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Socially dangerous action and its consequence as one of conditions of social conditionality of norms of criminal law
Apenov Seryk Meiramovish, Al-Farabi Kazakh National University, candidate of jurisprudence, associate professor, Faculty of InternationalRelations E-mail: apienov68@mail.ru Makiseva Maryiyash Kaidaulovna, associate professor, Faculty of International Relations E-mail: makisheva5a@mail.ru
Socially dangerous action and its consequence as one of conditions of social conditionality of norms of criminal law
Abstract: The article objective signs of structure of a criminal offense, action or inaction and its public and dangerous consequences. Need of studying of the question posed is that by establishing a criminal and legal ban to this or that act the legislation has to consider a degree of intensity of socially dangerous act which under the correct assessment would provide justice and stability of norms ofcriminal law and differentiation of administrative misconduct from a criminal misconduct.
Keywords: Criminal law, Administrative law, Criminal Code, Code on administrative offenses, misconduct, social danger, criminal offense.
The question under discussion deals with the basis or ways of identifying the degree of social danger of the act defining it as criminal in criminal law and recognizing a criminal act socially dangerous from the point ofview of sociological analysis, which, as a result, would show the social conditionality of criminal law norms.
In criminal law for the recognition of the act as a criminal offense, the elements of a crime with a particular focus on the objective evidence are applied.
In conformity with the general provisions of criminal law, all acts recognized as criminal offenses must be socially dangerous, illegal, guilty and punishable. These common signs of a criminal offense by its sequence and nature are diverse. If social danger and the criminal character of the acts are the basis for establishing the legal interdiction, the wrongfulness and punishment of the acts are determined after the establishment of the legal prohibition.
We suppose that the basis of the existence of these common signs of a criminal offense require confirmation from the perspective of sociological analyses. The elucidation of the social danger and its consequences are considered to be important issues for the reason that in the legislative practice it often happens when the acts previously recorded as crimes are transferred to the Code on administrative offenses. In our opinion, such a legislative approach may signify the lack of stable, unambiguous laws and a firm legislative stance.
Substantiation of the social danger of the act and its consequences, arising from its accomplishment is regarded to be the task of sociology of criminal law, and its study is one of the main issues in this field of science.
N. A. Belyaev, considering the main directions of sociological research in criminal law, defines it as follows:
a) identification and research of objective and subjective factors influencing the creation of norms and institutions of criminal law (law-making activity);
b) elucidation and research of objective and subjective factors, affecting the efficacy of criminal law, its norms and institutions. Thus, he emphasizes the necessity of substantiating criminal law provisions not only from the point of view of law, but from the sociological angle as well [1, 45-46]. As we consider, the reason of researching of social danger of the act and its consequences posing a danger of a criminal character, not punishment, is associated with the sequence of categories of “crime" and “punishment”, i. e. first a crime must be committed, and only then we can speak about punishment.
Besides, the legal and sociological meanings of the notions “crime” and “punishment” are quite different; they are not identical notions. Under social assessment, the act recognized as a criminal offense may be considered dangerous to society, but social characteristics of punishment does not pose any danger.
However, in some cases, we can speak of socially dangerous consequences of punishment, and it may happen when punishment of criminals is applied incorrectly.
Sociological trend on justification of criminality of this or that act primarily draws attention to the degree of importance of public relations or social values and the clarification of socially dangerous features of acts encroaching on the values of society.
Thus, the social aspect of criminal law on the issue of the justification of a crime or inaccessibility of acts
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makes it obligatory to take into consideration not all the attributes of the elements of a crime such as forms of guilt inherent in this act, the age at which a person bears criminal responsibility, but its more significant and essential aspects which display the danger of this act.
The initial assessment or criterion of clarifying the social danger of the act must be a measure of conformity of the offense to the objective laws of society. Differentiating the behavior of people into different classes or groups exactly by this criterion, we can see that the socially positive behavior may change society for the better, while the negative behavior of people, being a conscious will of a person as well, may do damage to the values of society. The social danger of the act does not require the assessment of the action or inaction of a person.
In the theory of law socially positive or negative actions of a man are always analysed and accordingly are evaluated as the behavior of a conscious being, as the law analyses only the act of a sane person, who has reached the legal age. “All human actions have external (objective) and internal (subjective) features. External features provide the manifestation ofhuman behavior in the objective reality; internal features reveal mental issues (needs; interests; motives; etc.) which occur in the mind of a person and determine his behavior. In life, they form the psychological unity" [2, 213]. The concept of the social danger of the act in its content also covers the psychological unity of a man.
The social danger of human actions is easily determined in criminal offences by material evidence, when the end of the crime committed envisages the occurrence of significant damage in the property or physical form. The question arises how the social danger of acts relating to the formal or truncated composition can be substantiated, which legally at the end of the act does not envisage the occurrence of socially dangerous damage. The reason for the existence of such provisions in criminal law is connected with sufficient public or social danger of acts, and on this basis to set up the prohibition of criminal law for their committing.
In the literature on law the notions of formal composition are defined in the following way: “formal composition is such a composition which includes only acts without consequences. The crime with such a composition is considered to be completed from the moment of committing the act, regardless of the actually occurring consequences” [3, 58].
In our opinion, the definition given above does not reveal the meaning of the formal composition on full, because the question arises that if the act does not envis-
age harmful consequences, then why the act should be considered as a crime, what is the crime of the act. Consequently, the formal elements of a criminal offence will be the composition, the completion of which is defined by the presence of the act recognized by law as the criminal offence posing social danger in a sufficient degree.
To substantiate the crime of formal composition, it is necessary to disclose the social danger of the act. The principal meaning of the formal composition of a crime is determined by the possibility of the violation by law of protected objects, i. e. to inflict damage to the legitimate interests of society and the state, though in such offences there are no consequences of a material nature. Social danger of such a composition of a crime is substantiated by the necessity of establishing the legal prohibition, which otherwise would lead the respective sector of society to the state of chaos.
For example, such criminal offences as kidnapping, slander, rape, bribery, forgery, involvement of minors in criminal activity are referred to the formal composition. Let’s assume that bribery or forgery of documents are not regarded as a criminal offence by law. In this case, the conception that such acts must not be committed, will be formed in society, because for getting a document it is necessary to fulfil the relevant legal formalities. For example, if you want to have a diploma, you must study. Besides, nobody wants to be slandered.
Thus, in case of committing such acts, we are not able to bring those persons to criminal responsibility because of the lack of relevant articles in the law, which means that there would be no order in these fields of social life. That’s why such behavior of people due to its inconformity with the norms of social public life and a serious degree of consequences will be regarded as formally criminal and subjected to criminal — legal prohibition.
For the legislative practice the work related to criminalization and decriminalization is a frequently encountered phenomenon. In such a situation, the legislator often has no firm position on crime or inaccessibility of an act, when it is impossible to foresee the consequences of a material nature. Such an undesirable legislative practice is particularly common for acts that do not pose great danger. The reason that the legislator does not stand on the firm position related to crime or inaccessibility of the acts is connected with the existence in the system of law of the adjacent branch of law, administrative one.
Administrative law as well as criminal law is engaged in the protection of public relations, and for this reason, identical offences such as hooliganism, smug-
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Socially dangerous action and its consequence as one of conditions of social conditionality of norms of criminal law
gling violations oflabour safety rules, etc. can be found in this branch of law. These offences in criminal and administrative law differ in the severity of the offence. But in establishing an exact distinction between these branches of law in the theory of law for some categories of offences, there exist a method as taking into consideration the presence or absence of the consequences of a material nature.
For example, “administrative offences in transport, road and communications spheres” or “administrative violations of sanitary-epidemiological and ecological requirements for the environmental protection” do not require the application of responsibility on the occurrence of the consequences of a material nature. It turns out that the Code on administrative offences treats some offences in the form of formal composition, i. e. without the occurrence of damage, while criminal law for these offences envisages significant damage, i. e. deals with it as with a material composition.
Another distinctive criterion of administrative offences from criminal offences is the extent of the damage. According to this criterion in the theory of law property damage may be subdivided into small, considerable, large and extra large. For the occurrence of criminal liability, traditionally, the caused material damage should be not less than small.
However, in the new Criminal Code of the Republic of Kazakhstan of 2014, not observing such a criterion for the distinction between criminal law and administrative law, article 187 establishes liability for petty theft. In conformity with paragraph 10 of article 3 of the Criminal Code “inconsiderable (article 187) value ofproperty owned by the organization, not exceeding few monthly calculated indices, or property owned by a physical (natural) person, not exceeding two monthly indices”.
A fair remark may be addressed to such legislative practice, if to take into consideration the amount of one monthly calculated indices in the RK. In accordance with the law on Budget since January 2014 the amount of one monthly calculated index is 1852 tenge. If we consider this amount in relation of the exchange rate of the dollar to tenge, it is approximately $10. A monthly calculated index (MSI) is the index used in Kazakhstan for calculating pensions, allowances and other social payments, as well as for calculating fines, taxes, etc. To establish criminal liability for the theft causing the damage not less than $ 20, would mean the excessive severity of criminal law. The sanction of Article 187 for petty theft envisages a fine in the amount up to one hundred monthly calculated indices, or correctional work in the same size, or involvement into public work for a period
of up to one hundred twenty hours, or arrest for up to forty five days. That’s why, in respect of criminal offences against property, legislation of 1997 should be observed.
Another distinctive criterion of an administrative offence from a criminal one is the degree of gravity of the damage inflicted to human health. The Criminal Code of the Republic of Kazakhstan divides the physical damage inflicted to human health into light, medium and grave.
The Criminal Code of the RK ofJuly 3, 2014 subdivides criminal offences into two categories: “misdemeanor” and “felony”, and, accordingly, establishes liability for offences not of great gravity, which were previously transferred to the Code on administrative offences.
If to cast a look at the legislative history on the deliberate infliction of slight bodily injuries and damages it should be noted that in the Criminal Code of1959, 1997 criminal liabilities were envisaged. However, during the period of validity of the Criminal Code of 1997 under the humanization of criminal legislation, in conformity with the legal policy of the Republic of Kazakhstan for 2010-2020, the criminal law prohibition for beating, deliberate infliction of slight injury to health was abolished by the Law of the RK dated January 18, 2011 and administrative responsibility was introduced.
Thus, by introducing into criminal law of 2014 of the notion “criminal misconduct”, the criminal responsibility for these acts has been established. At present, intentional infliction of injuries to human health is not a crime, but a criminal misconduct.
While clarifying whether this or that behavior is criminal or not, the legislator must first of all decide the degree of social danger of the act. It is connected with the fact that in some cases there might be some difficulties in determining the boundaries between the acts relating to the formal structure of the crime and socio-negative acts infringing upon the moral and ethical norms, and in some cases upon the acts which should be considered as administrative offences. In order to decide the issue to what type of crimes the act belongs, i. e. to the norms of the moral and ethics or criminal offences, it should proceed from the point of view of the consequences of this act in case a legal prohibition is not imposed.
The next composition of crime is a truncated composition. In legal references the meaning of this composition is determined in the following way: “In a number of cases, the legislator transfers the moment of the completion of a crime to one of the stages of preliminary criminal activity — preparation or attempt. For the recogni-
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tion of such crimes completed, neither the occurrence of criminal consequences nor the completion of the act are required" [4, 52].
As we suppose, the meaning of a truncated completion lies in the fact that the social danger of the act on the level of the crime is detected not only by the actual moment of completion of a crime, but also by its initial stage of the implementation of illegal intentions, which by its content and the degree of danger infringe upon the law protected interests.
On this basis, such acts as banditry, organization of illegal paramilitary formation, extortion are considered to be completed crimes in their preliminary stage and have every ground for the criminal liability to be used.
In the truncated composition the actual moment of the completion of a crime does not correspond to the legal completion. The legal moment of the completion in such a crime is in the early stage of the criminal behavior, and the acts committed by an offender in the initial stage by virtue of sufficient social danger are recognized to be legally completed. Sufficient social danger of the acts which belongs to the truncated composition is substantiated by the presence of the legal moment of the completion of such a composition envisaged by other articles of criminal law. For example, banditry stipulated in article 268 of the Criminal Code of the RK, is legally considered to be completed from the moment of setting up of a stable armed group, but not from the moment of performing an armed attack, which means from the actual moment of the completion of this crime. But members of the group being armed with firearms, will show the presence of elements of crime, envisaged in paragraph 1 of Article 287 (illegal purchase, transfer, sale, storage, transportation or carrying of firearms, ammunition, explosives or explosion
devices). The formation of a stable criminal group as a gang, equally the participation in the acts of such a group, display the signs of a completed crime under Article 262 of the Criminal Code of the RK (Creation and management of an organized, criminal organization as well as participation in them).
Thus, the truncated composition unlike other elements of a criminal offence, has the following socially dangerous characteristics:
- the legal moment of the completion of a crime is in the early stage than its actual completion;
- in the legal moment of the completion the degree of the social danger of the act is extremely high;
- there are encroachments upon the objects protected by Criminal Law;
- in the initial stage of performing criminal intentions, there are signs of another completed crime.
Based on the fore going, it should be noted that the social danger of crimes under Special Part of Criminal Law, related to the formal and truncated composition of crimes, is determined by the direction against the values of society, or, at least by the possibility of occurrence of threats to violate them, by the gravity of such actions which may lead the society into a state of chaos, unless a legal prohibition is imposed.
It should be acknowledged that the elucidation of the degree of social danger of an action gives a justifiable ground to establish the criminal law prohibition of the commission of this act or a high degree of social damage of the action is a prerequisite for recognizing this act legally criminal. These two trends or the assessment of socially dangerous behavior must not be inconsistent with each other, i. e. the legal assessment of the danger of criminal act must be based on the social evaluation.
References:
1. Belyaev N. A. Criminal Law at the present stage: the problems of Crime and Punishment. - SPL, - 1192.
2. Criminal Law./edited by: N. F. Kuznetsova, I. M. Tyazhkova. - Vol. 1 - M.: Zertsalo, 1992.
3. Gaukhman L. I. Qualification of Crimes. - M., 2002.
4. Criminal Law of the Republic of Kazakhstan (Common part)./edited by: prof. I. I. Rogov and Prof S. M. Rakh-metova - Almaty: Norma-K, 2005.
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