Commentary to article 362. Non-execution of a court verdict, court decision or other judicial act of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Malicious non-execution of a court verdict, court decision or other judicial act that has entered into legal force, as well as obstruction of their execution —
are punishable by a fine in the amount of up to two hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of up to two months, or by community service for a period of one hundred and twenty to one hundred and eighty hours, or by arrest for a period of up to four months.
2. The same acts committed by a government official, civil servant, employee of a local government body, as well as employees of a government agency, commercial or other organization, —
are punishable by a fine in the amount of two hundred to four hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of two to four months, or by deprivation of the right to hold certain positions or engage in certain activities for up to five years, or by community service for a period of one hundred eighty to two hundred forty hours, or by arrest for a term of three to six months, or imprisonment for a term of up to two years.
3. Malicious violation of the rules of administrative supervision established by a court for persons released from places of deprivation of liberty, as well as unauthorized abandonment of a supervised place of residence or failure of a supervised person to arrive at a chosen place of residence within the prescribed period after release from places of deprivation of liberty in order to evade administrative supervision, — shall be punishable by correctional labor for a term of one to two years. years, or by arrest for a term of four to six months, or by imprisonment for a term of up to one year.
The procedure established in our country for the execution of judicial acts is designed for their voluntary execution, since after they enter into force they become binding. This is stated in paragraph 3 of Article 76 of the Constitution of the Republic of Kazakhstan, articles 131, 449 of the CPC, Article 21 of the CPC, paragraph 1 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003 "On liability for malicious non-enforcement of judicial acts." In accordance with them, sentences, decisions, resolutions, rulings, orders that have entered into legal force, as well as legal orders, demands, orders, summonses and other appeals from courts and judges related to the execution of judicial acts, are mandatory for all state bodies, officials, local governments, public associations, and other legal entities. citizens and are subject to strict enforcement throughout the territory of the Republic of Kazakhstan. The bodies conducting criminal proceedings and the courts must comply with the requirements of Articles 170, 305 of the CPC and Articles 158, 159 of the CPC, which provide for the adoption of measures to secure a civil claim. However, a significant part of judicial acts, which mainly concern compensation for property damage caused by a crime or other offense, are not enforced. To monitor their execution and, if necessary, to ensure their enforcement, there are special state bodies, such as the judicial enforcement service of the territorial bodies of the Ministry of Justice of the Republic of Kazakhstan, which are attached to all courts except the Supreme Court of the Republic of Kazakhstan, the bailiff service, which are formed at all courts of the Republic of Kazakhstan, the Interior Ministry.
The object of this crime is the interests of justice. The immediate object is the normal activities of bodies that ensure the execution of court decisions, as well as the procedure provided for by law for the execution of judicial acts in criminal and civil cases, as well as judicial acts of arbitration courts. The recognition of the procedure for the execution of judicial acts of arbitration courts as an object of the crime under consideration is due to the fact that in paragraph 2 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 28, 2002 No. 15 "On the protest of the Prosecutor General of the Republic of Kazakhstan against the normative resolution of the Supreme Court of the Republic of Kazakhstan No. 14 dated October 19, 2001 "On judicial practice of considering applications on the enforcement of decisions of arbitration courts," it is stated that in cases stipulated by legislative acts, including the Law on Foreign Investments, The decisions of the arbitration (administrative) courts are executed in the same way as the decisions of the judicial authorities of the Republic of Kazakhstan. P05000010s_
The object of the crime, the responsibility for which is provided for in part three of Article 362 of the Criminal Code, is the procedure for executing a court order establishing administrative supervision over a person released from prison. The objective side of this crime is the malicious failure to execute a sentence, court decision, or other judicial act that has entered into legal force, or to obstruct their execution.
Malicious non-execution of a judicial act can only be carried out through inaction. For example, a person sentenced to a fine does not pay it within the time limit established by penal enforcement legislation, evades appearing before a bailiff, does not inform the bailiff about a change of place of work or residence, does not comply with the requirements of the bailiff, etc.
The essence of inaction in relation to this crime is that the subject refrains from fulfilling the obligation imposed on him to fulfill the requirements formulated in the judicial act, although he has a real opportunity to fulfill them. At the same time, it should be noted that the methods of abstaining from performing duties can be different, including being expressed in active behavior.
Failure to execute a judicial act should also be considered the debtor's failure to take measures to execute a judicial act, conceal earnings and other property that may be subject to foreclosure, failure to provide information about the place of work, income from entrepreneurial activity without forming a legal entity, the conclusion of transactions on the alienation of property in order to evade obligations, as well as other actions related to the use of the debtor's funds and property for other purposes.
Failure to execute a sentence, court decision, or other judicial act means refusal or evasion of their execution. Refusal is an open unwillingness to execute a judicial act in a criminal or civil case. Avoidance is a hidden form of refusal. It consists in the fact that a person's behavior confirms his unwillingness to fulfill the duty imposed on him by the court. Liability under parts one and two of Article 362 of the Criminal Code occurs only in case of malicious failure to execute a judicial act. Failure to execute a judicial act will be considered malicious if its non-execution took place after a warning given to the perpetrator in writing, when the perpetrator does not execute it for a long time, harming the rights and legitimate interests of citizens, organizations or the state, in cases of ignoring the repeated demands of the bailiff to fulfill the requirements recorded in the judicial act; open, defiant refusal to fulfill it, lengthy red tape, etc.
Failure to execute, including malicious, a judicial act (resolution) in cases of administrative offenses does not entail liability under parts one and two of Article 362 of the Criminal Code, since liability for this act is provided for under Article 524 of the Code of the Republic of Kazakhstan on Administrative Offenses.
The debtor's payment of insignificant sums of money in order to evade the execution of a judicial act, if it is possible to fulfill the obligation in full, should be considered as non-fulfillment of a judicial act. Obstruction of the execution of a judicial act should be understood as any deliberate actions (inaction) aimed at making the execution of a judicial act impossible. Obstruction is opposition, rendering an obstacle to the execution of a judicial act.
Obstruction may be expressed in restricting the bailiff's access to inspect residential and other premises, storages in which the debtor's property may be located, and in other active actions that create obstacles to the bailiff's performance of his official duties. It may also be in the form of bribing a bailiff, misleading him or using any other forms of influence on a person who is obliged to execute a judicial act in order to prevent its execution.
Obstructing the illegal activities of a bailiff does not constitute a crime in question.
A crime is considered completed from the moment when the deadline for the execution of a judicial act stipulated by regulatory enactments has expired, if there were no valid reasons for the late execution of the judicial act, or from the moment when actions preventing its execution were committed. However, the untimely but voluntary execution of a judicial act, for example, with a delay of a short time (for example, for several days), if there are no serious negative consequences of such delay, can be considered as an insignificant act that does not pose a public danger (Part 2 of art.9 of the Criminal Code).
No consequences are required for the crime to be declared over. Therefore, the elements of crimes contained in Article 362 of the Criminal Code are among the formal ones.
The debtor's lack of a real opportunity to execute a judicial act in a certain part or in full precludes the possibility of bringing a person to criminal responsibility.
The beginning of the limitation period for criminal prosecution for malicious non-execution of judicial acts should be calculated from the moment of the actual commission of acts indicating malicious non-execution of a sentence, court decision or other judicial act that has entered into force, as well as obstruction of their execution. A person may not be held liable for malicious non-execution of a judicial act if the recoverer has missed the deadline set by law for submitting the enforcement document for execution, and it has not been restored.
If the act of the guilty person is simultaneously subject to both criminal and administrative law, then in accordance with part three of Article 19 of the CPC, the person is subject to administrative responsibility.
The subjective side is characterized by intent. The perpetrator is aware that he is not executing, although he should and has a real opportunity to execute a sentence, court decision or other judicial act that has entered into legal force, or hinders their execution. The motives of the crime (self-interest, self-interest, misunderstood interests of the service, etc.) do not affect the qualification, but can be taken into account when imposing punishment.
The subject of a crime under the first part of Article 362 of the Criminal Code may be sane persons who have reached the age of 16, with the exception of those listed in the second part of this article of the Criminal Code. Paragraph 11 of the resolution of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003 "On liability for malicious non-execution of judicial acts" states that only those persons who, in connection with a verdict, decision or other judicial act, are required to commit certain acts may be held criminally liable for malicious non-execution of a judicial act, as well as obstruction of their execution. actions during enforcement proceedings. Thus, this normative legal act establishes the circle of persons recognized as subjects of the crime in question. The subjects of the crime under consideration should primarily include convicts and defendants in civil cases. A qualified type of this corpus delicti is its commission by a representative of the government, a civil servant, an employee of a local government body, as well as an employee of a government agency, commercial or other organization.
320 of the Criminal Code recognizes an official of a state body who, in accordance with the procedure established by law, has administrative powers over persons who are not dependent on him.
In accordance with Article 1 of the Law of the Republic of Kazakhstan dated July 23, 1999 "On Civil Service", a civil servant is a citizen of the Republic of Kazakhstan who holds, in accordance with the procedure established by law, a position in a state body paid from the republican or local budgets or funds of the National Bank of the Republic of Kazakhstan and exercises official powers in order to implement the tasks and functions of the state.
Paragraph 4 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003 "On liability for malicious non-enforcement of judicial acts" obliges bailiffs, upon receipt of enforcement documents (a writ of execution, a stamped copy of the judicial act or an extract from it, an inventory of property seized to secure a claim), to take timely measures provided for by law to ensure enforcement judicial acts. The bailiff may be recognized as the subject of the crime in question under part two of art. 362 of the Criminal Code, since he is an official in the civil service and performs the tasks assigned to him by law to execute decisions of courts and other bodies.
Bailiffs who, contrary to the interests of the service, unlawfully assisted debtors in evading the execution of judicial acts that have entered into force may be held criminally liable for complicity in the group commission of the crime in question.
Civil servants do not include persons who carry out maintenance and ensure the functioning of state bodies (art.4 of the said Law). The list of persons who are not civil servants is established by the register of positions of employees of state institutions who are not civil servants (this register was approved by the Decree of the Government of the Republic of Kazakhstan dated January 11, 2002).
Employees of local self-government bodies may include persons who, in accordance with the procedure established by law, hold positions paid from the local budget in akimats, maslikhats at all levels and exercise official powers in order to implement the tasks and functions of local self-government bodies.
The crime in question is similar to the crime provided for in Article 148 of the Criminal Code (Violation of labor legislation) in cases of non-enforcement of a court decision on reinstatement. The norm on liability for malicious non-enforcement of a court decision that has entered into legal force, contained in part one of Article 362 of the Criminal Code, is common to the norm on liability for non-enforcement of a court decision on reinstatement in relation to Article 148 of the Criminal Code. In accordance with the third part of Article 12 of the Criminal Code (Set of crimes), a special rule is applied to the competition of these norms - Article 148 of the Criminal Code. The difference between these norms of the Criminal Code is that Article 148 of the Criminal Code applies if failure to comply with a court decision on reinstatement was not malicious, but a mandatory feature of the crime provided for in the first part of Article 148 of the Criminal Code is the consequence of causing significant harm to the rights and legitimate interests of citizens.
In relation to persons who have committed acts that impede the execution of a judicial act, accompanied by an encroachment on the life and health of the bailiff, slander, threat of murder, injury to health and other socially dangerous attacks, articles of the Criminal Code on liability for these acts may additionally be applied.
Part three of the article under consideration of the Criminal Code provides for liability for:
a) malicious violation of the rules of administrative supervision;
b) unauthorized abandonment of the supervised place of residence;
c) failure of the supervised person to arrive at the chosen place of residence within the prescribed period after release from prison in order to evade administrative supervision.
The rules of administrative supervision are established The Law of the Republic of Kazakhstan dated July 15, 1996 "On administrative supervision of persons released from prison". Compliance with the rules of administrative supervision plays an important role in preventing recidivism. In accordance with art .7 of the said Law, the following restrictions may be applied to persons under administrative supervision, depending on their lifestyle, behavior in the family and at their place of residence, and other circumstances characterizing the personality of the supervised person:
a) prohibition to leave the dwelling at a time determined by the internal affairs bodies;
b) prohibition of staying in places designated by the internal affairs bodies of the district (city), as well as traveling outside the district (city) without notifying the internal affairs body responsible for supervision;
c) mandatory attendance at the local body of internal affairs for registration from one to four times a month.
This list of restrictions is exhaustive and cannot be interpreted broadly. The body executing the court's decision on the establishment of administrative supervision should not exceed the limits set by the court and allow other restrictions on citizens' rights (labor, electoral, public, etc.).
A restriction in the form of a ban on supervised persons leaving their homes at night may be imposed on the supervised person between twenty-two and six o'clock local time, except in cases of performance of work duties. Supervised persons are prohibited from staying in places where large numbers of people usually gather and where crimes are often committed. When establishing a ban on staying in certain places, the nature and location of the crime previously committed by the supervised person is taken into account in order to prevent them from committing a new crime.
Persons under administrative supervision, when temporarily leaving for another locality, are required to obtain written permission from the internal affairs body.
362 of the Criminal Code may only be held liable if there is a court order that has entered into force to establish administrative supervision and has violated the restrictions established by the court. The commission of other violations that do not relate to the established restrictions is not grounds for bringing a person to criminal responsibility under article 362 of the Criminal Code.
If there are reasons that did not allow the supervised person to comply with the restrictions established (sudden serious illness of the supervised person, death or illness of his close relative, and other reasons), liability under the article in question of the Criminal Code is excluded.
In order to recognize the existence of a crime in question, it is required that the supervised person has committed a malicious violation of the rules of administrative supervision during the entire period of established supervision. In accordance with Article 6 of the said Law, administrative supervision is established for a period of six months to one year. In cases of violation by the supervised person of the rules of administrative supervision or restrictions imposed on him, as well as the commission of offenses, the term of supervision may be extended by a judge's decision on a reasoned recommendation from the internal affairs bodies each time for six months, but not more than two years. The period of validity of administrative supervision is calculated from the date of entry into force of the court order.
In accordance with paragraph 2 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 20, 2005 "On judicial practice of applying legislation on administrative supervision", upon the occurrence of conditions for termination of administrative supervision, employees of the internal affairs bodies are required to immediately issue a resolution on termination of administrative supervision, which is approved by the head of the internal affairs body.
Failure to issue or untimely issuance of a resolution on termination of administrative supervision does not entail its extension. Therefore, violation of the rules of administrative supervision after the expiration of its term is not grounds for bringing a person to criminal responsibility under part three of Article 362 of the Criminal Code.
In order to bring a person to criminal responsibility under part three of Article 362 of the Criminal Code, it is required that he commit a malicious violation of the rules of administrative supervision, since in other cases administrative liability arises under Article 366 of the Administrative Code. A study of the materials of criminal cases on responsibility for this crime has shown that the internal affairs bodies are criminalized for violating the rules of administrative supervision only after the supervised person commits a fourth violation of the restrictions established by the court. In paragraph 19 of the above-mentioned resolution of the Supreme Court of the Republic of Kazakhstan on this issue, there is the following explanation: "A person is subject to criminal liability for malicious violation of the rules of administrative supervision if, during the prescribed period of supervision, he was subjected to administrative penalties under parts one and two of Article 366 of the Administrative Code and again violated the legislation on administrative supervision." The normative resolution of the Supreme Court states that in order to bring a person to criminal responsibility under Part three of art. 362 of the Criminal Code, two violations of the rules of administrative supervision are sufficient.
Unauthorized abandonment of a place of residence under supervision, provided for in part three of Article 362 of the Criminal Code as an independent act, is a special case of violation of the rules of administrative supervision. Highlighting this act indicates that the legislator has decided to emphasize its particular danger.
When qualifying the actions of the perpetrator under part three of Article 362 of the Criminal Code for failure to arrive under supervision at the chosen place of residence on time after release from prison, it is important to establish the reason for the late arrival of the perpetrator at the place of residence, for how long he was late, and whether there were any valid reasons for the late arrival at the place of residence. If the delay was for a short period (one or two days), then in accordance with Part 2 of Article 9 of the Criminal Code, such behavior of the supervised person does not constitute a crime due to the fact that it does not pose a public danger due to its insignificance. When establishing valid reasons for the late arrival of the supervised person at the place of residence, even if the delay was for a long time, there will be no corpus delicti in his act due to the lack of an objective aspect of the corpus delicti.
The subjective side of this crime is characterized by intent. The content of the intent includes the consciousness of the culprit of the socially dangerous nature of the act he commits. When committing this crime in the form of the failure of the supervised person to arrive at his chosen place of residence within the prescribed period after release from prison, it is mandatory to set a goal to evade administrative supervision. If the existence of this purpose is not proven, then liability for failure to arrive at the place of residence within the prescribed period under part three of Article 362 of the Criminal Code is excluded.
The subject of the crime provided for in part three of Article 362 of the Criminal Code is a sane person who has reached the age of 16. For the composition of the crime contained in the specified part of Article 362 of the Criminal Code, the sign of a special subject is established. It may be a person in respect of whom there is a court order that has entered into legal force on the establishment of administrative supervision and who has allowed the restrictions established by the court. In accordance with art .2 of the Law of the Republic of Kazakhstan "On Administrative supervision of persons released from prison", administrative supervision is established for persons who have served their sentences:
a) for crimes committed with a particularly dangerous recidivism, as well as for crimes containing signs of extremism; b) for serious and especially serious crimes, or convicted two or more times to imprisonment for intentional crimes, if during serving their sentence their behavior indicated that they stubbornly did not want to embark on the path of correction and They remain dangerous to society;
c) for grave and especially grave crimes, or convicted two or more times to imprisonment for intentional crimes if, after serving their sentence or being released on parole from serving their sentence, they systematically violate public order and the rights of other citizens, or commit other offenses, despite warnings from law enforcement agencies.
An exhaustive list of crimes containing signs of extremism is contained in note 2 to Article 41 of the Criminal Code. These include crimes provided for in articles 164, 168 – 171, 233-3, 236, parts two and three of art. 337, article 337-1 of the Criminal Code.
Established art . 2 of the Law of the Republic of Kazakhstan dated July 15, 1996 "On Administrative supervision of persons released from places of deprivation of liberty", the list of persons for whom administrative supervision may be established is exhaustive and is not subject to extensive interpretation.
For example, administrative supervision cannot be established for persons with a criminal record for crimes committed by negligence or underage age.;
— decriminalized due to changes in the criminal law;
— belonging to the category of grave or especially grave crimes for which they have not served their sentences in places of deprivation of liberty. Persons who have been sentenced twice to imprisonment for intentional crimes and have not served their sentences in places of deprivation of liberty, as well as those who have had their criminal records removed or expunged in accordance with the procedure established by criminal law, may not be subject to administrative supervision.
In accordance with paragraph 4 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 20, 2005 "On judicial practice of applying legislation on administrative supervision", it is unacceptable to establish administrative supervision over persons released on parole from places of imprisonment, because in accordance with paragraph "b" art. 2 of the Law of the Republic of Kazakhstan "On Administrative Supervision of persons released from places of deprivation of liberty", administrative supervision is established for persons who have served their sentence if, during serving their sentence, their behavior indicated that they stubbornly did not want to embark on the path of correction and remained dangerous to society. Conditional early release, according to Article 70 of the Criminal Code, is possible only for persons who, while serving part of the sentence imposed by the court, have proved their correction and do not need to serve it completely.
However, in practice, there are also cases where the court unlawfully establishes administrative supervision over persons released on parole from places of detention. In particular, the Yesilsky District Court of the North Kazakhstan region, on the recommendation of the administration of the EC-166/4 institution, established administrative supervision over the convicted Litovchenko, who was released on parole for 2 years, 8 months and 22 days.
The establishment of administrative supervision over a person released on parole from serving a sentence is possible only in the case of a systematic violation of public order by this person after the expiration of the unserved part of the sentence, that is, the probation period, and before the expiration of three years from the date of the person's release from prison.
The Supreme Court of the Republic of Kazakhstan, in paragraph 6 of the above-mentioned resolution, established that a person is recognized as a malicious violator of the established procedure for serving a sentence, provided that the following penalties are imposed on him: placement in a penal isolation unit, transfer of convicted men to a cell-type room or to solitary cells, transfer of convicted women to cell-type rooms. Penalties that have been lifted or repaid cannot be grounds for recognizing a person as a malicious violator.
The persistent unwillingness to embark on the path of correction should be understood as the persistent negative behavior of a person in a correctional institution, expressed in a systematic violation of the established order of serving a sentence and ignoring measures of educational influence.
Evidence of a sustained negative orientation of behavior is the presence of two or more outstanding or outstanding penalties at the time of release from prison for violations. Violations of public order and the rights of other citizens or the commission of other offenses by persons released from prison are recognized as systematic if the person has been brought to administrative responsibility for their commission more than twice during the year.
Persons released from places of deprivation of liberty may be subject to administrative supervision for three years. After this period, the establishment of administrative supervision is considered illegal.
In accordance with Article 5 of the Criminal Code on the retroactive effect of the criminal law, administrative supervision cannot also be established in relation to a person who has been convicted and served a sentence for a serious crime, which is classified as a medium-gravity crime by the amended law.
Administrative supervision is established only in respect of persons who have served their sentences of imprisonment in the territory of the Republic of Kazakhstan. If the act for which administrative supervision has been established has been decriminalized, the court, at the request of the supervised person or his lawyer, on the recommendation of the internal affairs bodies or the prosecutor, cancels the decision on the establishment of administrative supervision.
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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