Comment to Article 9. The concept of crime of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. A crime is a culpably socially dangerous act (action or omission) prohibited by this Code under threat of punishment. The application of the criminal law by analogy is not allowed.
2. An act or omission, although formally containing the signs of an act provided for in the Special Part of this Code, but because of its insignificance does not pose a public danger, that is, it has not caused harm or created a threat of harm to an individual, society or the state, is not a crime. The first part of Article 9 of the Criminal Code of the Republic of Kazakhstan recognizes as a crime a culpably socially dangerous act (action or omission) prohibited by this Code under threat of punishment.
The legislative definition of a crime given in art. 9 of the Criminal Code of the Republic of Kazakhstan is formally material because it provides for both a formal (normative) feature (prohibition of an act by criminal law, and a material feature (public danger of the act), revealing the social essence of the crime.
From this definition it can be seen that the crime is characterized by a number of mandatory features. These include: public danger, acts, their illegality, guilt and punishability.
All four attributes are equivalent. The absence of any of them indicates the absence of a crime as a whole.
A crime is understood only as an act, i.e. human behavior expressed in a certain objective form - an active act or passive inaction. Neither thoughts nor intentions that have not found their outward expression, have not been embodied in an act, can be recognized as a crime. Even in the Digests of Justinian, there was a provision of Roman law: no one is punished for thoughts (cogitationis poenam nemo patilur). This principle also underlies Kazakh law, emphasizing that criminal liability can only be based on criminal behavior expressed in a specific act, and not on antisocial personality traits, thoughts and beliefs. At the same time, an act cannot be excluded from the spoken word, since a number of "verbal" acts are recognized as criminal. So, for example, in accordance with art. 112 of the Criminal Code, the threat of murder or serious injury to health, as well as other serious violence against a person or destruction of property by arson, explosion or other generally dangerous means, if there are sufficient grounds to fear that this threat will be carried out, constitutes a criminally punishable act. However, this kind of behavior is aimed at causing harm prohibited by criminal law, such as harm to health and personal property rights. Therefore, objectification of one's thoughts, for example, expressing to a friend the intention to take a person's life and threatening life, are different types of behavior.
Psychologically, every human act, action or inaction, is motivated (greed, jealousy, etc.) and purposeful, anticipating the results of one's behavior. Motivation and purposefulness of behavior ensure a person's free will, i.e. freedom to choose between at least two behaviors. In criminal behavior, a person chooses between antisocial and legitimate, at least unapproachable behavior.
Due to the lack of motivation and purposefulness, reflex actions committed in delirium, unconsciously or due to the influence of force majeure, are not psychological behavior, and even more so in the criminal law sense. Thus, Citizen N., who slipped on a banana peel and knocked the victim under a tram, cannot be held criminally responsible. Because he performed actions: his body movement was reflexive, unconscious. There is also a lack of freedom of choice, and consequently, behavior in an environment of force majeure - natural emergencies (earthquake, river floods, forest fires) or created by humans (accidents, wrecks, imprisonment). Thus, failure to provide assistance to a patient by a doctor who, due to an ambulance accident, could not arrive at the patient in time is not an act.
The influence of force majeure as a circumstance in which there is no volitional behavior as independent norms are fixed in the Criminal Code of individual countries. Thus, Article 13 of the Criminal Code of China states: "Acts that objectively led to harmful consequences, but are not the result of intentional or careless guilt, but are caused by force majeure or the inability to foresee them, are not recognized as criminal."
There is no freedom of choice for a person subjected to physical coercion. Part 1 of Article 36 of the Criminal Code states: "It is not a crime to harm the interests protected by this Code as a result of a physical crime if, as a result of such coercion, the person could not direct his actions (inaction).
Inaction, as opposed to action, requires additional signs, namely, the obligation to act and the actual ability to act so. What should be understood by inaction is defined by some States in the criminal codes themselves. For example, the 11th Criminal Code of the Federal Republic of Germany recognizes a person to be punished "only when he was legally obliged to prevent the occurrence of consequences, and if inaction corresponds to the fulfillment of the corpus delicti by action."
Public danger is a material sign of a crime, expressing the social essence of this legal concept. Public danger is expressed in causing or threatening damage to the interests protected by the Criminal Code. It is he who explains why this or that act was classified as criminally punishable. This is an objective property of a crime that does not depend on the will of the legislator.
Public danger as a material sign of a crime has qualitative and quantitative characteristics. The qualitative characteristic of public danger in the legal literature is called the nature of public danger. It means a typical characteristic of the social harmfulness of certain types of crimes (robbery, hooliganism, terrorism, etc.)
The nature of the public danger is determined by the importance of the interests and public relations that are being infringed upon, the nature of the harm caused, and sometimes the method of encroachment. Thus, attacks on human health are characterized by one typical public, property relations by another, the interests of justice by a third, etc. At the same time, the nature of public danger is characterized by various ways of encroaching on the same object of crime (for example, theft of other people's property committed by theft, robbery and robbery and its intentional destruction). A quantitative indicator of public danger is referred to in the legal literature as its degree.
The nature of the public danger of a crime depends on the object of the encroachment established by the court, the form of guilt and the attribution of the criminal act to the appropriate category by the Criminal Code. In accordance with the explanation of the Plenum of the Supreme Court of the Republic of Kazakhstan dated April 30, 1999. "On the observance by courts of legality in the imposition of criminal punishment" when determining the degree of public danger of a committed crime, courts should proceed both from the requirements of Article 10 of the Criminal Code, which regulates the procedure for determining the severity of crimes, but from the totality of all the circumstances in which a specific criminal act was committed (form of guilt, motives, method of circumstances and stage of commission of the crime, severity the consequences that have occurred, the degree and nature of participation in the commission of the crime of each of the defendants, etc.).
It is therefore determined by the severity of the consequences caused, the method of committing a crime if it inherently changes the social characteristic of the act (for example, murder committed in a way dangerous to the lives of many people - paragraph "e" of Article 96, Part 2 of the Criminal Code), the form of guilt (if the crime can be committed either intentionally or by negligence), the content of motives and goals, etc. Public danger is taken into account by the legislator when deciding whether to criminalize or decriminalize an act. Criminal liability for certain acts is established only if they are objectively socially dangerous. However, it should be borne in mind that the establishment of a prohibition by a legislator in a criminal law does not mean that a specific action or omission that falls under the criteria of an act specified in the law is always criminal. It is important to establish that the alleged act is socially dangerous.
For a more accurate understanding of the sign of public danger, it is necessary to understand the meaning of Part 2 of Article 9 of the Criminal Code, which states: "An act or omission is not a crime, although it formally contains signs of an act provided for in a Special Part, but because of its insignificance it does not pose a public danger, i.e. it has not caused harm or created a threat of harm to the individual, society and the state." The following conclusions can be drawn from this definition: firstly, for the recognition of an act as a crime, its formal similarity to the criminal offense described in one or another norm of the special part of the Criminal Code is not enough. Even with this similarity, the acts may be considered insignificant (for example, the open theft of a pack of cigarettes), therefore not posing a public danger. The issue of recognizing an act as insignificant is within the competence of the court, the prosecutor, the investigator of the body of inquiry. If the act is found to be insignificant, then in accordance with the criminal procedure legislation, a criminal case on such an act should not be initiated, and the initiated case should be terminated due to the absence of corpus delicti in the act; secondly, an act recognized as insignificant and therefore not criminal may entail other legal liability: administrative, civil, disciplinary etc. Consequently, the indication of the law on the absence of public danger in such acts should be understood not in the sense of the absolute absence of public danger (as, for example, in case of necessary defense, extreme necessity), but in the sense that the public danger of acts recognized as insignificant does not reach the degree inherent in crimes.
For example, three fourteen-year-old teenagers were convicted of secret theft of other people's property committed by a group of persons by prior agreement (paragraph "a" of Part 2 of Article 175 of the Criminal Code of the Republic of Kazakhstan). They came to the suburban area and stole a bucket of tomatoes, with a total value of 650 tenge. In the case, it was established that minors stole tomatoes for an insignificant amount, since the minimum wage at the time of the crime was 719 tenge. The victim admitted in court that the tomatoes had been returned to her, she considered the damage insignificant and asked the teenagers not to be prosecuted. The Judicial Board of the Supreme Court of the Republic of Kazakhstan, having reviewed the case by way of supervision at the prosecutor's protest, overturned the verdict and the case was discontinued under Article 37 of the Criminal Procedure Code of the Republic of Kazakhstan, pointing out that the actions of minors, although formally they contain signs of a crime under paragraph "a" of Part 2 of Article 175 of the Criminal Code of the Republic of Kazakhstan, but due to their insignificance do not pose a public danger..
If the act does not contain a significant degree of public danger, then it cannot be considered a crime. The degree of public danger of acts recognized as crimes is higher than when committing administrative offenses. In my opinion, the inclusion in Part 2 of Article 9 of the Criminal Code of the Republic of Kazakhstan of such words "that is, without causing harm or creating a threat of harm to an individual, society or the state" is superfluous, does not correspond to the meaning and content of the law.
As can be seen from the above text of the law, in order to recognize a committed act as insignificant, the legislator requires that this "insignificant" act does not cause or create a threat of harm to the individual, society or the state. To what extent, from the point of view of legislative technique, is such an indication in the law correct? Whether an action or omission formally containing signs of an act is not a sufficient reason for not recognizing it as a crime... but due to its insignificance, it does not pose a public danger. The answer should be yes. That's the first thing. Secondly, is it even possible to talk about the existence of a crime if the committed act did not cause harm and did not create a threat of its infliction? The answer is unequivocal - no! Thirdly, it is well known that harm to an individual, society and the state can be caused not only as a result of committing a crime, but also by other unlawful acts, such as administrative misconduct. In this regard, an insignificant act, which, due to the absence of public danger, does not contain elements of a crime, may form part of another offense (administrative, civil law), and in this case, administrative or civil law measures may be applied to the person who committed it, which are not criminal penalties. In the light of the above, I would consider it advisable to exclude from Part 2 of Article 9 of the Criminal Code of the Republic of Kazakhstan the words "that is, it has not caused harm or created a threat of harm to an individual, society or the state."
The next sign of a crime is criminal wrongfulness. The meaning of this feature is determined by the fact that it acts as a legal form of expression of public danger. In the theory of criminal law, criminal unlawfulness is considered as a formal criterion that makes it possible to distinguish between crimes and non-criminal socially harmful acts. No matter how dangerous an act is that is not provided for by criminal law, it cannot be considered a crime. Criminal wrongfulness is a formal sign of a crime, which, in my opinion, cannot be considered in isolation from the public danger of the act.
Kuznetsova N.F. categorically opposes the term "formal" as it very inaccurately reflects the most important legal property of a crime -criminal unlawfulness. Instead, the term "legal" property of a criminal act should be used, especially since in Part 2 of Article 14 of the Criminal Code (Part 2 of Article 9 of the Criminal Code of the Republic of Kazakhstan) the legislator uses the word "formal" in its true sense as external, insignificant to characterize an insignificant act. The criminal illegality of an act is a subjective (at the legislative level) expression of the public danger of this act. This means that an act that is objectively intolerable to society due to its social danger to the established system of public relations is criminalized, i.e. it is directly prohibited by the norm of criminal law under threat of punishment. On the other hand, an act prohibited by criminal law, due to a change in the nature of public relations or for other reasons, may at a certain stage lose its danger to society to such an extent that there will be no need to combat this phenomenon by means of criminal law. In this case, the act is decriminalized, i.e. excluded from the Criminal Code. In the light of the above, we can say that both of these features are closely interrelated and interdependent.
Guilt. A socially dangerous act can be recognized as a crime only when it is committed guiltily. In accordance with Part 1 of Article 19 of the Criminal Code, "... a person is subject to criminal liability only for those socially dangerous acts (actions or omissions) and socially dangerous consequences that have occurred, in which his guilt has been established. Guilt (culpability) in the criminal law understanding means a certain mental attitude of a person towards a socially dangerous act (action or omission) committed by him and its socially dangerous consequences. Guilt manifests itself in one of the forms prescribed by law: in the form of intent (direct and indirect) or in the form of negligence (in the form of arrogance or negligence - Articles 19-22 of the Criminal Code of the Republic of Kazakhstan). No act, no matter what dangerous consequences it may cause, can be considered a crime if it is completely innocent (art. 23 of the Criminal Code of the Republic of Kazakhstan).
Criminality as a sign of a crime follows from the very definition of a crime. If an act is not punishable, it cannot be considered a crime. This provision is fixed in Part 2 of Article 2 of the Criminal Code of the Republic of Kazakhstan, according to which the Criminal Code establishes the types of punishments (and other criminal law measures) applied to persons who have committed a crime. In this regard, there is not a single article in the Criminal Code of the Republic of Kazakhstan that does not provide for sanctions.
Punishability is understood as a threat of punishment, and not as the actual actual application of punishment. The legislator does not set strict limits for law enforcement agencies and the court, so that the punishment provided for in the criminal law is mandatory and in all cases applied as the commission of a socially dangerous act. The criminal law allows for the possibility of releasing a person from criminal liability and punishment, for example, in connection with active repentance, exceeding the limits of necessary defense, or due to a change in the situation (Articles 65, 66, 68 of the Criminal Code of the Republic of Kazakhstan). And according to Article 67 of the Criminal Code of the Republic of Kazakhstan, a person who has committed a minor crime or has committed a moderate crime for the first time, which is not related to causing death or serious harm to human health, is subject to exemption from criminal liability if he met with the victim. However, this does not change the thesis of punishability, as are necessarily signs of a crime: punishment is not conceived without a crime and, therefore, can only be a consequence of a crime actually committed by a person.
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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