Commentary to article 22. Responsibility for crimes committed with two forms of guilt of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     If, as a result of the commission of an intentional crime, grave consequences are caused, which, according to the law, entail a more severe punishment and which were not covered by the intent of the person, criminal liability for such consequences occurs only if the person foresaw the possibility of their occurrence, but without sufficient grounds, arrogantly counted on their prevention, or if the person it did not foresee, but it should and could have foreseen the possibility of these consequences. In general, such a crime is considered to have been committed intentionally.      

In the Criminal Code of the Republic of Kazakhstan, there are a number of crimes in which two forms of guilt (intent and negligence) may occur simultaneously. This combination of forms of guilt in the same crime is referred to in the literature as a mixed, double or complex form of guilt.      

For a long time, the problem of double guilt was discussed only on a theoretical level, and only the Criminal Code of 1997 consolidated this concept in art. 22 in the following wording: "If, as a result of the commission of an intentional crime, grave consequences are caused, which, according to the law, entail a more severe punishment and which were not covered by the intent of the person, criminal liability for such consequences occurs only if the person foresaw the possibility of their occurrence, but without sufficient grounds arrogantly counted on their prevention, or if the person did not foresee, but should and could have foreseen the possibility of these consequences. In general, such a crime is considered to have been committed intentionally."      

The introduction of this rule into the Criminal Code of the Republic of Kazakhstan was due to the need for a clear distinction between intentional and negligent criminal acts in a situation where the subjective signs of one criminal offense are simultaneously characterized by two forms of guilt.      

Crimes with two forms of guilt are, for example, intentional infliction of serious harm to health, which negligently resulted in the death of the victim (Part 3 of Article 103 of the Criminal Code); coercion to remove human organs or tissues for transplantation or other use, which negligently resulted in the death of a donor or other grave consequences (Part 3 of Article 113 of the Criminal Code); rape, which negligently resulted in the death of the victim (Part 3 of Article 120 of the Criminal Code of the Republic of Kazakhstan); kidnapping, which negligently resulted in the death of the victim or other grave consequences (part 3 of Article 125 of the Criminal Code of the Republic of Kazakhstan) and others. In all of these, as well as in other compounds, the design of which is similar, the intentional acts of a person bring to life such processes, the further development of which, in addition to the will of the person, cause more serious consequences than those to which he aspired.      

Consequently, the "double" (complex) form of guilt is used by the legislator in the construction of individual crimes in order to more fully establish the mental attitude of a person not only to the act, but also to the consequences, both to nearby, immediate, and remote, if any. So, if during the rape process a person allowed or desired the death of the victim, then the actions of the perpetrator form a set of crimes provided for in Part 1 of Article 120 and paragraph "k" of Part 2 of Article 96 of the Criminal Code of the Republic of Kazakhstan. If the person committing the rape did not foresee the possibility of the victim's death (for example, the victim suffered from acute heart failure, which the perpetrator did not know about), his actions should be qualified only under paragraph "a" of Part 3 of Article 120 of the Criminal Code of the Republic of Kazakhstan. The subjective side of the specified qualified composition of rape is represented by a double (complex) form of guilt: intent covers actions aimed at committing sexual intercourse against the will of a woman, as well as consequences in the form of an accomplished sexual act.; the person reacted carelessly to the onset of death: he did not foresee such consequences, but he should have and could have foreseen that the violence he was undertaking to overcome the victim's resistance might be too intense for her.      

The materials of the following criminal case can also serve as an example of committing a crime with two forms of guilt. So, A., after drinking alcoholic beverages with N. on the basis of a quarrel, with the aim of causing serious harm to the victim's health, life-threatening, deliberately stabbed him with a kitchen knife in the abdominal area, as a result of which he was hospitalized in a regional clinical hospital. According to the act of the forensic medical examination, N.'s death occurred from a penetrating stab wound to the chest and abdomen with damage to the diaphragm and abdominal neck of the intestine. This injury occurred shortly before admission to the hospital and is classified as serious harm to health due to the danger to life. The actions of the perpetrator were reasonably qualified under Part 3 of Article 103 of the Criminal Code of the Republic of Kazakhstan.      

Intent in relation to long-term consequences, acting as a qualifying feature that significantly increases the social danger of the act, is excluded in this case.      

In general, such crimes are classified as intentional.

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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