Candidate of legal sciences, professor Kyzdarbekova B

Candidate of legal sciences, professor Kyzdarbekova B.Zh.

Karaganda State University named after E.A. Buketov, the Republic of Kazakhstan

Student of the law department Kim A.A.

Karaganda State University named after E.A. Buketov, the Republic of Kazakhstan

The legal person as the crime committer

References

1. Naumov A.V. The Criminal Law General Part. Lectures course. Moscow, 1996. - P. 179-183; Kelina S.G. The legal person criminal liability in the Criminal Code project of the Russian Federation // Criminal law: new ideas: Festschrift. Moscow, 1994.; Volzhenkin B.V. Criminal liability of legal persons. Saint Petersburg, 1998.; Nikiforov A.S. The legal person as the crime committer. Moscow, 2002.

2. Kuznetsova N. About General Part of the Russian Federation Criminal Code project // Russian justice. - 1994. - #7. - P. 27.; The criminal law course. Volume 1: The doctrine of the crime / Edited by N.F. Kuznetsova and I.M. Tyazhkova. Moscow, 2001. - P. 266-269.; Pavlov V.G. The crime committer. Saint Petersburg, 2001. - P. 256-267.

3. Kistyakovskyi A.F. Elementary book of general criminal law. The General Part. Kiev, 1882. - P. 300.; Tagantsev N.S. Russian criminal law. The General Part. Volume 1. Tula, 2001. - P. 308-316.; Poznyshev S.V. The basic principles of the criminal law science. Moscow, 1912. - P. 128-131.

4. Tagantsev N.S. Russian criminal law. The General Part. Volume 1. Tula, 2001. - P.309.

5. Antonova E.U. The legal person as the crime committer. Vladivostok, 1998. - P.4.

6. Kozlov A.P. The doctrine of the crime. Saint Petersburg, 2004. - P. 393-404.

7. Zhevlakov E. The criminal liability of legal persons for the environmental crimes // Criminal law. 2002. - #1. - P. 11.

8. Naumov A.V. Russian criminal law. The General Part: Lectures course. - Moscow, 1996. - P. 182.

9. Kelina S.G. The legal person criminal liability in the Criminal Code project of the Russian Federation // Criminal law: new ideas: Festschrift. Moscow, 1994. - P. 52.

10. Kuznetsova N.F. Codification of economic crimes // Bulletin of Moscow University. Series 11. The Right. - 1993. - #4. - P. 20.

11. Kuznetsova N.F. Objectives and mechanisms of the reform of the Criminal Code // State and the law. 1992. #6. - P. 82; The criminal law of the Russian Federation. The General Part // Edited by Zdravomyslov B.V. Moscow, 1996. - P. 204; The criminal law. The General Part // Edited by Kozachenko I.Y. Moscow, 1997. - P. 167-168; The criminal law. The General Part // Edited by Vetrov N.I., Lyapunov U.I. Moscow, 1997. - P. 267-268.

12. Mukhametzhanov E. To the issue of criminal liability of legal persons according to the Criminal Code of Kyrgyz Republic // Lawyer. - 2011. - #5.

13. Basin U.G. Civil liability in commercial law relations // News of the Academy of Sciences of the Kazakh SSR. Series of social sciences. - 1984. - #4. - P. 66-75.

14. Dzhekebaev U.S. The criminal liability of the legal persons // News of National Academy of Sciences of the Republic of Kazakhstan. Series of social sciences. 1993. - #4. - P. 77.

In the current Kazakhstan criminal law (Article 14. of the Criminal Code) contains a provision that the crime committer is a natural person only. According to the general rules, legal person can carry only civil and administrative liability. This legislative approach is the traditional for the Soviet and post-Soviet countries - a space, where criminal liability of legal person is incompatible with the principle of culpability and personal liability. However, contrary to this postulate the criminal liability of legal person has been discussed since the end of the 20th century.

It should be noted that in 1993, at the 9th session of the Supreme Court of the Republic of Kazakhstan, the question of the introduction of criminal liability of legal persons was approved in the first reading of the Criminal Code project. However, the Model Criminal Code for the CIS, adopted on the 17th of February 1996 by the CIS Inter-Parliamentary Assembly, did not contain the recommendation for the introduction of criminal liability of legal persons. This innovation was not perceived during the development of the Criminal Code of the Republic of Kazakhstan in 1997. Obviously, the fear of the legislator was caused by the fact that, firstly, the criminal liability of legal persons is contrary to the principle of personal responsibility and fault, and secondly, there are difficulties in the development of the model of criminal liability in criminal law. The legislator proceeded from existing financial responsibility for the illegal activity of legal persons in civil, tax and financial law.

However, the debate on the question of recognition of the legal person as the crime committer does not stop until now. Moreover, the number of supporters of the introduction of the criminal liability of legal persons in recent time is higher than the number of the opponents.

The main arguments of the supporters are that, firstly, for the last years the number of committed crimes by legal persons increased, and for which they are unreasonably go unpunished, and secondly, it was caused by international agreements, which make the legislator to bring the national legislation to the international standard. It must be noticed that nowadays the criminal liability of the legal persons is provided in legislation of foreign countries (the UK, Germany, France, Italy, Belgium, Austria, the Netherlands, Ireland, Denmark, the USA, Canada, India, China, South Korea and etc). It is noteworthy , that the criminal liability of the legal persons is provided in the legislation of post-Soviet countries (the Republic of Moldova, Latvia, Lithuania). The prospects of the introduction of criminal liability of legal persons are actively discussed in Russia, Kazakhstan and Ukraine. However, these countries have a positive solution to this problem because projects of their Criminal Codes contain appropriate norms of legal persons liability.

In this regard it should be noted that in 1973, the European Committee on Crime Problems of the European Council recommended the legislators to include the legal persons as the crime committer of environmental crimes. Later in Strasbourg, on January 27, 1999, was adopted another document - European Criminal Law Convention on Corruption. Kazakhstan joined this Convention and national legislation must be brought to the standards of the international law.

The supporters of the introduction of the positive foreign experience in national criminal law were such prominent Kazakhstan scientists like U. Dzhekebaev, I.S. Borchashvili, S.B. Aisin, etc. A.V. Naumov, B.V. Volzhenkin, S.G. Kelina, A.S. Nikiforov support the recognition of the legal person as the crime committer. [1] There are also opponents to this point of view like N.F. Kuznetsova, G.N. Borzenkov, V.G. Pavlov, G.N. Baymurzin, etc, who are the supporters of the existing post-Soviet understanding of the criminal law and its limits. [2] Unanimously accepted the principle of criminal irresponsibility of the legal persons scientists of the criminal law A.F. Kistyakovsky, N.S. Tagantsev, S.V. Poznyshev. [3] N.S. Tagantsev laid out the argument on this issue in his lecture course, the result of which was the conclusion that the rejection of the doctrine of legal persons' liability as a legal fiction and the principle of criminal irresponsibility was impossible - "...only a natural person can be the crime committer". [4]

Nowadays the supporters of criminal liability of legal persons have stronger position. As supporters of corporate criminal liability, in this article we will try to prove the necessity of this institution in national criminal law. To do this, it is necessary to consider the opinions of supporters of legal persons' criminal liability. So, for example, E.U. Antonova points at the fact of mass violation of tax legislation by enterprises in the Far East. [5] A.P. Kozlov cites as an example the activities of enterprises which produce radioactive releases into the Yenisei. [6] E.N. Zhelakov indicates that in practice it is often impossible to bring the organization to civil liability because the damage to the environment can not be estimated. [7] "What is the use in sentence to long terms of imprisonment of the Chernobyl disaster perpetrators? - Asks Professor A.V. Naumov. What is the use could it be if we were able to place in prison two or three leaders of the former Ministry of Water Resources for the fact that the construction of so-called irrigation canals brought tens of thousands of hectares of arable land to salinization? It would be better if it was possible to stop the activity of the whole Ministry of Water Resources with the organizations, developing their criminal projects in environmental terms". [8] Professor S.G. Kelina believes that bringing CEO or other legal person representatives to the criminal liability is connected with objective imputation because they realize the illegal character of enterprise activity, for example, ejection of polluted water, but they were not able to change anything on their own. Moreover, in some cases, it is difficult to bring to the criminal liability a definite person, responsible for the water or air pollution. [9]

To the arguments said above, the opponents of the institute of criminal liability of legal persons find it inappropriate to establish criminal liability against enterprises for their illegal activity because these enterprises can be fined or liquidated in a civil law order; they compensate the damage in accordance with the norms of environmental, administrative law and Civil Code of the Republic of Kazakhstan. N.F. Kuznetsova wrote: "The main question in this polemics is "Why?" If it is necessary to toughen the liability of legal persons and it is really should be toughened, it is quite possible to realize it in the civil, economic and financial law". [10] However, from our point of view, if the illegal activity of the corporation led to the serious consequences, such as injury or death of the person, damage to the environment, only criminal sanctions would display the actual degree of danger to the society. Without a doubt, in such cases harm caused by legal persons is often many times greater than the harm that can be caused by a separate person. Obviously, that the penalties can not restore the social justice and prevent committing new offenses, because the penalties applied to the legal persons according to the civil and administrative law do not match the size of the damage. Therefore, it is not acceptable to establish civil and administrative liability for the act, which has all features of the criminal offense.

The main argument of opponents of the criminal liability of legal persons is that introduction of criminal liability does not correspond to such fundamental principle of criminal law as Mens rea or culpability. [11] The Minister of Justice of the Kyrgyz Republic E. Mukhametzhanov says that the legal persons "do not have real will, therefore, they can not have culpability, which is the basis for the criminal liability. Only person who is guilty in committed socially dangerous act is a subject of criminal liability and the features of this act are provided in the criminal law. Only person is able to be guilty, and to justify the opposite side is the mental perversion". [12] These positions must be accepted. It must be noticed that the concept of "culpability" in criminal law is different from the same concept in the civil law. In criminal law "culpability" means the mental attitude of the crime committer, then in the civil law it means the objective possibility of behavior, which would prevent the adverse social consequences. In other words, the culpability in the civil law is not applied as the basis of civil liability. U.G. Basin suggested that the concept of the "culpability" was brought from the criminal into the civil law. [13]

U.S. Dzhekebaev is right, stating that "the fault is a certain psychological attitude to the criminal act and the fault can not be applied to the legal persons. The fault of the legal persons can be understood as the act of illegal behavior of its representatives". [14] In this regard, we believe that the fault of the legal persons should be determined according to the fault of CEO. This is showed by the fact that the crime is usually committed in interests of corporation by the natural person.

So, Kazakhstan legislation does not consider criminal liability of legal persons but a positive solution to this problem we already have. This is proved by the new norms of the liability of the legal persons in the Criminal Code project.