Comment to Article 136. Malicious evasion of payment of funds for the maintenance of children or disabled parents of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Malicious evasion of a parent for more than three months from paying funds for the maintenance of minor children, as well as disabled children who have reached the age of eighteen., —      

is punishable by a fine in the amount of two hundred to five hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of two to five months, or by community service for a term of one hundred and twenty to one hundred and eighty hours, or by correctional labor for a term of up to two years, or by restriction of liberty for a term of up to two years, or by arrest for up to six months, or by imprisonment for up to two years.    

2. Malicious evasion of an adult able-bodied person for more than three months from paying funds for the maintenance of his disabled parent by a court decision. —      

is punishable by a fine in the amount of two hundred to five hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of two to five months, or by community service for a period of one hundred and twenty to one hundred and eighty hours, or by correctional labor for a term of up to two years, or by restriction of liberty for a term of up to two years, or by arrest for up to six months, or by imprisonment for up to two years.

     Criminal liability for malicious evasion of alimony payments is established only when regulating the alimony obligations of parents and children.      

The public danger of a crime is that parents or children who are unable to work are left without financial assistance or care from those who are legally required to provide assistance.      

The object of the crime is the health and normal development of children, allowing them to grow and develop in decent conditions. The victims, according to Part 1 of Article 136 of the Criminal Code, may be minors, firstly, children who, by court decision, have the right to receive funds from their (their) parents; secondly, disabled children who have reached the age of eighteen, to whom parents are required to pay funds by court decision.      

The objective side of the crime in question is expressed in both action and inaction.      

According to According to the Law of the Republic of Kazakhstan "On Marriage and Family" dated December 17, 1998, marriage is an equal union between a man and a woman, concluded with the free and full consent of the parties in accordance with the procedure established by law, with the aim of creating a family, generating property and personal non–property relations between the spouses.;      

Family is a circle of persons connected by property and personal non–property rights and obligations arising from marriage, kinship, adoption or other form of adoption of children and recognized to contribute to the strengthening and development of family relations.;      

Alimony – maintenance that one person is obliged to provide to another person who has the right to receive it; Close relatives – parents, children, adoptive parents, adopted children, full and half-siblings, grandfather, grandmother, grandchildren;      

Guardian (trustee) is a person appointed in accordance with the procedure established by law to perform guardianship and trusteeship functions.;      

Guardianship is a legal form of protection of the rights and interests of minors and persons recognized by the court as legally incompetent (with limited legal capacity).      

Article 124 of the Law of the Republic of Kazakhstan "On Marriage and Family" dated December 17, 1998 refers to the responsibilities of parents for the maintenance of minor children, and Article 129 refers to the right to receive alimony for disabled minor children.      

The avoidance of parents from paying funds for the maintenance of children should be understood not only as a direct refusal to pay child support, but also as a concealment of a person's actual earnings, a change of job or place of residence in order to avoid withholding on a writ of execution. It should be noted that malicious evasion of alimony payments is recognized in cases where a person has not provided assistance in child care for 3 months or more without valid reasons and his behavior indicates an unwillingness to comply with a court decision that has entered into force. In accordance with the Law of the Republic of Kazakhstan "On Marriage and Family" dated December 17, 1998, alimony is collected by a court decision and on the basis of an agreement on the payment of alimony, which, after notarization, has the force of a writ of execution.     

The crime in question is a continuing one. It is considered completed from the moment of the commission of the actions specified in the law and continues at the stage of the completed crime until an action is performed that stops malicious evasion from paying alimony (surrender, detection of a person hiding from paying alimony, and other cases), or until the occurrence of events that terminate the person's obligation to pay alimony (death a child for whose maintenance alimony was collected, or when the child reaches the age of majority). Responsibility under Part 1 of art. 136 of the Criminal Code is possible only if there is a court decision that has entered into force or a judge's order to recover funds for the maintenance of a child.      

Only parents and adoptive parents can be the subject of a crime. It should be noted that the perpetrator will be liable under Part 1 of Article 136 of the Criminal Code only if he has a real opportunity to pay alimony. For example, disability excludes the responsibility of parents and adoptive parents. According to Part 1 of Article 136 of the Criminal Code, guardians, trustees, as well as persons to whom the court has imposed the duty of raising children are not subjects of this crime.      

The subjective side of this crime is characterized by direct intent and a selfish motive.      

Article 131 of the Law of the Republic of Kazakhstan "On Marriage and Family" regulates the duty of adult children to support their parents. The criminal law guarantor of this provision is Part 2 of Article 136 of the Criminal Code, which establishes responsibility for the malicious evasion of able-bodied children who have reached the age of 18 from paying funds for the maintenance of disabled parents by court order. The conditions for criminal liability under Part 2 of Article 136 of the Criminal Code are similar to those provided for in Part 1 of the article in question.

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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