Comment to Article 327. Arbitrariness of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Arbitrariness, that is, unauthorized, contrary to the procedure established by law, the exercise of one's actual or alleged right, disputed by another person or organization, which has caused significant harm to the rights or legitimate interests of citizens or organizations or the legally protected interests of society or the state, —
is punishable by a fine in the amount of two hundred to one thousand monthly calculation indices or in the amount of the convicted person's salary or other income for a period of two to ten months, or by community service for a period of one hundred and eighty to two hundred and forty hours, or by correctional labor for a period of one to two years, or by arrest for a period of from three to six months.
2. The same act committed with the use of violence or with the threat of its use, —
is punishable by restriction of liberty for a term of up to three years or imprisonment for a term of up to five years.
3. The acts provided for in the first or second parts of this Article, committed by a group of persons by prior agreement or entailing grave consequences, —
are punishable by imprisonment for a term of two to seven years.
The object of the crime is the management procedure. The legal rights and interests of citizens and legal entities act as an additional object.
From the objective side, the crime is characterized by a number of signs: an act in the form of unauthorized, contrary to the procedure established by law for exercising one's actual or alleged right; the legality of which is disputed by another person or organization if significant harm has been caused by such actions.
Arbitrariness is defined as the commission of actions aimed at exercising one's right, in addition to the established procedure, that is, not in the manner prescribed by law.
A valid right is a right legally owned by a person, but which he exercised without observing the procedure established for this.
An assumed right is a right that does not actually legally belong to a person, but which he relies on, mistakenly considering it to be his legitimate one.
A crime is committed only through actions. These actions can be expressed both in the exercise of their rights and in the performance of their legal duties. Both are implemented on their own. The legality of these actions is disputed by the organization or the citizen. A challenge is possible before, during, or after such actions, as they are not legal in nature.
If the rights and obligations are exercised arbitrarily, but their legality is not disputed by anyone, there is no corpus delicti. Similarly, it is absent when actions are disputed by someone, but the exercise of rights and duties is carried out in accordance with current legislation.
A challenge should be understood as an announcement in one form or another by an interested person (organization) of a violation of their (someone else's) actual or alleged right by an arbitrary act (an application or complaint filed with a court, prosecutor's office, Department of Internal Affairs or other body designed to protect the applicant's rights and other established forms of declaring their rights).
The act is completed when significant harm is caused to a citizen or an organization as a result of unauthorized actions.
The infliction of significant harm is an estimated category established by the investigating authorities, taking into account the actual circumstances of the crime committed. This harm can be caused to both individuals and legal entities. At the same time, it is possible to challenge the legality of the actions of the perpetrator in favor of third parties.
By the nature of the criminal consequences, property damage may be recognized as significant in the form of direct real damage or lost profits, violation of the legitimate rights and interests of citizens, or if the actions of the perpetrator caused significant harm to the rights or legitimate interests of citizens or organizations, or the legally protected interests of society or the state, resulting in significant material damage, violation of the constitutional rights of citizens freedom of movement, use of living space, etc.
The subjective side of the crime is characterized by direct or indirect intent, i.e. an intentional form of guilt. The perpetrator is aware that he is voluntarily, contrary to the established procedure, committing actions, the legality of which is disputed, anticipates that he is causing significant harm, and wants to cause it (direct intent) or consciously allows it or is indifferent to the possibility of its occurrence (indirect intent).
The subject of the crime is a sane individual who has reached the age of 16. This is what distinguishes the subject of this crime from similar crimes, where the subject is persons authorized to perform state functions, or persons equated to them using their official powers (Articles 307, 308, 309, 228 of the Criminal Code).
A qualifying type of arbitrariness is its commission with the use of violence or with the threat of its use (Part 2). Violence in this case should be understood as any physical violence that does not cause serious harm to human health. Intentional infliction of moderate harm to health, minor harm to health, beatings, and torture are covered by the disposition of Part 2 of Article 327 of the Criminal Code and do not require additional qualifications. The threat of violence should be understood as the threat of murder or causing serious harm to health, as well as causing mild and moderate harm to health.
Part 3 of Article 327 of the Criminal Code of the Republic of Kazakhstan establishes responsibility for acts provided for in parts 1 and 2 of this Article, committed by a group of persons by prior agreement, or entailing grave consequences.
Arbitrariness committed by a group of persons by prior agreement is imputed if:
a) two or more persons participated in the commission of the crime;
b) each of them physically committed acts that form the objective side of the crime;
c) they acted jointly, that is, they committed unauthorized acts contrary to the procedure established by law at the same time.
Grave consequences should be understood as causing serious harm to the victim's health, causing death by negligence. If serious harm is caused in the process of arbitrariness under aggravating circumstances or premeditated murder, the actions of the perpetrator should be qualified according to the totality of crimes of Articles 327 and 96, 103 (Part 2.3) of the Criminal Code.
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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