan by an official who performs managerial functions in a commercial or other organization [5; 22, 23]. Such a person is recognized as a person permanently, temporarily or by special authority performing organizational, administrative or administrative duties in an organization that is not a state body, a local government body or an organization whose state share is more than fifty percent [6].

It is necessary to delineate the criminal actions of officials of commercial and other non-profit organizations from the actions of officials authorized to perform state functions, or an equivalent person, or an official or a person holding a responsible public office, if it is associated with the use of his official position. The acts of such persons are corrupt crimes [7].

Mainly in the sphere of housing construction, for the purpose of stealing money, the guilty people use deception. Scammers when concluding civil-law transactions to attract money holders interest holders carefully disguise their criminal intentions. They deliberately hide from citizens that the basis of the concluded contract is a pure scam or the money of co-investors through another fraudulent scheme will not be used for the intended purpose.

The false or unspoken information reported for fraud may concern legal facts and events, the quality, the value of the property, the identity of the perpetrator, its actual intentions, powers and other circumstances that may deceive the victim. As a rule, the investor or an authorized company interested in acquiring a housing interest can be provided with the following unreliable or incomplete information about:

1) the name and legal address of the developer and the authorized company;

2) availability:

• – certificate confirming state registration (re-registration);
• – an agreement on the provision of a guarantee concluded with the Guarantee Fund and its basic conditions in the case of organizing equity participation in housing construction by obtaining a guarantee from the Guarantee Fund;
• – the permission of the local executive body to attract the money of the equity holders in the case of organizing equity participation in housing construction by participating in a second-tier bank project or by attracting the money of the equity holders after the construction of the frame of the residential building (residential building);
• – a document confirming the relevant right of the authorized company to the land property, etc.;

1. implemented by the developer projects for the construction of residential buildings (residential buildings);
2. the object of construction of a residential house (residential building), proposed for construction, which includes:

• – notification of the beginning of construction and installation works;
• – indication of the location and description of the facility in accordance with the design estimates;
• – information on the timing of its completion;
• – basic information about the contractor (general contractor), including the name, experience in this area, the availability of a license, information on the commissioned construction sites, where he acted as a contractor (general contractor) [8].

Often unscrupulous developers and authorized companies deceive investors without having:

• – state construction license for construction and installation works;
• – licenses for activities related to the organization of construction of residential buildings due to the attraction of co-investors' money or, to date, permits to attract money from co-investors, issued by local executive bodies;
• – a land property belonging to the right of temporary paid land use (rent) granted by the state, or on the property right;
• – experience of the realized objects of construction of apartment houses;
• – approved draft design;
• – design of documentation of the construction site, etc. [8].

Prevention is one of the important directions of the activity of the internal affairs that bodies in crime prevention in the sphere of housing construction. It is important to protect the potential victim in advance. In this direction, a positive effect is achieved through outreach work of internal affairs officials among the population. As illustrative examples, it is necessary to cite facts about persons directly affected by criminal actions in the market of housing under construction.

In the process of pre-trial investigation of criminal offenses of the category in question, it is necessary to establish what exactly the deception of the victim was, if that was the case, since the process of establishing the qualification of a wrongful act is closely correlated with the problem of delimiting adjacent offenses from criminal offenses. It should be borne in mind that the criminal intent of the suspects must correspond to the method of committing the wrongful act. Disagreements in these circumstances can directly affect the qualification of the committed act. To this end, the investigative authorities need to carefully analyze the process of construction and installation of residential buildings and premises, regulated by the state in the relevant regulatory acts. Consideration of this issue will allow answering the question of the method of committing an illegal act.

It is advisable to consider the algorithm of actions necessary for the person to carry out the activity intended to erect a residential structure. A developer is required to obtain a resolution in the Akimat on permission to conduct a survey work and design of facilities for industrial and civil purposes. After that, an agreement is concluded on the conditions for the development of a land property for civil and industrial construction between the authorized body (Akimat) and the company-developer. The signing of this contract completes the design procedure. Next, the developer must prepare a preliminary and working design of the erected building. In the presence of these documents, a state examination of the working draft is carried out. In case of positive conclusions of this examination, the Akimat issues a permit to conduct preparatory work. The scope of the preparatory works includes the erection of the fencing structures of the land property, where construction of a residential structure and the demolition of existing buildings on a given land property not envisaged by the plan. When the circumstances described above are fulfilled and the circumstances are available, the local executive body issues a resolution on the granting of a land plot, the designated purpose of which, for example, the construction of a residential building (complex) or others. Only then the developer can begin the erection of a residential structure.

In the absence of one of the listed items, the pre-trial investigation body can reasonably raise the issue of the developer's good faith. Analysis of law enforcement practice allows us to conclude that an unscrupulous developer often violates the requirements of regulatory legal acts governing the process of construction of housing facilities. This is expressed in the non-compliance with the issuance of permits for the issuance of permits, which subsequently leads to the beginning of construction work in the absence of a number of necessary documents. The beginning of premature construction allows the unscrupulous developer to accumulate investments from outside in the form of attracting potential investors to the construction process and collecting money from the latter. These circumstances, the bodies of pre-trial investigation can be interpreted as the presence of mercenary intentions from the developer, aimed at capturing the material values of citizens.

Many examples from law enforcement practice testify to the facts of the realization of housing facilities by means of concluding contracts for the full or preliminary purchase and sale of apartments in houses that have not been commissioned, not to speak of unfinished buildings in general. Such actions on the part of developers to the investigative bodies should be regarded as the acquisition of money (or other material resources) of citizens - co-investors by deception and abuse of trust. The very fact of realizing a real estate object that has not been put into operation is illegal, because in accordance with the current real estate legislation, the latter acquires the legal status of real estate only after the appropriate registration with the state body. Based on the results of state registration with residential real estate, it is possible to conduct alienation of ownership rights (possession, use or disposal). Hiding information from the victims that are relevant to the subject matter of the treaty or that may affect the decision of the victim, with the aim of capturing the funds of the latter, should qualify as fraud. In addition, the developer is certainly aware of the impossibility of putting into operation the object under construction due to the lack of a number of documents at the stage of commencement of construction work. Consequently, the construction was started illegally and state bodies are not entitled to issue an act on the acceptance of the erected building. The above listed, indicates the existence of criminal intent on the developer.

Having carried out a theoretical analysis of issues related to combating crime in the field of shared housing construction, it can be concluded that the most common problems in the field of housing construction criminal offenses directly correlate with the complexity of their criminal procedure investigation.

The questions considered in this article allowed us to formulate the following theoretical and practical conclusions:

• – the established opinion that the construction organizations carry out their activities in violation of the provisions of the Law of the Republic of Kazakhstan «On Shared Participation in Housing Construction» of April 7, 2016, does not find its due confirmation. This is due to the fact that construction organizations are not guided by the above-mentioned law and prefers to carry out their activities and sell housing in the market of real estate under construction in various forms, for example, a housing cooperative and others regulated and permitted by existing civil and housing legislation. At the same time, there is a share agreement, a preliminary contract for the sale of an apartment, an investment agreement, etc;
• – pre-trial investigation of criminal cases in housing construction requires additional application of criminal law provisions on criminal offenses in the sphere of economic activity and criminal offenses against the interests of service in commercial and other organizations, in view of their systemic nature and interindustry interaction with regulatory provisions regulating the housing construction market;
• – pre-trial investigation is not carried out in full. The bodies of preliminary investigation are limited to the following investigative actions: inspection of the scene, seizure, interrogation of suspects, victims and witnesses; confrontation between victims and suspects, appointment of economic and construction expertise. At the same time, there is no special tactic of interrogation of persons participating in pre-trial investigation of this category of criminal cases. In addition, it seems necessary, based on each specific case, to apply other investigative actions and expertise;
• – Withdrawal of accounting documents assumes their subsequent study and analysis in order to identify existing violations. To do this, the employees of the investigative units should have the appropriate knowledge in the field of accounting, which can be purchased and filled up by organizing training courses in this direction.

The other reasons and conditions conducive to their fulfillment were distributed in the following percentages:

• – imperfection of the current legislation - 18.4 %;
• – corruption of employees who are obliged to exercise control in the sphere of housing construction - 17.4 %;
• – the presence of legally illiterate citizens - 17.4 %;
• – lack of architectural and construction supervision, technical and author supervision - 13.5 %;
• – poor-quality production of construction and installation works - 6.7 %;
• – absence of licensing of subjects of architectural, town-planning and construction activity and attestation of specialists - 6.7 %;
• – violation of the organization of delivery and acceptance of completed facilities into operation - 6.7 %;
• – instability of the economy - 5.8 %;
• – failure to comply with the safety requirements established by technical regulations and existing normative documents on standardization for construction products - 5.8 %;
• – lack of expertise of justification of investment in construction and design (design and estimate) documentation - 5.8 %;
• – imperfection of engineering and construction technology - 2.9 %;
• – incorrect determination of soil condition - 2.9 %;
• – not carrying out the certification of objects in seismically dangerous regions - 1.94 %;
• – lack of survey and observation of the condition of exploited or conserved and other unfinished construction projects, interference with the purpose of ensuring regulatory performance - 1.94 %;
• – lack of certification and accreditation of testing and analytical laboratories, certification of products used in construction, as well as technical assessment of new products, production methods, equipment in construction - 1.9 %;
• – violation of standardization of products used in design and construction - 0.9 %;
• – violation of metrological activity in design and construction - 0,9 % [9].

Among the above reasons and conditions for the commission of unlawful acts in the field of shared housing construction, in our opinion, should also be attributed:

• – performance of work at construction sites not registered in the established order by construction teams (in this case it is a question of using so-called «illegal immigrants» in construction work - construction teams that do not have official status and, in most cases, construction specialists of the corresponding profile);
• – the availability of opportunities for developers and project companies to avoid paying taxes by concluding fictitious contracts with firms registered with front men;
• – overstatement of the cost of works performed by the contractor organization.

The list of reasons and conditions that facilitate the commission of crimes in the housing construction market is certainly not exhaustive. At the same time, identifying, eliminating, weakening and neutralization by the subjects of prevention of the above-mentioned obvious determinants will help to prevent social tensions among defrauded co-investors and ensure the achievement of positive results in counteracting contemporary crime in the field of shared housing construction.

The following circumstances may indicate the presence of a criminal intent in a fraud suspect:

• – thorough and advance preparation for the crime (registration of the firm for front men-nominal, low- income, abusers of alcohol or drugs);
• – not having a license to carry out activities aimed at fulfilling obligations under the contract;
• – a real lack of financial resources, material and technical means;
• – excessively favorable construction conditions (short terms, low cost per square meter, the use of high- quality at the same time, expensive building materials);
• – lack of necessary specialists for construction and installation works;
• – not complete design and estimate documentation;
• – conclusion of contracts on behalf of dummy or fictitious persons;
• – use of fictitious statutory documents, etc.

At the same time, the results of the conducted research cannot be exhaustive, since the practical materials that were given at our disposal were not provided in full and were not sufficient to conduct an appropriate scientific analysis. The indictments provided, the verdict of the court are final documents, in which the process of investigating crimes is not reflected, respectively, to see the problems associated with the qualification of crimes, the collection of evidence, the definition of the main circumstances to be proved, the derivation of typical and alternative algorithms of investigative actions, order and tactics their implementation is not possible.

References

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