Мир закона

D.K.Karatikenova — chief specialist of the Department of organization scientific-research and editorial-publishing work of the Aktobe law Institute of the Ministry of internal affairs of the Republic of Kazakhstan named after M.Bukenbaev, police Captain

УДК 344

TYPES OF CRIMES AGAINST THE PERSON IN THE CRIMINAL LEGISLATION OF THE REPUBLIC OF KAZAKHSTAN

ВИДЫ ПРЕСТУПЛЕНИЙ ПРОТИВ ЛИЧНОСТИ В УГОЛОВНОМ ЗАКОНОДАТЕЛЬСТВЕ РЕСПУБЛИКИ КАЗАХСТАН

ҚАЗАҚСТАН РЕСПУБЛИКАСЫНЫҢ ҚЫЛМЫСТЫҚ ЗАҢНАМАСЫНДАҒЫ ЖЕКЕ АДАМҒА ҚАРСЫ ҚЫЛМЫСТАРДЫҢ ТҮРЛЕРІ

Keywords: state, crime, freedom, personality, criminal process, criminal code, qualification.

Ключевые слова: государство, преступление, свобода, личность, уголовное судопроизводство, Уголовный кодекс, квалификация.

Түйінді сөздер: мемлекет, қылмыс, еркіндік, жеке адам, қылмыстық сот ісін жүргізу, қылмыстық кодекс, біліктілік.

According to the Constitution of the Republic of Kazakhstan the highest value of the state proclaimed the person, his basic rights and freedoms[1]. At the same time, the very protection of human rights and freedoms is administrative, civil and, in a special sense, criminal. A person is protected from the encroachments of the criminal, of the state and public authorities as on the part of law enforcement officers in the criminal justice process. The object of the crime is the person’s personality, when it can be or caused harm. At the same time, the legal status of a person covers his fundamental rights, freedoms and duties. That is, this concept includes life, health, personal freedom, honor, dignity, sexual freedom, sexual integrity, business reputation.

On the basis of which it should be noted that the concept of the qualification of these acts in conjunction with crimes against justice and the order of execution of penalties raises the question of consideration for clarification at the legislative level.

At the same time, in the issue of legitimization of state power and preservation of social stability, the main emphasis is on the effective activity of state bodies in the field under study. This activity should be based on the accuracy, unambiguity of the content of normative legal acts for the implementation of its activities. Therefore, first, it is necessary to determine on the description of a set of objective and subjective features that establish a socially dangerous act as a specific type of crime.

At present, the studied question of qualification of crimes against the person is relevant, as evidenced by the repeated appeal to him by various legal scholars. Among the most important issues in the topic under study is the correct interpretation of the concept of qualification of crimes against the person.

Crimes against the person are defined by the following features:

• endangering life and health;
• on the design structures of crime are established as finished from the moment of creation of danger, or from the actual moment of causing harm;
• generally, these crimes are serious or especially heavy;
• there is a fairly large gap in the sentencing of various crimes against the person due to the different measures of danger of these crimes.

And so among the legal scholars was the idea of the presence of different areas of criminal law protection of the individual: «on the distant approaches», to eliminate the immediate danger; punishability of harm that was caused «along the way» by the crime; punishability of attacks on life and health.

To determine whether a crime against a person belongs to any kind of influence some factors. According to R. S. Jinjolia, the effectiveness of the procedure of qualification of crimes against the person depends on the level of legal awareness and professional qualities of certain law enforcement officers[2]. But in practice, the professionalism of officers is not always characterized by their quality. And, accordingly, can not affect the presence of errors in the work.

1. S. Jinjolia defines unnecessary formality of certain blanket criminal legal norms. On the basis of what the main aspects of the question of qualification of crimes against the person which expire from imperfection of its normative legal basis and practice of its application are allocated. The first aspect is the competition of criminal law. According to the classification of A. I. Ryasov, there are several types of criminal law: competition of General and special rules, competition of the whole and part, as well as on the basis of the objective side. According to the first classification, the act committed by the perpetrator is characterized by both a General and a special rule, and thus the procedure for qualifying the crime is complicated. According to the second competition of criminal law norms differ in the volume of qualifying signs of illegal act. That is, if one criminal law rule considers the act as a whole, the other – only its separate parts. An example is the characterization of an act against the freedom, honour and dignity of the person by which kidnapping and unlawful deprivation of liberty must be distinguished. Thus, the committed act is characterized by the presence of signs of two elements of crimes established by the criminal law. That is at qualification of act it is necessary to take into account all circumstances for its reference to that crime having exact compliance with it[3].

Abduction of a person under article 125 of the Criminal code of the Republic of Kazakhstan includes the characteristics of several unlawful acts: the seizure of a person, the movement of a person to another place and his retention[4]. At the same time, illegal deprivation of liberty under article 126 includes one of the listed acts – illegal detention. Therefore, an accurate and objective study of all the circumstances of the crime is a guarantee of the correct qualification of crimes against the person. This determines the quality and professional activity of law enforcement agencies in a certain situation.

The greatest number of questions is the qualification of the act under article 99 of the Criminal code of the Republic of Kazakhstan «Murder». This act characterizes a high degree of social danger to human life, which has a sign of irreplaceability. From which it follows that the concentration of research on this issue.

Thus, in the implementation of the procedure of qualification of crimes against the person there are questions related to the implementation of certain objective and subjective factors. Among them, a high degree of public danger of these crimes, insufficient legal security, low level of competence and professionalism of some officers of law enforcement agencies of the state.

The determination of the correct characterization of crimes against the person establishes the elimination of the above shortcomings. Therefore, there is a need to develop and adopt a section in the criminal legislation, in particular, in the Criminal code of the Republic of Kazakhstan, which will establish rules for the qualification of crimes to minimize its subjective issues.

 

ANNOTATION

Determining the correctness of crimes against humanity determines the above disadvantages. Therefore, in the Criminal Code, in particular in the Criminal Code of the Republic of Kazakhstan, it was necessary to develop and adopt a section that defines the rules for disclosing a crime in order to minimize its subjectivity.

АННОТАЦИЯ

Определение правильности совершения преступлений против человечности определяет указанные выше недостатки. Поэтому в Уголовном кодексе Респуб­лики Казахстан необходимо было разработать и принять раздел, определяющий правила раскрытия преступления с целью минимизации его субъективности.

 ТҮЙІН

Адамзатқа қарсы қылмыстардың дұрыс жасалуын анықтау жоғарыда көр­се­тілген кемшіліктерді анықтайды. Сондықтан Қылмыстық кодексте, атап айтқанда, Қазақстан Республикасының Қылмыстық кодексінде оның субъективтілігін азайту мақсатында қылмысты ашу ережелерін айқындайтын бөлім әзірлеу және қабылдау қажет болды.

1. [1]      The Constitution of the Republic of Kazakhstan dated August 30, 1995 (with amendments as of 10.03.2017).
2. [2]      A. I. Ryasov Some features of qualification of crimes at competition of criminal law norms // Humanitarian and legal researches. — 2013. — № 2. P. 66-69.
3. [3]      R. S. Jinjolia Crimes against persons with a grading signs: issues of training [Text] / R. S. Jinjolia. — M.: Rusains, 2015. — 212 p.
4. [4]      Code of the Republic of Kazakhstan dated July 3, 2014 №. 226-V «criminal code of the Republic of Kazakhstan» (with amendments as of 21.01.2019).