Commentary to article 12. The totality of crimes of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. The commission of two or more acts provided for in various articles or parts of an article of this Code, for none of which a person has been convicted or released from criminal liability on the grounds established by law, is recognized as a set of crimes. In the case of a combination of crimes, a person is criminally liable for each crime committed under the relevant article or part of the article of this Code, if the signs of the committed acts are not covered by the norm of one article or part of the article of this Code, providing for a more severe punishment.
2. One act (inaction) containing the signs of crimes provided for in two or more articles of this Code is also recognized as a set of crimes. In such a set of crimes, a person is criminally liable for each crime in accordance with the relevant articles of this Code, if the signs of one act are not covered by the norm of the article of this Code, which provides for a more severe punishment for another act.
3. If the same act falls under the signs of the general and special norms of the relevant articles of this Code, there is no combination of crimes, and criminal liability occurs under the article of the Special part of this Code, which contains a special norm.
In accordance with Part 1 of this article, "a set of crimes is the commission by one person of two or more crimes provided for in different articles or parts of an article of this Code, for none of which a person has been convicted or has not been released from criminal liability on the grounds established by law." The totality of crimes is characterized by three signs:
1) The commission of two or more crimes by a person.
2) Each of which is qualified by different articles or different parts of the article of the Criminal Code of the Republic of Kazakhstan, taking into account the intent to commit an independent crime.
3) A person should not be convicted of any of the crimes committed or should not have been released from criminal liability on the grounds established by law. There will also be a set of crimes in cases where a person commits homogeneous actions, some of which qualify as a completed crime, and others as preparation, attempt or complicity in a crime.
A set of crimes takes place only if a person has not been convicted of any of the acts included in it. Otherwise, it will no longer be a combination, but a repetition or recidivism of crimes. The totality of crimes in the theory of criminal law is traditionally divided into real and ideal . This division is generally recognized by the Kazakh science of criminal law, as well as the science of criminal law in the countries of the near and far abroad.
The regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 "On the qualification of repeated and cumulative crimes" states that the totality of crimes is divided into real and ideal. The real totality of crimes is formed by the commission by one person of two or more criminally punishable acts, each of which contains a specific corpus delicti provided for in different articles (parts of the article) The special part of the Criminal Code. With an ideal totality, one act of the perpetrator contains signs of at least two different types of crimes provided for in two or more articles or parts of the article of the Criminal Code, and the whole deed is not fully covered by any of these norms of criminal law.
It should be noted that the characterization of the institution of a set of crimes is provided for in the General Part of the Criminal Code of the Republic of Kazakhstan, however, when qualifying specific crimes, the issues of a set of crimes are already considered in a Special part. In this regard, the Supreme Court of the Republic of Kazakhstan issued a regulatory resolution on July 11, 2003. "On judicial practice in cases of embezzlement" gave an explanation, that when the perpetrator commits several identical crimes aimed at seizing someone else's property, the responsibility for which is provided for in various parts of the articles 175, 176, 177, 178, 179, 180 According to the Criminal Code, an act in accordance with Part 2 of Article 12 of the Criminal Code should be qualified according to one part of the Criminal Code article, which provides for a more severe punishment with an indication of all qualifying features.. Dividing a population into an ideal and a real one has not only theoretical, but also important practical significance.
Firstly, the presence of a real aggregate, as a rule, indicates a greater public danger to the person who committed the crimes, and this may entail the use of a more severe punishment by the court, since with a real aggregate, the commission of the first crime may be recognized as an aggravating circumstance when sentencing the second crime (paragraph "a" of the first part of Article 54 The Criminal Code of the Republic of Kazakhstan).
Secondly, the statute of limitations for criminal prosecution is calculated differently in the ideal and real totality.
Thirdly, the real totality may form a qualifying sign of repetition in cases stipulated by law (see note 3 to Article 175 of the Criminal Code of the Republic of Kazakhstan). With perfect totality, this is excluded. Thus, the real totality of crimes is understood as the commission by a person by different independent actions of two or more crimes provided for in various articles or parts of the article of the Criminal Code, which took place before the sentencing of at least one of them. The real aggregate is provided for in Part 1 of Article 12 of the Criminal Code. The real population is characterized by the following features:
1) The presence of two or more isolated crimes. 2) The commission of crimes by two or more independent actions. 3) All crimes are classified under different articles of the Criminal Code of the Republic of Kazakhstan or parts of the same article of the Criminal Code of the Republic of Kazakhstan. An example of a real set of crimes may be the theft of Part 1 of Article 175 of the Criminal Code of the Republic of Kazakhstan, and 7 days later the same person commits intentional infliction of serious harm to health of 1 of Article 103 of the Criminal Code of the Republic of Kazakhstan.
The real totality is characterized by the simultaneous commission of crimes. In some cases, the time gap can be large, even taking years, but provided that the statute of limitations for criminal prosecution has not expired for the first crime. In other cases, it may take an insignificant amount of time. Perhaps there is no time gap between the crimes. This happens when one of the crimes is ongoing. For example, a person who committed an assault (Article 179 of the Criminal Code) used a pistol illegally stored in his possession (part 1 of Article 251 of the Criminal Code).
The real totality of crimes is possible in cases when they encroach on different objects (murder and injury to health), on similar objects.
An ideal aggregate is understood to mean that a person commits two or more crimes under different articles of the Criminal Code in one act. This type of aggregate of crimes is directly provided for in the second part of Article 12 of the Criminal Code of the Republic of Kazakhstan.
The signs of an ideal population are:
1) The presence of only one act.
2) Socially dangerous consequences provided for by various articles or parts of the article of the Criminal Code of the Republic of Kazakhstan.
For the existence of an ideal aggregate, it does not matter whether the act committed by the perpetrator is of a one-time nature or develops over a more or less long period of time.
With an ideal totality, the action by which the subject commits two or more crimes sometimes has the character of a single action. An example of such an ideal combination is setting fire to a house in order to kill a person in the house, two crimes are committed at once by one criminal act.:
1) intentional destruction or damage of other people's property by arson (paragraph "a" of part 2 of art. 187 of the Criminal Code);
2) murder (Article 96 of the Criminal Code). For the correct qualification of the deed, the determining factor here is the presence or absence of the perpetrator's intent to cause death to a person in the house. Qualification according to the totality of these articles is possible if the intent was to take a person's life. If there was no intent to kill, then the deed, in the presence of appropriate circumstances, qualifies as one crime (paragraph "a" of Part 3, art. 187 of the Criminal Code).
The ideal set of crimes includes cases when the subject, through one action, commits an attempt on a crime and simultaneously performs the composition of another completed crime. So, D. fired a gun at B. out of revenge, but missed. The charge hit the tanker tank and caused a fire followed by an explosion. In the above example, D. committed two crimes through one action (he fired a gun at B.): attempted murder, Part 3 of Article 24; Part 1 of Article 96 of the Criminal Code and reckless destruction or damage to other people's property, Article 188 of the Criminal Code.
It is important for the correct qualification of crimes to distinguish between the ideal totality, when the deed qualifies under two or more articles, and a single composite crime, when the deed, despite the presence of two objects and different consequences, qualifies under one article.
When distinguishing an ideal set of crimes from a continuing crime that is subject to qualification under one article (part of the article of the Criminal Code), it is necessary to determine in one or more criminal law norms the objects on which the attacks were committed and the consequences resulting from this crime, as well as to take into account how the subjective side of each of the committed acts is characterized.
In Part 3 of Article 12, the legislator clarifies the concept of competition as a general and special norm, which does not form a set. In science, it is believed that competition of norms takes place when the same act is covered by several articles of the Special Part of the Criminal Code. In the case of competition of norms, as opposed to the totality, one crime is committed, and the court needs to select one from several articles of the Criminal Code, according to which it should be qualified.
When general and special norms compete, a special norm must be applied.
If the same act falls under the signs of the general and special norms of the relevant articles of this Code, there is no combination of crimes, and criminal liability occurs under the article of the Special Part of this Code, which contains a special norm.
For example, Article 129 of the Criminal Code of the Republic of Kazakhstan provides for liability for defamation (a general rule), and Article 343 of the Criminal Code provides for defamation against a judge, prosecutor, investigator, person conducting an inquiry, bailiff, bailiff (a special rule). At the same time, the legislator recognizes the second crime as more serious than the first. In this case, there is no combination of crimes, and the act is qualified under art. 343 of the Criminal Code of the Republic of Kazakhstan.
The issue of competition of norms arises when they coincide in the main features described in the law: the object, the objective side, the subjective side, the subject. They are distinguished only by specific features related, for example, to the subject of the crime or if the victim is endowed with more specific properties.
In the competition of norms containing qualified and specially qualified compounds, the norm containing a specially qualified corpus delicti must be applied. For example, counterfeiting committed on a large scale by an organized group should not be qualified in the aggregate: part two of Article 206 of the Criminal Code, which provides for a large size as a qualifying feature, and part three of the same article, which provides for the commission of a crime by an organized group as a particularly qualifying feature. The actions of the perpetrators in this case are qualified only under part three of Article 206 of the Criminal Code of the Republic of Kazakhstan, which contains a more qualified composition, although the wording of the charge should contain all the qualifying features forming both qualified and specially qualified compositions.
In the case of competition between two privileged teams (with extenuating circumstances), priority is given to the most privileged. For example, the actions of a person who, in a state of passion, exceeded the limits of necessary defense and killed the attacker in connection with this, are subject to two articles of the Criminal Code at once: 98 and 99. Article 99 of the Criminal Code of the Republic of Kazakhstan, which provides for less severe liability, should be applied. The competition of norms containing qualified and privileged compositions is resolved in favor of the norm containing a privileged composition. So, if, in a state of sudden intense mental agitation caused by illegal actions of the victims, the subject commits the murder of two persons, then his actions should be qualified not according to paragraph "a" of the second part of Article 96 of the Criminal Code of the Republic of Kazakhstan, but according to the second part of Article 98 of the Criminal Code of the Republic of Kazakhstan.
The above-mentioned Normative Resolution of the Supreme Court of the Republic of Kazakhstan emphasizes that when establishing in a committed act the signs of a crime specified in the article of the Criminal Code providing for responsibility for the commission of a qualified composition (for example, special cruelty in murder), and along with this other signs that are the basis for qualifying the same act under mitigating circumstances (for example, in in a state of passion) there is no crime totality. In such cases, the act is subject to qualification under the article of the Criminal Code, which provides for less strict responsibility for the commission of this crime (for example, murder committed with extreme cruelty in a state of passion is subject to qualification only under Article 98 of the Criminal Code).
In cases where different qualifying criteria mitigating criminal liability for the commission of the same crime are provided for in several articles of the Criminal Code, the act is subject to qualification under the article of the Criminal Code, which provides for less strict liability. (For example, murder committed while exceeding the limits of necessary defense and in a state of passion is subject to qualification only under art. 99 of the Criminal Code). When the subjective side of one of the crimes committed by the same person is characterized by an intentional form of guilt, and the other crime is characterized by negligence (for example, committing premeditated murder of one person and causing death to another person by negligence), then even if the crimes committed coincide in terms of object, objective side and the consequences that have occurred, each act must qualify according to the relevant criteria
the provisions of the Criminal Code that provide for liability for intentional and reckless crimes.
If the law stipulates that one of the crimes included in the aggregate can only be committed by a special entity, and other crimes by other persons, then such crimes must be separately qualified under the relevant articles of the Criminal Code providing for responsibility for these crimes. Similarly, crimes forming an aggregate are subject to qualification if, in the commission of one of them, the subject of the crime was the perpetrator, and in the commission of others, the organizer, instigator or accomplice. In such cases, when qualifying the actions of a person who participated in the commission of a crime as an organizer, instigator, or accomplice, it is necessary to apply article 28 of the Criminal Code and the corresponding article of the Special Part of the Criminal Code, which provides for responsibility for the crime committed, and his act, in which he is the perpetrator, should be qualified independently under the relevant article of the Criminal Code.
If one of the crimes committed was the means and method of committing another crime and the signs of both crimes are indicated in the disposition of the relevant norm of the criminal law, then the deed is subject to qualification only under one article of the Criminal Code, which provides for responsibility for a more serious crime. At the same time, additional qualifications under the article providing for responsibility for a less serious crime are not required. (For example, abuse of official position in the commission of smuggling is subject to qualification only under paragraph "b" of part 2 of art. 250 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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