Concept and common features of criminal law of the republic of Kazakhstan

This article covers the questions devoted to a concept and common featuresof Criminal law of the Republic of Kazakhstan. As well as this articleemphasizestherelevance of the problem of right and law that continues to remain also in the general theory of law. The author emphasizes that the essence of the problem comes down to existence of concepts of lawdivision on legal and unlawful. In connection therewith the author came to a conclusion that the final decision of the problem concerning the right and law "is possible only on the basis of essentiallynew methodological and world outlook and it is the case of the far future’.

Traditionally it is accepted to differentiate two types of laws in science –nature and society law and legal law. The first is necessary immanent to the nature of the phenomena a change tendency, movement, etc. which determines general stages, forms of process of formation of specific systems of natural phenomena, society and spiritual culture of mankind.

The second, in the most general view, represents rules of the resolution of the higher authority.

Legal laws also including the criminal law are created by human and as any product of his cogitative activities owing to continuous development of social production and other relations, changes of social and economic, political and ideological living conditions of society require corresponding changes and additions [1, page 75].

The Roman Lawyer Papinian, for example, determined the law as "an instruction, a decision of  wise men, restraint of the crimes committed intentionally or out of ignorance, general vow of the state".

Martsian adhered to similar determination of the law [2, page 15].

According to certain scientists, the right in Kazakhstan is understood in a broad sense and identified not only with the law, but also with the state laws. It is specifiedby the contents of Art. 4 Constitution of RK where it is provided: "lawin  force in RK are regulations of the Constitution, laws of other regulatory legal actscorresponding to it, international treaties and other liabilities of the republic and also regulatory resolutions of the Constitutional Board and Supreme Court of RK ". Proceeding from this constitutional provision, the conclusion is drawn that the Constitution of RK gives normative understanding of the right according to which any act irrespective of its content is the right [3, page 144-145].

Topicality of the problem of right and law continues to remain also in the general theory of law. The essence of the problem comes down to existence  of concepts of division of laws on legal and unlawful. Scientists-lawyers offered various bases - criterion for differentiation of legal and unlawful laws, however all of them only raised and raise further questions and discussions. With respect thereto theorists of right came to a conclusion that the final decision of a problem of the right and law "is possible only on the basis of essentially new methodological and world outlook and it is the case of the far future" [4, page 295].

Without going into detail of the continuing discussions, we believe nevertheless that the right and the law - not identical legal conceptions. Modern supporters of differentiation of the right and laws (V.S.Nersesyants, R. Z. Livshits, V. D. Zorkin, D. A. Kerimov, L.E.Mamut, V. A. Tumanov) also  proved that the right and the law - the phenomena interconnected, but not unambiguous. In particular, B.Kh.Toleubekova in the textbook "RK Criminal Procedure Law" refers to R. Z. Livshits's judgments: "Real - the  law which is due  - what it shall be.  Search of due in the theoretical plan also constitutes search of essence of the right" [5, page 21]. Thus, the right in comparison with the law is wider on content and form the legal phenomenon which is social more widely and advances the law in the development. For many years  of studying about it large amount of knowledgeis accumulated, certain notion of this phenomenon was developed, there was quite certain stereotype. At the same time there wasmuch until the end of not experienced its parties which are of interest to modern and future researchers. The law identification with  other regulatory legal acts from the legal point of view is absolutely incorrect as it reduces efficiency of application of the law that finally is fraught with legal chaos and infinite legal collisions. Owing to these and some other circumstances in Kazakhstan for the purpose of implementation of requirements of item 8 of Art. 62. fConstitutionsdated March 24, 1998t the Regulatory Legal ActsLaw RK " [6] was adopted.

Point 7 of article 1 of the specified law shall regulate that laws and regulatory legal acts shall be adopted by the supreme bodies of the government, Parliament of RK, and in the case provided by subparagraph 4 of Art. 53 of the Constitutions –by the President of Kazakhstan who has the highest legal  force and direct action in the territory of the Republic.

The following method of adoption of laws is holding arepublicanreferendumaccording to  the decision of the President of Kazakhstan. Referendum subjectcan be an adoption of the Constitution, the constitutional laws and laws RK according to article 2 of the Constitutional Republican Referendumact of  RK. At the same time paragraph 4 of Art.3 of the mentioned Constitutional law establishes that issues of justice, defenses, homeland security can't be a subject of national vote. Therefore, for the criminal law such method of acceptance as discussion on a republican referendum, isn't provided by the legislator.

Proceeding from the above, it is possible to formulate the following characteristic features of the criminal law. First, the criminal law is the standard legal document of the established form. Secondly, on the importance of the instructions containing in it the criminal law is among ordinary laws. Thirdly, it is accepted only by the supreme representative bodies, Parliament, and in the case provided by  the Constitution - the management official of the state - the President of Kazakhstan. The law has the highest legal force and supremacy over all subordinate regulatory legal acts.

Legal force of the act - property of the  legal act to generate certain consequence in law - depends on a regulation of the body which issued this act in system of statebodies and its competence. According to paragraph 1 of article 92 of the Constitution the current legislation of the Republic of Kazakhstan within two years from the date of adoption of the fundamental law (on August 30, 1995) shall be brought into accord with its provisions. At the same time bringing the current legislation to correspondence with the Constitution doesn't mean its automatic cancellation: the legislation of the republic existing at the time of entry into force of the Constitution keeps the legal force in the part which isn't contradicting it [7].

Legal and political signs of rule of law as highest legal act on a legal force are enshrined in the Regulatory Legal ActsLaw RK. According to article 4 of this Law the ratio of a legal force of others, except the Constitution, regulatory legal acts corresponds to the following descending levels:

  • laws making changes and additions to the Constitution;
  • Constitutional laws of the Republic of Kazakhstan and presidential decrees RK which are valid as constitutional law;
  • Codes of the Republic of Kazakhstan, laws, and also the Presidential decrees which are valid the law;
  • regulatorypresidential decrees of the Republic of Kazakhstan;
  • regulatory resolutions of Parliament of the Republic of Kazakhstan;
  • regulatory orders of the Government of the Republic of Kazakhstan;
  • regulatoryorders of ministers, standard resolutions state committees; standard orders, resolutions other central state bodies;
  • standard solutions of maslikhat and

Feature of the criminal is that it consists only of the Criminal code of RK. Otherlawsprovidingcriminalliabilityaresubjecttoapplica tiononlyaftertheirinclusioninthecriminalcode.

The Constitution, the international legal acts ratified by the Republic of Kazakhstan, resolutions of the Constitutional Council and standard resolutions of the Supreme Court of RK also belong to material sources.

On the basis of the specified  signs analysis it is possible to come to a conclusion that the Criminal law of RK is the unique formal source of the criminal law representing the regulatory legal act of a main type adopted by the supreme bodies of the government, establishing the general beginnings of  criminal  liability, determining what acts are crimes and what punishments are applied to the person guilty in committing them.

 

References:

  1. Criminal law of Russia. General part: Textbook / Under the editorship of B. V. Zdravomyslov. - M.: Yurist, 1996. - 420
  2. History of Political and Legal doctrines / Under the editorship of V. S. Nersesyants. – M, 1988. – 610
  3. Sapargaliyev G. The formation of the Constitutional System of the Republic of Kazakhstan, 1990- 1996//Collection of articles. – Almaty: Zhetizhargy, 1997. – Page 144-145.
  4. Theory of the State and Law: Course of lectures / Under the editorship of M. N. Marchenko. – M.: Zerkalo publishing house, 1998. – 460
  5. Toleubekova H. Criminal procedure law of the Republic of Kazakhstan. – Almaty, 1998. – 321 pages.
  6. Republic of Kazakhstan. The Law on regulatory legal acts dated March 24, 1998.. - Almaty: Zhetizhargy, 1998. - Page 3-8.
  7. Abdrasulov E. B. Statutory interpretation and constitution regulations: Theory, experience, procedure. - Almaty: "Orkeniyet", 2002, - Page 338-335.
Year: 2017
City: Almaty