Comment to article 135. Disclosure of the secret of adoption of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     Disclosure of the secret of adoption against the will of the adoptive parent, committed by a person who is obliged to keep the fact of adoption as an official or professional secret, or by another person for selfish or other base motives, —      

is punishable by a fine in the amount of one hundred to two hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of one to two months, or correctional labor for up to two years, or arrest for up to six months with deprivation of the right to hold certain positions or engage in certain activities for up to three years or without one.

     The social danger of a crime is expressed in causing suffering to a minor, which can lead to the departure of a teenager from the family, conflicts between the minor and his adoptive parent, and sometimes suicide.      

The object of the crime is the interests of the family and the child, their normal physical, mental and moral development.      

The objective side consists in communicating the fact of adoption, made orally or in writing to any person (including the adopted one) without the consent of the adoptive parents.      

According to paragraph 1 of the resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan "On certain issues of application by courts of legislation on marriage and family in cases of adoption of children" dated December 22, 2000, the adoption legislation is based on The Constitution of the Republic of Kazakhstan, The Convention on the Rights of the Child of November 20, 1989, to which the Republic of Kazakhstan joined in 1994 and consists of the Law of the Republic of Kazakhstan "On Marriage and Family", other laws and regulations.      

In particular, the registration procedure for persons wishing to adopt children subject to adoption is provided for by the Rules for Organizing Centralized Registration of Children left without Parental Care and the Regulations on Guardianship and Guardianship Authorities of the Republic of Kazakhstan, approved by the Decree of the Government of the Republic of Kazakhstan dated September 9, 1999.,

The Rules on registration of foreign citizens wishing to adopt children who are citizens of the Republic of Kazakhstan, approved by the Order of the Minister of Foreign Affairs of the Republic of Kazakhstan dated June 17, 1999.      

The Decree of the Government of the Republic of Kazakhstan dated June 24, 1999 approved the list of diseases in which a person cannot adopt a child.      

Based on the specifics of cases in this category (Article 150 of the Civil Procedure Code of the Republic of Kazakhstan), the court must verify that the application contains information about the adoptive parents themselves, the children they wish to adopt, their parents, requests for possible changes to the birth certificates of the children being adopted, the circumstances with which the law relates the possibility of being an adoptive parent, and supporting evidence., as well as the presence of the following necessary documents in the annex to the application:      

- the conclusion of the guardianship and guardianship authority at the place of residence (location) of the child on the validity and compliance of the adoption with the interests of the adoptee;      

- the act of examining the living conditions of the adoptive parents;      

- a copy of the child's birth certificate and birth certificate;      

- the medical report of the competent authority on the state of health, physical and mental development of the adoptee;      

- parental consent for the adoption of a child, if required by law;      

- the child's consent to adoption if the child has reached the age of 10;      

- evidence confirming that the applicant may be the adoptive parent of the child.      

If it is impossible for the applicant to obtain these documents, they must be requested by the court from the relevant authorities at the request of the applicant. The application must be signed personally by the adoptive parent, and it is unacceptable for anyone to submit the application in the interests of the adoptive parents.      

Adoption is one of the important institutions aimed at strengthening the family and protecting the interests of the child. Judges who have made a decision on the adoption of a child, or officials who carry out state registration of an adoption, as well as persons who are otherwise aware of the adoption, are required to keep the child's adoption secret. Article 91 of Chapter 12 of the Law of the Republic of Kazakhstan "On Marriage and Family" dated December 17, 1998 provides for the adoption of a child. In cases of disclosure of the secret of adoption, these persons are held accountable under Article 135 of the Criminal Code.      

The will of the adoptive parent should be understood as the will of the adoptive spouses together and individually. The will of one of the spouses not to disclose the secret of adoption precludes the possibility of disclosing the secret of adoption. Therefore, disclosure of the secret of adoption presupposes criminal liability in this case.      

Current legislation of the Republic of Kazakhstan (the Law of the Republic of Kazakhstan "On Marriage and Family") The conditions, procedure, and legal consequences of adoption are regulated in sufficient detail, as well as the grounds and procedure for terminating adoption, which makes it possible to ensure the rights and interests of both the child and those wishing to adopt him.      

The composition of the analyzed crime is formal, the crime is considered completed from the moment of the commission of the actions specified in art. 135 of the Criminal Code.      

The subject of a crime is a person who is obliged to keep the fact of adoption as an official or professional secret, as well as any other person who meets the requirements of a common subject, acting out of selfish or other base motives.      

On the subjective side, a crime can be committed with direct intent when the perpetrator is aware of the fact that the secret of adoption has been disclosed and wishes to disclose this secret.

The motive is selfish or base motives. 135 of the Criminal Code is necessary when disclosure is carried out by a person who is not obliged to keep the fact of adoption as an official or professional secret.

Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.                  

Date of amendment of the act:  08/02/2007 Date of adoption of the act:  08/02/2007 Place of acceptance:  NO Authority that adopted the act: 180000000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  167 Status of the act:  new Sphere of legal relations:  028000000000 Report form:  COMM Legal force:  1900 Language of the Act:  rus

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