Doctor of Legal Science R.M. Abdrashev

International Academy of Business

Candidate of Legal Sciences A.M. Seralieva

Kazakh National Pedagogical University named after Abai

Liberalization of economic crimes as false humanization

of criminal policy in the Republic of Kazakhstan

One of the most important factors determining the efficiency of economic growth in the Republic of Kazakhstan is the protection of public relations, in which individuals and government agencies are the subjects. Guarantor of set before is the current Criminal Code of independent Kazakhstan - an indicator of the desire of the state to secure the protection of the Constitution recognized the highest values, which are the man, his life, rights and freedoms.

The Code reflects the progressive views on the legal system of Kazakhstan, which were previously identified by the State program of legal reform, approved by the ruling of the President on the12th of February, 1994. This first program document in the field of legal policy destined necessity of a comprehensive reform of the legal system in Kazakhstan.

At the same time the current state of crime prevention, dictates of the present time, as well as international trends of the development of the legal system indicate the need for humanization of the law in force, on the other hand penalty enhancement for certain types of crime. In this context, great importance for the modernization of modern criminal law was the development and adoption of the new concept of the Criminal Code of the Republic of Kazakhstan (December, 2012.).

One of the focus areas of humanization of the criminal legislation is the liberalization of economic crimes. Currently, the liberalization of economic crime in the Republic of Kazakhstan is well under way. This is evidenced by the main provisions of the new Concept of the Criminal Code of Kazakhstan , discussion of these provisions at the level of various private and public bodies , as well as the signing by the Head of State of the Law " On amendments and additions to some legislative acts of the Republic of Kazakhstan (for further decriminalization of crimes in the field of economic activity)", which aims at realizing the liberalization of economic crimes.

The main direction of the legislative changes that promote liberalization of criminal policy of the Republic of Kazakhstan was the modernization of the structure of the crimes in the economic activity under the Criminal Code of the Republic of Kazakhstan [1].

Such manifestations as partial decriminalization of named unit of the Criminal Code and its depenalization, expressed in widens the range of applicability of pecuniary sanctions (fines, confiscation), with the narrowing of the scope of the punishment such as imprisonment for economic crimes are worth noticing. For example, for illegal entrepreneurship, for willful evasion of satisfaction of accounts payable and others [2].

We tried to predict the consequences of this trend humanization of criminal policy based on the analysis of the new Criminal Code Concept of the Republic of Kazakhstan, newly adopted legal acts, the impact of liberalization of economic crimes in post-Soviet countries, statistical data and expert opinion.

Note that the liberalization in economic dictionary of concepts and terms means the increasing subjects’ freedom of action, the removal or reduction of restrictions to some activities, entrepreneurship emancipation. Price liberalization is the transition from appointed state prices (public pricing) to the system of free market prices (market pricing) [3]. At the same time, limited government intervention in the economy is one of the characteristics of a democratic state.

However, it is necessary to distinguish provisions relating to the extension of the economic actors’ freedom of action and provisions that are conditions for committing economic (including corruption offenses). For example, in the new Concept of the Criminal Code of the Republic of Kazakhstan it is said that the criminal law should provide maximum opportunity for amends, reparation. It is advisable to provide choice of behavior to such persons, in accordance with their personality, character of the committed act. It should be applied more severe penalties after the rejection of socially and the state desirable behavior of the guilty, his failure to take measures to eliminate the consequences of the offense. There must be broadly represent non-custodial sentence taking into account the specifics of economic crime and the personal characteristics of the perpetrators. Isolation from society should be the last resort and only to persons due to the nature of the offense, who is a real danger to society.

From our point of view, this proposal is deeply wrong. It is more appropriate when structuring the norms of the Special Part of the Republic of Kazakhstan in terms of economic crimes to provide alternative sanctions that are given the opportunity to apply a differentiated approach in sentencing in relation to persons who have committed economic crimes. The following provisions of the new Criminal Code of the Republic of Kazakhstan Concept, on the one hand is really humane measure, and on the other hand it creates conditions for corruption and economic crimes. First, it is "legalized bribe type." Secondly, it violates the principle of fault-based liability and gives the possibility to the subjects of law, who have committed economic crimes, to pay off the prosecution and punishment.

In the legal literature it is indicated that domestic business can be divided into two opposing camps - "clean" and "dirty". Representatives of the first camps strive to produce quality products, quality do a job and provide services, pay taxes, do not cheat customers and partners. However, they have a modest income. Representatives of the second camp do the opposite and tend to super-profits [4].

So, as a natural result the question now arizes, whether the humanization of criminal legislation of the Republic of Kazakhstan will be the reason for the criminalization of the economy?

Now let's see the impact of liberalization of economic crime in the Russian Federation. Thus, according to G. Smirnova, liberalization of criminal legislation on crimes in the sphere of economy, which was conceived as the good idea pursued in recent years, eventually ends up the opposite. The expert notes that all these years we have seen a growth in economic and related to it the corruption crime. According to the Central Bank, last year net capital outflow from Russia amounted to $ 56.8 billion, where $ 35.1 billion (i.e. about 60%) are derived within the framework of as it is called doubtful financial business [5].

Another direction of liberalization of economic crime in the Republic of Kazakhstan is the simultaneous expansion of the measures in the law which has incentive nature and complement by provisions requiring non-use of a sentence of imprisonment for persons convicted individual, including economic crimes and voluntarily compensate the damage to property in full. At the same time, this approach is unacceptable to the crime of great danger to the public, including terrorist crimes, corruption offenses, crimes committed as part of organized crime and other serious offenses.

From our point of view, this proposal is inappropriate as the General Part of current Criminal Code of the Republic of Kazakhstan already contains a number of measures of incentive native aimed at the non-use of criminal penalties, including persons who have committed economic crimes. At the same time, as a basis for exemption from criminal liability and punishment there are criteria such as the degree of the committed crimes (the category of crimes), active repentance, which is expressed in surrenders, in contributing to solve crimes or expiation of inflicted harm by the crime.

These provisions have been settled by the Article 26 (voluntary refusal to commit crime) and the Article 65 (Exemption from criminal liability in connection with active repentance), etc. [6]. In addition to the above, most of the economic crime is elitist. In this context, the possibility of a payoff of the criminals from criminal prosecution for committed economic crimes can generate negative consequences for the growth of abuses in this area.

In addition, replacement of sanctions involving deprivation of liberty for others can lead to the problems of extradition of perpetrators committed economic crimes and left the Republic of Kazakhstan. For example, Part 1, Article 159.4 of the Criminal Code of the Russian Federation provides a penalty of imprisonment up to one year, which eliminates the possibility of extradition of a person accused of the crime, as it is only possible for criminal offenses, which are punished by imprisonment for a term exceeding one year. Russian legislation (Article 460, 462 the Criminal Procedure Code of the Russian Federation) provides that extradition is possible in the case when his crime is punishable by imprisonment for a term of one year and above [7].

Creation of non-conflicts norms of criminal law is one of the areas to ensure the legality of legal regulation [8]. However, the provisions of the new Concept of the Criminal Code of Kazakhstan contradictory and create conflict. Thus, it is noted in the Concept that norms of the Criminal Code should not create conditions for corruption offenses and used to put pressure on employers. However, much of the innovation has a distinct character of corruption.

As positive innovations it should be noted the criminalization a number of actions, taking into account the need to strengthen the criminal defence of public relations related to economic activity . The authors of conception propose to consider the idea about the criminalization of dissemination of misleading information (not just advertising ) about goods and services , some other socially dangerous acts , as well as recognition of bribery in the private sector ( commercial bribery in the degree of public danger should be closed to a bribe ) .

The current proposal is timely, considering the ratification by the Republic of Kazakhstan of the United Nations Convention against Corruption, May 4, 2008 [9]. This legal act has a proposal to criminalize offenses related to bribery in the private sector. However, the position of the international legal instruments is controversial because corruption has historically been viewed as selfish abuses in the public sector rather than in private [10].

Thus, the above analysis has allowed us to draw the following conclusions, suggestions and recommendations related to improving the efficiency of criminal policy in the sphere of economy. Analysis of the legal literature and the negative effects of liberalization of economic crimes in post-Soviet states indicate that this trend of criminal policy has led to the criminalization of the economy and created favorable conditions for committing economic crimes and corruption , as well as legal repurchase of the perpetrators committed economic crime, from law enforcement officials system. In this context, particularly in the context of the global crisis, the Republic of Kazakhstan in dire need of increased protection of public relations related to economic activity. Therefore, liberalization of economic crimes for the Republic of Kazakhstan is false humanization of criminal policy today.

References

1. Act of the Republic of Kazakhstan dated by November 9, 2011 № 490-IV «On introducing amendments and additions to some legislative acts of the Republic of Kazakhstan on improvement of law enforcement and further humanization of criminal legislation" // http://adilet.minjust.kz/rus/docs/Z1100000490

2. Review of implementation of the recommendations of the National Action Plan for Human Rights in the Republic of Kazakhstan for 2009-2012 years

3. Economics and Law: Encyclopedic Dictionary. - Moscow, 2001.

4. V. Kulikov, Businessmen are promiseв the will. Famous lawyers offer to unload prisons // Rossiyskaya Gazeta. February 10, 2011.

5. G. Smirnov, Budget was ruined with the liberalization. - Moskow, 2011.

6. The Criminal Code of the Republic of Kazakhstan: official edition - Almaty, 1997.

7. The Criminal Procedure Code of the Russian Federation. - Moskow: Eksmo, 2011.

8. Z.M. Chernilovsky, General History of State and Law. Textbook. - Moscow: LLC "TC Welby", 2002.

9. The United Nations Convention against Corruption (New York, October 31, 2003).

10. Yu.V.Golik, V.I. Karasev, Corruption as a mechanism of social degradation. - St. Petersburg.: Publishing House of R. Aslanova "Press Law Center", 2005.