Commentary to article 66. Exemption from criminal liability in case of exceeding the limits of necessary defense of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
A person who has exceeded the limits of necessary defense due to fear, fright or confusion caused by a socially dangerous encroachment may, taking into account the circumstances of the case, be released from criminal liability by the court.
Causing harm in conditions of necessary defense is considered as a socially useful, crime-precluding act. At the same time, the criminal law does not exclude the criminality of actions in excess of the necessary defense. In part three of Article 32 of the Criminal Code of the Republic of Kazakhstan, exceeding the limits of necessary defense is recognized as: "a clear discrepancy between protection and the nature and degree of public danger of an encroachment, as a result of which the encroaching person is clearly caused excessive harm, not caused by the situation."
Any assault, especially if it is committed suddenly, excites the human psyche, throws it off balance and causes natural excitement and confusion, which can lead to an exaggeration of the danger. In such a situation, the defender is not always adequately able to assess the situation, which often leads to an increased sense of protection.
66 of the Criminal Code of the Republic of Kazakhstan, the provision on the exemption of such persons from criminal liability if they exceeded the limits of necessary defense due to fear, fright or confusion caused by a socially dangerous encroachment is important to resolve the issue of criminal liability for an act committed while exceeding the limits of necessary defense.
The legislator allows the possibility of releasing a person from criminal liability if he exceeds the limits of necessary defense only under certain conditions.:
- a person should exceed the limits of necessary defense only due to fear, fright or confusion, and not for other reasons, such as revenge, resentment, lynching, etc.;
- the specified reasons for exceeding the limits of necessary defense should be caused by a socially dangerous encroachment, and not by other actions, for example, a disciplinary offense, an administrative offense, a civil tort, etc.;
- when exempting from criminal liability in case of exceeding the limits of necessary defense, other circumstances of the case are taken into account, for example: the place, time, situation of the encroachment, the degree and nature of protection, the number of encroachers and defenders, etc.;
- only the court has the right to release from criminal liability if the limits of necessary defense are exceeded.
The fear of a person who has been attacked and caused harm to an encroaching person when exceeding the limits of necessary defense should be understood as a strong fear of a person in connection with an encroachment committed on him. The emotional state of a person reflecting a socially dangerous encroachment is characterized by the sudden appearance of a feeling of fear caused by the encroachment.
Fright should be understood as the mental state of a person who has arisen as a result of a sudden attack on him.
The confusion of the defending person should be understood as his sudden confusion, confusion, and disorder of his actions due to fear, fright caused by a socially dangerous encroachment.
To resolve the question of whether the defender was in a state of fear, fright or confusion, whether such a state affected his ability to assess his defensive actions and act within the limits of necessary defense, it is necessary to conduct a psychological and psychiatric examination, the conclusion of which should be evaluated in conjunction with other evidence and the specific situation that has developed as a result of the commission of a socially dangerous encroachment and actions to protect against it.
In this regard, in each specific case, it is necessary to carefully clarify and establish the circumstances of the commission of such a crime (the time and place of the attack, the number of assailants and defenders, the presence of weapons or other objects used in the attack, the physical development and mental state of the parties, etc.), bearing in mind that depending on the prevailing situation In some cases, a person who has exceeded the limits of necessary defense as a result of fear, fright, or confusion may be released from criminal liability, while in others - not.
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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