Comment to Article 4. The effect of the criminal law in time of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
The criminality and punishability of an act are determined by the law in force at the time of the commission of this act. The time of commission of a crime is the time when a socially dangerous act (inaction) is performed, regardless of the time when the consequences occur.
The criminal law is valid for a certain time, in a certain territory and in relation to a certain circle of people. Therefore, it is important for proper criminal law regulation, the implementation of the tasks of criminal law and compliance with its principles to accurately establish the boundaries of the criminal law in time and space.
The effect of the criminal law in time is regulated by art. 4 of the Criminal Code of the Republic of Kazakhstan, which establishes that the criminality and punishability of an act is determined by the law in force at the time of the commission of this act. The time of commission of a crime is the time when a socially dangerous act (inaction) is performed, regardless of the time when the consequences occur. At the same time, it should be borne in mind that the commission of a crime is understood as the implementation not only of a completed crime, but also of preliminary criminal activity.
The procedure for the publication and entry into force of the law is defined by the Law of the Republic of Kazakhstan dated March 24, 1998 "On Regulatory Legal Acts". In accordance with it, the laws of the Republic of Kazakhstan, decrees of the President of the Republic of Kazakhstan are put into effect after ten calendar days after their first official publication, unless otherwise specified in the acts themselves or the acts on their entry into force, and Resolutions of the Parliament of the Republic of Kazakhstan, its chambers - from the date of the first official publication, if the acts do not specify other terms (art. 36).
According to Article 30 of the said law: "1. All laws and international treaties to which the Republic of Kazakhstan is a party are published. The official interpretation of normative legal acts concerning the rights, freedoms and duties of citizens is a prerequisite for their application. The official publications are the Gazette of the Parliament of the Republic of Kazakhstan and the Collections of Acts of the President of the Republic of Kazakhstan and the Government.
2. The official publication of regulatory legal acts is also carried out periodically by printed publications that have received such a right on a competitive basis, in accordance with the procedure determined by the Government of the Republic of Kazakhstan. Legislative acts of the Republic of Kazakhstan are officially published in the Gazette of the Parliament of the Republic of Kazakhstan, as well as in other printed publications in the manner prescribed by art.30 of the Law "On Regulatory Legal Acts". The procedure for the enactment of a regulatory legal act may be determined by the regulatory legal act itself.
The procedure for the enactment of laws, including codes, is determined in the laws (codes) themselves or by separate laws. According to art . 41 of the above-mentioned law, the normative legal acts of the Republic of Kazakhstan adopted by the President of the Republic of Kazakhstan, the Parliament of the Republic of Kazakhstan, extend their effect to the entire territory of the Republic of Kazakhstan, unless otherwise specified in the normative legal acts themselves or the acts on their enactment. Regulatory legal acts adopted by local representative and executive bodies are valid in the relevant territory.
Various points of view have been expressed in the legal literature on the question of what should be considered the time of the commission of a crime. Some authors considered the time of commission to be the time of socially dangerous actions. According to others, it is the time of the onset of consequences. The Criminal Code of the Republic of Kazakhstan put an end to these disputes, stating in Article 4 of the Criminal Code that: "The time of commission of a crime is recognized as the time of a socially dangerous act (inaction), regardless of the time of the onset of consequences." For the sake of fairness, it should be said that scientific disputes on this issue have not stopped even after the adoption of the Criminal Code of the Republic of Kazakhstan. However, law enforcement practice should proceed from the provision that has been consolidated in the law. The legal basis for such a decision is that the perpetrator's subjective attitude to his actions is related to the law that existed at the time of the commission of the crime. Such a legislative solution to the issue of the time of the commission of a crime means that in a situation where the act was committed during the operation of the old law, and the consequences of this act, which are a necessary sign of the composition of the crime, occurred during the operation of the new law, the old law should be applied, provided that the old law is less strict in relation to the person who committed the crime than the new one). This rule applies to all crimes, regardless of their design. This rule also applies to ongoing and ongoing crimes. The criminal law in force at the time of the commission of the last of the unmarked acts, which together form the corpus delicti, applies to ongoing crimes. Continuing crimes are subject to the criminal law in force at the time of the voluntary termination of the crime by the perpetrator himself or its suppression by law enforcement agencies.
The legal literature ambiguously addresses the issue of the time of the commission of a crime by accomplices - the organizer, the instigator and the accomplice. This issue is not regulated in the criminal legislation either. There is an opinion that for the organizer, instigator and accomplice, the moment of committing a crime is determined by the behavior of the perpetrator. A.I. Boytsov believes that "the action of each individual accomplice should be assessed from the perspective of the law that was in force at the time of their commission. One can agree with this position, except in cases where the consciousness of the accomplices covers the fact that the actions of the perpetrator will be committed at the moment when a stricter law comes into force.
The position of the legislator of the Republic of Lithuania is interesting in this regard. When defining the time of the commission of a crime, the time of action or inaction, the legislator of this republic specifies in Article 7 that if the perpetrator wished the consequences to occur at another time, "the time of the commission of a crime is the time of the manifestation of consequences." In my opinion, based on such principles of criminal law as personal and culpable responsibility, it can be concluded that the moment of committing a crime for each accomplice should be determined by the moment of the end of his own actions (inactions). Therefore, if the crime was expressed in organizational activity, incitement or complicity, then it is considered to have been committed at the time of the execution of the relevant actions (omissions) by each accomplice, regardless of when the crime was committed by the perpetrator, except in cases, as noted above, when the consciousness of the accomplice covers that the actions of the perpetrator will be committed at the time when A stricter law will come into force.
And one last thing. The current criminal law becomes invalid as a result of one of the following conditions::
1) Repeal of the law;
2) its replacement by another law;
3) the expiration of the law, if it was established by the legislator;
4) the disappearance of special conditions and circumstances that caused its publication. An analysis of judicial and investigative practice shows that sometimes a situation arises when a crime was committed during the operation of the old law, and the investigation and consideration of the case of this crime is carried out already during the operation of the new law. In this regard, the question arises: according to what law should a crime be qualified? Because according to art . 4 of the Criminal Code of the Republic of Kazakhstan, the criminality and punishability of an act are determined by the law in force at the time of the commission of this act, crimes committed before the entry into force of the new law must be qualified under the old law, even if the investigation or consideration in court was carried out already during the operation of the new law. In this case, the criminal law of the time of the commission of the crime applies to an act that was committed before the entry into force of the new law, although it is no longer in force, repealed by the new law. Such an action of the old law is called experiencing the old, repealed law.
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.S.
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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