Commentary to article 13. The principle of humanism The Code of the Republic of Kazakhstan on Administrative Offences
An administrative penalty applied to a person who has committed an offense may not be intended to cause physical suffering or humiliation of human dignity.
The principle of humanism is set out in the disposition of the article, which is characterized by the following legal concepts: administrative punishment, infliction of physical suffering and humiliation of human dignity.
The concept of an administrative penalty is given by art. 40 of the Administrative Code. An administrative penalty is a measure of state coercion applied by a judge, bodies (officials) authorized by law for the commission of an administrative offense, and consists in the deprivation or restriction of the rights and freedoms of a person who has committed such an offense provided for by the Code. Part 3 of this article duplicates the element of the principle of humanism and provides for this principle for a legal entity. An administrative penalty is not intended to cause physical suffering to a person who has committed an administrative offense, or to humiliate his human dignity, as well as harm the business reputation of a legal entity.
An administrative penalty also performs the function of preventing an offense by both the person being held administratively liable and other persons.
Based on the numerous definitions set out in the legal literature, causing physical suffering is harming a person's feelings associated with physical pain and, as a rule, they arise when harm is inflicted on health. On the basis of Article 951 of the Civil Code, physical suffering is considered as an integral part of moral harm. Moral harm is the violation, diminution or deprivation of personal non-property benefits and rights of individuals, including moral or physical suffering (humiliation, irritation, depression, anger, shame, despair, physical pain, inferiority, discomfort, etc.) experienced (endured, experienced) by the victim as a result of the crime committed against him in the event of his death as a result of such an offense, by his close relatives, his spouse.
Humiliation of human dignity is a qualifying sign of administrative (art. 73) and criminal offenses (art. 105, 130, 131).
For example, Asanov J.K. and Korneychuk S.V., commenting on this qualifying feature, justified the definition of humiliation of human dignity, which is a psychological action. To humiliate is to accuse of far-fetched offenses, weak intelligence, poor mental development, reproach for physical disability, spread gossip, including intimate nature, insulting close relatives and the victim with unpleasant words for him (for example, words of animals, plants, etc. ), publicly express an opinion in front of family members about the intimate insolvency of a victim of domestic violence, ignoring and calling for a boycott by other family members , etc . .
Humanism in Latin means "humane", "human". This is, first of all, the recognition of a person as a person, an individual, his rights to free development, and the affirmation of human well-being as a criterion for evaluating social relations. Humanism reflects the moral position of society, expressing recognition of the value of a person as a person (individual), respect for his dignity, striving for his well-being as a goal of social development. The principle of humanism follows from the foundations of the constitutional order of the Republic of Kazakhstan, which proclaims the priority of the human person. As stated in art. 1 of the Constitution, "... the highest values of which are man, his life, rights and freedoms." This is nothing more than the normative consolidation of one of the manifestations of the principle of humanism.
A democratic political regime, in addition to democracy, includes a broad system of rights and freedoms belonging to a person and a citizen, and guarantees for their implementation. According to the generally accepted principles and norms of international law, the Constitution has not only increased the number of rights and freedoms, but has also made a certain reorientation in the priorities of these rights, putting in the first place those that are directly related to the individual. An important constitutional provision is the consolidation of inalienable human rights and freedoms and their belonging to everyone from birth. By proclaiming the equality of human and civil rights and freedoms, regardless of gender, race, nationality, origin and other circumstances (Article 12), the Constitution guarantees and controls their implementation. The principle, which is enshrined in the Constitution and is also universal, is also important, stating that the exercise of human and civil rights and freedoms should not violate the rights and freedoms of others.
The recognition of a person, his rights and freedoms as the highest value (Article 1 of the Constitution) expresses the humanistic principle of the constitutional system of Kazakhstan. Thus, humanism is proclaimed to be the most important qualitative feature of the state, its economic and legal systems, ideology, the fundamental principle of the activities of all authorities and local governments, enterprises and institutions, the guiding idea that determines the behavior of each individual and his relationship with civil society.
The concept of "supreme value" is more moral than legal. However, being enshrined in the Constitution, it becomes a legal norm, that is, a rule of conduct binding on all. But this is not a traditional legal norm, but rather a norm-principle. The principle that, when solving any issue, requires giving priority to the individual, his rights and freedoms, even when the so-called "expediency" suggests a different behavior. In this regard, lynching against a person who has committed an administrative offense is unacceptable, and torture and cruel, degrading treatment of a person suspected of committing an administrative offense are unacceptable. For the sake of a speedy resolution of the case, interference in personal and private life based on certain moral principles is unacceptable.
Protection requires all government agencies, and above all judicial authorities, to take actions to prevent violations of rights and freedoms and restore violated rights. The State also guarantees that everyone is provided with qualified legal assistance to protect their rights and freedoms, and in some cases, within the framework established by law, the right to self-defense.
So, the principle of humanism is a fundamental principle (idea), enshrined in the current administrative legislation, humane, merciful, respectful attitude towards subjects of legal responsibility in its establishment and application.
The main requirements of the principle of humanism are: the prohibition of the use of torture, violence and degrading treatment; the establishment of legal responsibility, taking into account respect for human rights and moral norms; the functional exercise of legal responsibility based on criteria of humanity, mercy, respect; the establishment of a system of benefits (exceptions to the principles of inevitability, equality) depending on the special characteristics of the subject (old age, disability, minor, illness, etc.) or regardless of them, manifested in acts of amnesty and pardon.
The principle of justice of legal responsibility is an idea, a fundamental principle, fixed in a system of norms providing for legal responsibility, consisting in equality, respect and protection of human rights and freedoms, compliance of legal norms with moral norms, categories of reasonableness and good faith, taking into account the hierarchy of personal, public and state interests.
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:
Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);
Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);
Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;
Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;
Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;
Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);
Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);
Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;
Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;
Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);
Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;
Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;
Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);
Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;
Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.
Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).
Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus
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