Commentary to article 175. Theft of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Theft, that is, the secret theft of other people's property, —
is punishable by a fine in the amount of two hundred to seven hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of two to seven months, or community service for a period of one hundred eighty to two hundred forty hours, or correctional labor for up to two years, or restriction of liberty for up to three years, or by arrest for a term of up to six months, or imprisonment for a term of up to three years.
2. Theft committed:
a) a group of persons by prior agreement;
b) repeatedly;
c) with illegal entry into residential, office or industrial premises or storage, —
is punishable by imprisonment for a term of up to five years with or without confiscation of property.
3. Theft committed:
a) an organized group;
b) on a large scale;
c) a person who has previously been convicted of embezzlement or extortion two or more times, —
is punishable by imprisonment for a term of three to ten years with confiscation of property.
Notes. 1. In the articles of this Code, embezzlement is understood to mean the unlawful gratuitous seizure and (or) conversion of someone else's property in favor of the perpetrator or other persons who have caused damage to the owner or other owner of this property.
2. In the articles of this Chapter, with the exception of Articles 184, 184-1 of this Code, the value of property or the amount of damage is five hundred times higher than the monthly calculation index established by the legislation of the Republic of Kazakhstan at the time of the commission of the crime.
3. In Articles 175-181 of this Code, the commission of a crime is considered repeated if it was preceded by the commission of one or more crimes provided for in these articles, as well as Articles 248, 255, 260 of this Code.
4. In the articles of this chapter, as well as in other articles of this Code, a person with a previous conviction for one or more crimes provided for in Articles 175-181, 248, 255, 260 of this Code is recognized as a person who has a criminal record for one or more crimes provided for in Articles 175-181, 248, 255, 260 of this Code.
5. Petty theft of other people's property owned by the organization or under its jurisdiction, committed by theft, fraud, embezzlement or embezzlement, does not entail criminal liability. The person responsible for its commission is administratively liable in accordance with the law. Theft is considered minor if the value of the stolen property does not exceed ten times the monthly calculation index established by the legislation of the Republic of Kazakhstan at the time of the commission of the act.
According to art .26 of the Constitution of the Republic of Kazakhstan, citizens of Kazakhstan may have any legally acquired property in private ownership. No one can be deprived of their property, except by a court decision.
The public danger of theft lies in the fact that the perpetrator, by seizing someone else's property, causes material damage to both the owner of the property and another owner who had this property.
The object of theft is property.
The subject of theft is someone else's property in the form of objects of the material world that have an objectively determined value, in the extraction, cultivation, manufacture or production of which human labor has been expended and which, as a result, are subject to monetary valuation.
Documents and signs such as letters of credit, checks, savings books, tokens for clothes deposited in the wardrobe, power of attorney, receipts, etc. may not be subject to theft. By their very nature, such documents, regardless of whether they are registered or bearer, express only the right of their owner to certain property, their loss in itself does not entail a decrease in material benefits, the owner does not suffer material damage yet. This creates the conditions for committing theft in the future. Therefore, the illegal acquisition of natural resources (forests, wild animals), the creation of which was not accompanied by socially useful human labor, is not a crime against property, but refers to an environmental crime. Similarly, the subject of theft may not be funds and materials withdrawn from civil circulation that pose an increased public danger, which the legislator includes: radioactive materials (art. 248 of the Criminal Code); weapons, ammunition, explosives and explosive devices (art. 255 of the Criminal Code); narcotic drugs and psychotropic substances (art. 260 CC). At the same time, the stolen property at the time of the commission of the crime may be in the possession of the owner himself, as well as in the possession of other persons to whom this property was entrusted or it was in their illegal possession. The unlawful seizure of property jointly owned with other persons, including those belonging to a legal entity, of which the perpetrator is one of the founders, depending on the direction of the intent, can be qualified as embezzlement or as arbitrariness.
The objective side of the analyzed act is expressed in the commission of active actions. A characteristic feature of theft is a secret method of stealing someone else's property. It seems that when determining the secret nature of theft, the center of gravity should be shifted to the intent of the perpetrator, that is, to his subjective perception of theft. At the same time, in order to recognize the theft, it is required that the perpetrator sought to commit the theft secretly and that his intent was precisely the secret nature of taking possession of someone else's property.
The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On judicial practice in cases of embezzlement" dated July 11, 2003 (with amendments and additions) emphasizes that when deciding whether embezzlement is secret, judicial investigative authorities should proceed from the perception of the situation by the perpetrator himself. If the perpetrator believes that he is acting unnoticed by others, then theft should be classified as theft, even if the owner or another person is watching his actions. Theft should also be qualified as theft in cases where one of the above-mentioned persons sees the very event of taking possession of property, but is unaware of its criminal nature.
If the theft was committed in the presence of persons with whom the perpetrator is in a family, friendly or other personal relationship, in connection with which he expects that they will not inform and stop his actions, the act in such cases should also be qualified as theft. If the above-mentioned persons have stopped actions aimed at stealing someone else's property, then the perpetrator must be responsible for the attempted theft.
It should be recognized as a secret withdrawal, for example, of a purse from the victim's pocket, committed by the perpetrator in a situation where someone noticed his illegal actions, but treated them indifferently.
To qualify a secret theft, it is necessary that the seizure of property occur unnoticeably not only for the owner of the item, but also for those who protect this property, as well as for third parties. All of them are either absent at the time of the theft, or, being present at the crime scene, are unaware of the theft.
In the event that the perpetrator does not realize that the criminal nature of his actions has become known, the theft remains theft, since the kidnapper continues to act, being convinced of the secrecy of his crime. If the perpetrator, realizing that the criminality of his actions has been noticed, stops the abduction, then they can also be qualified either as attempted theft, if the perpetrator did not manage to seize anything, or as completed theft, if the perpetrator managed to take possession of any property.
Theft committed in the presence of persons who, due to their age, mental development, or other objective or subjective reasons (for example, severe intoxication), are unable to recognize the unlawful nature of the abductor's actions and resist their commission will be considered secret. To recognize the theft as secret, if it is committed in the presence of eyewitnesses, it is required to establish that these persons were not aware of the criminal nature of the actions committed by the perpetrator. For example, the perpetrator impersonates a person acting on behalf of the owner of the item.; Those present may have an impression of the legality of the abductor's actions under the influence of the confident actions of the perpetrator, who gets behind the wheel of an unattended car and drives away.
The presence of the owner's consent to the seizure of his property excludes the theft only if this consent came from the person who had the right to dispose of the seized property. It follows that if consent to the seizure of property is obtained from a person who is not authorized to dispose of the property, then in such cases the actions of the person who seized the property with such "permission" should be considered as theft of someone else's property. So, for example, the seizure of property from a room of a citizen living in a dormitory with other persons, with the "permission" of a roommate, in the absence of persons living in it, is nothing more than theft of someone else's property. This should also include cases where "permission" for the seizure of property was obtained from minors or mentally ill persons.
The presence of the owner's consent to the seizure of his property excludes the theft only if this consent came from the person who had the right to dispose of the seized property. It follows that if consent to the seizure of property is obtained from a person who is not authorized to dispose of the property, then in such cases the actions of the person who seized the property with such "permission" should be considered as theft of someone else's property. So, for example, the seizure of property from a room of a citizen living in a dormitory with other persons, with the "permission" of a roommate, in the absence of persons living in it, is nothing more than theft of someone else's property. This should also include cases where "permission" for the seizure of property was obtained from minors or mentally ill persons.
The criminal act of theft consists in the fact that the perpetrator, as a rule, directly commits the seizure of property from the possession of the owner or another person. To seize someone else's property, the perpetrator may take advantage of the actions of other persons who are not subject to criminal law (for example, in accordance with Part 2 of Article 28 of the Criminal Code — with the help of persons under the age of criminal responsibility or insane). At the same time, criminal liability does not apply to those who committed such a seizure, but to the one who persuaded them to commit the theft, regardless of the method of persuasion (deception, threat, blackmail, etc.). In these cases, such a person will act as the perpetrator of this crime, for which responsibility is imposed under art. 175 of the Criminal Code, and when committed by a minor, also in conjunction with Article 131 of the Criminal Code "Involvement of a minor in criminal activity." In cases where an exposed criminal, realizing that the theft he started secretly has been discovered by someone, throws the stolen goods and tries to escape so as not to be detained. His actions should be qualified as attempted theft (parts 3 of Articles 24 and 175 of the Criminal Code). If, in order to avoid detention, the perpetrator uses violence against the detaining persons, then his actions form an independent crime against a person, therefore, a combination of two crimes is necessary for qualification, such as embezzlement (art. 175 of the Criminal Code) and articles against the person, depending on the severity of the damage caused to the victim's health.
When analyzing the objective side of the theft of other people's property, it is necessary to establish a causal relationship between the action and the criminal result. The decision of a number of important issues depends on whether theft by theft is recognized as completed or not: on the qualification of the crime, on the voluntary refusal to commit a crime, on the circle of accomplices, on distinguishing theft from robbery and robbery, on determining the penalty. According to P. 7 of the Regulatory Decree of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003, the theft should be considered completed provided that the property has been seized and the perpetrator has a real opportunity to use or dispose of the stolen property at his discretion.
If theft is committed from a protected area, the issue of ending this crime depends on the nature of the stolen property and the perpetrator's intentions to dispose of it at his discretion or transfer it to third parties. So, if property is stolen that can be consumed by the perpetrator without removal from the protected area, and he has such an intention, the theft will be considered completed from the moment the property is separated and illegal possession is established over it. In cases of detention of the perpetrator upon leaving the protected area, when he first seizes other people's property, and then tries to take it out, since he cannot otherwise turn the property to his advantage, his actions should be qualified as attempted theft, provided for in parts 3 of Articles 24 and 175 of the Criminal Code.
Theft should be distinguished from robbery, which is committed openly. The actions of the perpetrator, initiated as theft and continued in the presence of the owner or other persons, should be qualified as robbery. If further violence is used in these cases to seize property or to hold it immediately after seizure, it should be classified as robbery or robbery combined with violence.
The subject of the theft is an individual, a sane person who has reached the age of 14. The legislator determines the age of criminal responsibility for theft from the age of 14 because from that age such a person develops consciousness and he knows that the seizure of someone else's property is unacceptable and that his actions may cause certain damage to the victim.
The establishment of responsibility for theft not from the age of 16, but from the age of 14 is associated with a number of circumstances. Firstly, theft, as a type of crime, is quite widespread among minors today, which is why their combined volume poses a significant danger to society. Secondly, the social danger of theft is understandable to a minor who has reached the age of 14, therefore, he is fully aware of the social danger of his act. Thirdly, the responsibility for theft, which begins at the age of 14, is focused on preventing more serious crimes on the part of minors, which they may commit if they do not stop their desire to continue criminal attacks in a timely manner.
On the subjective side, theft is committed only with direct intent and selfish purpose, that is, the perpetrator is aware of the socially dangerous nature of his actions, anticipates the possibility or inevitability of socially dangerous consequences and desires their occurrence; understands that secretly, without any right, seizes other people's property, thereby causing material damage to the owner in order to obtain illegal benefits for oneself or third parties.
The motive for the theft is self-interest. A selfish motive is a subjective reason for theft. The goal is what the perpetrator strives for. Unlike the motive, the purpose of theft characterizes the immediate result that the perpetrator seeks to achieve by committing a socially dangerous act. Thus, the motive of theft answers the question of what the person was guided by when committing the crime, while the purpose of the crime determines the direction of actions, the criminal result to which the perpetrator aspires.
The essence of theft is most accurately and fully conveyed when its selfish purpose is defined as the purpose of gratuitous and knowingly illegal seizure of the owner's property for use in accordance with its consumer or other intended purpose to meet their needs or the needs of third parties.
Along with Part 1 of Article 175 of the Criminal Code, the current criminal legislation provides for qualified (Part 2) and especially qualified (Part 3) theft, for which stricter liability is provided.
The following qualifying features are provided for in Part 2 of Article 175 of the Criminal Code:
a) a group of persons by prior agreement;
b) repeatedly;
c) with illegal entry into residential, office or industrial premises or storage.
Paragraph 8 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On judicial practice in cases of embezzlement" dated July 11, 2003 clarifies that when qualifying the actions of perpetrators based on the commission of theft of other people's property by a group of persons by prior agreement, it is necessary to find out whether there was an agreement between two or more persons expressed in various forms for embezzlement, whether collusion took place these persons before the beginning of the commission of actions directly aimed at seizing other people's property, that is, before the objective side of the crime is carried out by at least one perpetrator.
Embezzlement is qualified on the basis of a "group of persons by prior agreement" and in cases where the common efforts of two or more persons are combined to commit it and the actions of each of the accomplices are a necessary condition for the actions of other accomplices, according to the preliminary distribution of roles, and are causally related to the common criminal act resulting from the activities of all accomplices. the result. In such cases, it is not necessary for two or more perpetrators to participate in the crime; one performer is sufficient if there are other types of accomplices.
The responsibility of the organizer, instigator or accomplice comes under the relevant article of the Criminal Code, which provides for responsibility for a specific crime, with reference to art.28 of the Criminal Code, except in cases when they were simultaneously co-perpetrators of the crime.
A person who was not in a preliminary conspiracy with other accomplices of embezzlement, but joined them and took part in its commission by other persons, must be responsible for the specific actions actually committed by him as a co-perpetrator of the crime.
It cannot be regarded as an act committed by a group of persons by prior agreement, intentionally committed together with a person who has not reached the age from which criminal responsibility for this type of crime begins, or with a person recognized as insane.
In these cases, the person recognized as the subject of the crime, regardless of the form of participation, must be recognized as the perpetrator of the theft and, moreover, if there are grounds for this, his actions must additionally be qualified as involving a minor in criminal activity. In other cases, the involvement in the commission of a crime of persons who are obviously suffering from a severe mental disorder for the perpetrator, or persons who have not reached the age from which criminal responsibility begins, in accordance with paragraph 54 of the Criminal Code, is recognized as a circumstance aggravating criminal liability and punishment.
Moreover, in terms of form, this should be a co-execution, when the group members fulfill the objective side of the theft. However, it is not necessary that all participants in the theft perform the same actions. One of them may provide access to the stolen property, while others may seize property or perform other functions. The legislator sees here an increased public danger in the fact that the perpetrators act together, united by one criminal goal.
Collusion should be recognized as preliminary in all cases when it was achieved before the beginning of the crime, during the preparation for it, or immediately before the attempt. The time interval between the conspiracy and the beginning of the theft is not crucial. In the form of a conspiracy, it can be oral, written, with the help of gestures, etc. Persons who did not directly commit the theft, but only assisted in preparing or concealing traces of the crime, are held accountable as accomplices to the crime under Parts 5 of Articles 28 and 175 of the Criminal Code.
In accordance with paragraph 3 of the note to Article 175 of the Criminal Code, the commission of this crime is considered repeated if it was preceded by the commission of one or more crimes provided for in Articles 175-181 of the Criminal Code, as well as Article 248 of the Criminal Code "Theft or extortion of radioactive materials", Article 255 of the Criminal Code "Theft or extortion of weapons, ammunition, explosives or 260 of the Criminal Code "Theft or extortion of narcotic drugs or psychotropic substances".
In order to establish whether there is a sign of repetition in the committed crime, it is necessary to establish the signs of multiplicity. Firstly, in all episodes of embezzlement, the guilty person appears, while possessing the characteristics of the subject of the crime. Secondly, he must commit at least two crimes, the timing of their commission. Thirdly, each of them should be criminally punishable. If one episode of embezzlement entails administrative responsibility, and the second is criminally punishable, then there is no repetition. Fourthly, at least two of the committed theft episodes retain their legal significance.
The orientation of the perpetrator's intent is crucial in distinguishing a repeated crime from a continuing one. With continued theft, the perpetrator, through repeated seizures of other people's property from the same source, implements a single intent aimed at seizing property, achieving a predetermined goal, which collectively constitutes one crime.
In contrast to the ongoing, repeated encroachments on other people's property are characterized by the absence of a single intent to commit several embezzlements. At the same time, the guilty person commits not one, but several crimes, in which in each case he implements an independently arisen intent to seize someone else's property. To qualify theft on the basis of repeated occurrence, it does not matter whether a person has been convicted of previous crimes, as long as the statute of limitations for criminal prosecution or the repayment period for previous crimes has not expired.
Embezzlement cannot be qualified on the basis of repeated occurrence if a person has been released from criminal liability for previously committed embezzlement on the grounds provided for by criminal law (under amnesty, on the grounds of art.67 of the Criminal Code, etc.).
When considering criminal cases of embezzlement in which the persons involved had outstanding convictions for crimes that have been decriminalized under the new criminal law, the courts, without entering into an audit of sentences for previous convictions of convicted persons, should not take them into account when qualifying the actions of the perpetrators and imposing punishments. Such embezzlement should be recognized as repeated, which contain two or more acts of the perpetrator that have signs of an independent crime, if each of the thefts was separated from the other by a certain period of time and the perpetrator had an independent intention to commit each of them.
In paragraph 25 of the Regulatory Resolution of July 11, 2003, the Supreme Court of the Republic of Kazakhstan clarifies that when the perpetrator commits several identical crimes aimed at seizing someone else's property, responsibility for which is provided for in various parts of the articles 175, 176, 177, 178, 179, 180 In accordance with Part 2 of Article 12 of the Criminal Code, the act follows qualify according to one part of the article of the Criminal Code, which provides for a more severe punishment, indicating all qualifying signs of embezzlement.
According to the amendments made to the above-mentioned resolution on December 25, 2006, paragraph 17 states: "in accordance with Part 4 of Article 13 of the Criminal Code, previous convictions for embezzlement committed as a minor are not taken into account when qualifying an act on the basis of repetition or on the basis of a crime committed by a person who has been convicted two or more times."
If the theft was committed by a person who had previously committed not an identical (theft), but a homogeneous (for example, fraud or extortion) crime for which he was not convicted, then each crime is qualified independently, but the second one is subject to the qualifying sign of repetition.
The public danger of theft increases with illegal entry into residential, office or industrial premises or storage, since in order to commit a crime, the perpetrator makes certain efforts to overcome obstacles and gain access to property, breaks doors, ceilings, breaks locks, etc., in respect of which the victim takes special measures to ensure its safety.
Illegal entry is a secret or open invasion or entry into a residential, office, industrial premises or storage for the purpose of theft, robbery or robbery.
This qualifying feature may occur in cases where the intent to steal arose before the actual secret or open illegal invasion.
The actions of a person should also be qualified as illegal entry into a residential, office, industrial premises or storage facility when they invaded them by deceiving the victim, posing, for example, as a representative of the authorities, presenting a forged document for the purpose of entry. Deceptive entry into a room or storage for the purpose of stealing property is the introduction, through various techniques, tricks, of a person in charge of the property or guarding it, and thus gaining access to the property stored there (under the guise of a plumber, electrician, with the presentation of a fake pass, etc.). If there are grounds, these actions must be They are also qualified under articles of the Criminal Code that provide for liability for misappropriating the powers of an official (Article 309 of the Criminal Code) or for using a deliberately forged document (Part 3 of Article 325 of the Criminal Code). Deceptive entry into a room will also be in cases where the perpetrator remains inside the room unnoticed at the time of its closure.
Penetration also occurs when the perpetrators retrieve stolen items without entering the specified premises using technical means and other devices.
If the perpetrator found himself in a residential, office, industrial premises or storage facility with the voluntary consent of the victim or the persons under whose protection the property was located, due to family relations, acquaintance and other circumstances, or in the case when the intent to seize arose in him already during such stay in the specified premises, his actions do not constitute this qualifying a feature.
Intrusion, as a method of entry, can be associated with overcoming obstacles, with the application of certain efforts by the perpetrator to gain access to the room, with forcibly overcoming the resistance of persons inside or guarding it from the outside, by breaking through the floor, windows, doors, ceiling, by picking up keys to locks and other methods.
Penetration can be carried out simply by the appearance of the culprit in a particular room, entering it if this room turned out to be unlocked, or using the temporary absence of the owners.
A room should be understood as both permanent and temporary, both stationary and mobile structures or structures designed to accommodate people or material assets.
According to P. 42, Article 7 of the CPC of the Republic of Kazakhstan, housing should be understood as a room or structure for temporary or permanent residence of one or more persons, including: own or rented apartments, a house, a garden house, a hotel room, a cabin; verandas, terraces, galleries, balconies directly adjacent to them, a basement and an attic of a residential building, except for an apartment building, as well as a river or sea vessel.
A storage facility is defined as buildings, special devices, places or areas of territory designated for permanent or temporary storage of material assets that are specially equipped with fences or technical means or secured (for example, cars intended for storage of property or used for this purpose, mobile car counters, refrigerators, containers, safes, storerooms, guarded railway platforms with cargo, fenced or unenclosed protected areas, etc.). Areas of territory (water areas), containers that are not intended for storage, but are used for these purposes (for example, combine bunkers, open car bodies and interiors, platforms and gondolas that are not under guard or do not have devices that prevent entry into them) do not belong to the concept of "storage".
The actions of the perpetrator who stole the components of the car (car radio and other built-in car parts) do not constitute a qualifying sign of theft with illegal entry into the storage.
Structures that are not an obstacle preventing a person's free access to the property located there (an open platform, a barge, etc.) should not be classified as storage facilities unless they are guarded. Territories intended not for storing material assets, but for growing any kind of products (gardens, vegetable gardens, melons, cattle pastures, fish ponds, etc.) do not belong to the storage.
Cash registers in the premises are isolated, have locking devices, are guarded by financially responsible persons, therefore they should be classified as storages.
Part 3 of Article 175 of the Criminal Code provides for the following particularly qualifying features:
a) theft committed by an organized group;
b) on a large scale;
c) a person who has previously been convicted of embezzlement or extortion 2 or more times.
The concept of an organized group is given in Part 3 of Article 31 of the Criminal Code, as committed by a stable group of persons who had previously united to commit one or more crimes. The main features are their organization and stability. In the above-mentioned Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003, paragraph 11 states that a crime is recognized as committed by an organized group if it is committed by a stable group of persons who have previously united to commit one or more crimes (organized criminal group, criminal community, gang). At the same time, in appropriate cases, the acts of the perpetrators should be additionally qualified under the articles of the Criminal Code, which provide for responsibility for the creation of an organized criminal group, as well as for the creation of a criminal community, gang or participation in them.
If the theft was committed by an organized criminal group, then the actions of the organizer, leader and members of the organized criminal group must be qualified together, providing for responsibility for the theft committed by an organized group under Part 3 of Article 175 of the Criminal Code and the corresponding part of Article 235 of the Criminal Code, as the creation and leadership of an organized criminal group.
The amount of embezzlement is one of the criteria determining the degree of public danger of this crime. Since the establishment of a large amount of damage is of particular qualifying importance and directly affects the application of one or another part of the rule of law to the perpetrator, its precise establishment is within the limits of proof and is an essential condition for the observance of legality in the administration of justice in cases of theft of other people's property. At the same time, the establishment of a large amount of theft is necessary for full compensation of material damage to the victim.
The concept of large size is considered by the legislator in paragraph 2 of the note to Article 175 of the Criminal Code and in paragraph 15 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On judicial practice in cases of embezzlement" dated July 11, 2003. Thus, the articles of Chapter 6 of the Criminal Code, with the exception of Articles 184, 184-1 of the Criminal Code, recognize the value of stolen property once or the amount of damage five hundred times higher than the monthly calculation index (MCI) established by the legislation of the Republic of Kazakhstan at the time of the crime. A single ongoing crime consisting of several episodes of theft committed with a single intent should also be qualified as theft on a large scale if the total value of the stolen property is 500 times higher than the MCI.
If the perpetrator's intent was aimed at seizing large-scale property and it was not carried out due to circumstances beyond his control, the deed should be qualified as an attempted theft on a large scale (Part 3 of art.24 and part 3 of Article 175 of the Criminal Code).
The summation of the value of stolen property is not allowed if the perpetrator has committed not one, but several thefts, in which the perpetrator's intention to seize someone else's property, which arose independently in each episode, is realized. In the case of a group theft, the entire amount of the stolen is attributed to each of its participants.
When determining the value of property that has become the subject of a crime, depending on the circumstances of its acquisition by the owner, it should be based on retail, market or commission prices in effect at the time of the crime, confirmed by relevant documents. If there is no price and a dispute arises about the amount of the stolen property, the value of the property is determined based on the expert opinion. The amount of stolen property is determined based on its value and in cases where other less valuable property is presented to the perpetrator in order to conceal the theft. At the same time, the value of the presented property in place of the stolen one can be taken into account when determining the amount of damage. A person who has previously been convicted of embezzlement or extortion two or more times, according to paragraph 4 of the note to Article 175 of the Criminal Code, is a person who has a criminal record for one or more crimes provided for in art. 175-181 of the Criminal Code, as well as Art.248 "Theft or extortion of radioactive materials", Art.255 of the Criminal Code "Theft or extortion of weapons, ammunition, explosives or explosive devices" and Art.260 of the Criminal Code "Theft or extortion of narcotic drugs or psychotropic substances".
Paragraph 17 of the Normative Resolution of July 11, 2003 clarifies that the actions of the perpetrator should be qualified under paragraph "b" of Part 3 of Article 175, paragraph "c" of Part 3 of Article 176, paragraph "c" of Part 3 of Article 177, paragraph "c" of Part 3 of Article 178, paragraph 179 of the Criminal Code, if a person has previously been convicted two or more times for embezzlement or extortion and these convictions have not been expunged or removed in accordance with the procedure established by law. When qualifying the actions of the perpetrator on this basis, previous convictions for embezzlement committed underage are not taken into account.
This qualifying feature should be regarded as a type of dangerous relapse. This qualification is an indicator of the high degree of public danger of such a category of persons, which, according to the law, inevitably entails the need to apply stricter criminal penalties to them. This attribute can only be imputed if the person:
a) had at least two previous convictions;
b) convicted not for any crimes, but only for embezzlement or extortion, provided for in Articles 175-181, 248, 255 and 260 of the Criminal Code;
c) a criminal record for previous crimes must not be withdrawn or expunged in accordance with the procedure established by law. A criminal record and other criminal consequences of a person committing a crime on the territory of another State have no criminal significance for resolving the issue of criminal liability of this person for a crime committed on the territory of the Republic of Kazakhstan, unless otherwise provided for by an international treaty ratified by the Republic of Kazakhstan, or if the crime committed on the territory of another State did not affect the interests of the Republic Kazakhstan.
The crimes provided for in Parts 1 and 2 of art. 175 of the Criminal Code of the Republic of Kazakhstan are crimes of moderate severity.
The crime provided for in Part 3 of Article 175 of the Criminal Code of the Republic of Kazakhstan refers to serious crimes.
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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