Commentary to article 21. A crime committed by negligence of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. An act committed through presumption or negligence is recognized as a crime committed through negligence.      

2. A crime shall be deemed to have been committed out of arrogance if the person foresaw the possibility of socially dangerous consequences of his actions (inaction), but without sufficient grounds thoughtlessly counted on preventing these consequences.      

3. A crime shall be deemed to have been committed through negligence if the person did not foresee the possibility of socially dangerous consequences of his actions (inaction), although with due care and foresight he should have and could have foreseen these consequences.      

There are a significant number of different types of crimes in criminal legislation that provide for liability for causing socially dangerous harm as a result of careless guilt. The careless form of guilt is considered less dangerous than the intentional one. At the same time, the socially dangerous harm caused by reckless crimes is significant, and in certain categories of crimes exceeds the harm caused by intentional crimes.      

21 of the Criminal Code of the Republic of Kazakhstan legislatively establishes two types of reckless forms of guilt: arrogance and carelessness.      

According to the provisions contained in the commented article, a crime is considered to have been committed by negligence if the person who committed it foresaw the possibility of socially dangerous consequences of his action or omission, but without sufficient grounds thoughtlessly counted on their prevention, or did not foresee the possibility of such consequences, although with due care and foresight should and could to anticipate them.      

Unlike intentional crimes, reckless crimes do not contain a volitional focus on achieving the consequences that have occurred, i.e. the consequences are not related to the goals and aspirations of the subject of the crime.      

However, what is common to intentional and reckless crimes is the perpetrator's negative attitude towards the demands of society.      

Carelessness can be in the form of arrogance (criminal recklessness) or in the form of negligence.      

Arrogance, according to Part 2 of Article 21 of the Criminal Code of the Republic of Kazakhstan, is characterized by the fact that a person who committed a crime through negligence foresaw the possibility of socially dangerous consequences of his action or omission, but without sufficient grounds thoughtlessly counted on their prevention.      

From the legislative definition, it can be seen that with criminal arrogance, a person is aware of the actual circumstances of his act, the development of a causal relationship, that an action or omission is aimed at generating socially harmful consequences, but hopes for real factors and circumstances that, according to his subjective assessment, can prevent the expected socially dangerous consequences. However, this calculation turns out to be insufficiently thought out, frivolous, and without sufficient grounds. For example, a motorcyclist, deliberately developing high speed, believed that he could easily slow down at any moment and avoid an accident. However, the brake failed at the right moment, the motorcyclist knocked down a passerby crossing the street and caused harm to his health. The motorcyclist foresaw the possibility of these consequences, but without sufficient reason thoughtlessly hoped to prevent them. He was being presumptuous.      

Arrogance, therefore, is characterized by: a) the presence of foresight of socially dangerous consequences of their activities; b) the presence of a frivolous, without sufficient grounds, calculation to prevent them.      

Criminal arrogance has some intellectual similarities with the intellectual moment of direct, and especially indirect intent. In both cases, the perpetrator anticipates the onset of socially dangerous consequences of his actions (inaction). However, the nature of foresight in these forms of guilt varies significantly.       When intentionally committing a crime, the perpetrator clearly foresees the specific consequences of his actions. With arrogance, the criminal consequences are foreseen in a general, abstract form. The perpetrator anticipates that his actions (inaction) may generally entail socially dangerous consequences, but believes that in this particular case these consequences will not occur.      

A strong-willed moment with arrogance is characterized by the fact that a person without sufficient grounds thoughtlessly expects to prevent socially dangerous consequences of his actions (inaction).      

The calculation of the perpetrator to prevent the harmful consequences of his act always involves calculating the real, specific circumstances that, in his opinion, should prevent the occurrence of consequences. Therefore, arrogance differs from indirect intent and is a strong-willed sign. In case of criminal arrogance, a person seeks to prevent the occurrence of socially dangerous consequences, based on specific circumstances. In an indirect intent, a person, at best, hopes for a happy combination of circumstances, due to which socially dangerous consequences will not occur, and does not take any action to prevent them.      

Criminal negligence, according to Part 3 of Article 21 of the Criminal Code of the Republic of Kazakhstan, is determined by the fact that "a person did not foresee the possibility of socially dangerous consequences of his actions (inaction), although with due care and foresight he should have and could have foreseen these consequences."      

An example of committing a crime of negligence is the following case. R. was returning from hunting with D. There was a loaded double-barreled shotgun in the car. R., when the car was braking sharply, hooked a mitten on the trigger of a gun, a shot occurred, which wounded the heart of the driver, D. The court qualified R.'s actions as negligent infliction of serious harm to health. R., although he did not foresee the consequences of his actions, but should have and could have foreseen them if He was more attentive and prudent. His mental attitude towards the consequence is expressed in the form of negligence.      

The following main features can be seen from the legislative definition of criminal negligence:      

a) a person's failure to anticipate the possibility of socially dangerous consequences of his action or omission;      

b) the person's obligation and ability to anticipate these consequences.      

The first point (when a person does not anticipate the possibility of socially dangerous consequences of his action or omission) is that negligence differs from intent (direct and indirect) and arrogance. The second point (the obligation and the ability of a person to anticipate these consequences) is that negligence differs from any innocent infliction of harmful consequences for which a person is not criminally liable.      

The duty of a person to anticipate the consequences of an act comes from well-known, written and unwritten norms of ordinary prudence and caution (for example, it is well known that it is dangerous to start games on the roadway, on cliffs, slopes, on the landing, on the roof of a house, on a construction site, etc.).      

In the formula of negligence, the legislator introduces not only the duty of a person to anticipate the onset of socially dangerous consequences, but also the ability of a person to anticipate them. If any of these signs are missing, then there can be no question of the person's fault. The ability to anticipate the onset of socially dangerous consequences characterizes the individual characteristics of a person: his age, life experience, professional knowledge, education, qualifications.

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

 Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases