#Smagulova D.S., Kaliyeva A.M. Features of the presentation and consideration of a civil action in cases of private prosecution

D.S.Smagulova, A.M.Kaliyeva

Al-Farabi Kazakh National University,

Senior lecturer Department of Customs, financial and environmental law, the Faculty of Law, Republic of Kazakhstan, Almaty,

E-mail: smgdana@mail.ru

Features of the presentation and consideration of a civil action in cases of private prosecution

The universal remedy of the rights, freedoms and legitimate interests of the victim is a civil action, claimed in cases where a crime caused material damages or non-pecuniary damage. The result is a fusion of the two rolled into one procedural figures - the victim and civil party.

Combining in one trial of a civil action and criminal prosecution is well founded. In criminal proceedings the theory is confirmed by the fact that: a civil action - is a way to meet the interests of the victim, who became a "victim of unlawful acts", and therefore, the state should come to his aid. [1, p. 45]

Stage marked the solution of the question of the possibility of compensation for moral damage in monetary terms, in our Republic, was the adoption of 24 April 1992 the Republic of Kazakhstan by the Plenum of the Supreme Court ruling №2 «On the practice of application of the legislation governing the rights and obligations of persons, victims of crime" [2, from. 3-8]. This Resolution of the Plenum has given an explanation of the right of the victim to bring a claim for compensation for moral damage in monetary terms and in recognition of his case as a civil plaintiff.

Thus, the Supreme Court of the Republic of Kazakhstan before the adoption of the Civil Code of the Republic of Kazakhstan and the Code of Criminal Procedure orientated law enforcement practice in the possibility of bringing persons who have suffered from a crime as a property, and the physical and moral damage, claims to compensation for material and moral damages in cash.

Criminal procedure legislation of the Republic of Kazakhstan, providing the victim, including in cases of private prosecution the right to bring a civil action states that are governed by Chapter 20 of the CCP when considering this category of cases presenting issues, of civil claims.

A civil action together with the criminal case in the manner prescribed by the Criminal Procedure Code of Kazakhstan, is a guarantee of timely protection of legitimate rights and interests of persons to whom a crime or an act prohibited by the criminal law insane suffered moral, physical or property damage. In this regard, the courts in criminal proceedings shall be ensured the correct resolution of civil claims presented in compliance with the requirements of substantive and procedural law.

By adjusting the behavior of participants in criminal proceedings, the institution of a civil action in the criminal process - is a criminal procedure institute. At the same time, defining the behavior of participants in the dispute about the rights of the civilian, institute a civil action in a criminal trial includes the features of civil procedure control method. Thus, it is a complex legal institution, joining the production in one case the crime (the criminal case) and the case for damages (civil case). This has obvious advantages both in terms of organization and preparation for the consideration of the review, and from the point of view of protecting the legitimate interests of the civil or legal person affected by the crime. It eliminates the need to double - in the criminal and civil proceedings - to defend the rights and interests violated offense to pay the state duty in a civil case, and most importantly - to prove the validity of their claim of claims by the rules of civil proceedings, where the burden of the proof lies with the plaintiff. Proving the civil action brought in a criminal case, it is carried out according to the rules stipulated by the Criminal Procedure Code of RK. This means that the burden of the proof lies on the person in whose production is a criminal case at the preliminary investigation stage.

Thus, a civil action in a criminal case - a claim for compensation for property damage caused by the offense stated in the criminal trial of a person who has suffered such damage, or his representative, as well as the requirement for non-pecuniary damage. The reason civil proceedings are details that make the assumption of criminal trespass, and the nature of the harm caused to the victim crime. [3, p. 167]

Jurisdiction of a civil action arising from the criminal case, is determined by the jurisdiction of the criminal case, in which he presented (Part 4 of Art. 162 Code of Criminal Procedure). Filing a civil suit in the absence of possible entered into force decisions on a similar suit to satisfy the requirements of cut-off in civil proceedings, as well as the settlement agreement in the framework of criminal proceedings.

A civil claim can be filed in a criminal trial only if the damage compensation which the plaintiff demands, causes of crime. If acquitted due to lack of evidence of a crime or innocence of the accused in the crime, the court refuses to satisfy a civil suit. In other cases, the claim shall not be considered. Leaving court civil suit without considering it does not prevent a subsequent presentation and consideration in the civil proceedings. [4, p. 93]

Connecting a civil action to the criminal case makes it easy to establish the grounds for satisfaction (failure) in a civil suit, allows the court in a legal proceedings to resolve the issues of the criminal case and a civil action, eliminates the victim and witnesses to appear in court, first in criminal, and then in the civil case . [5, p. 107]

Recognition of private prosecution as a civil plaintiff shall be preceded by the presentation of their civil action.

According to Art. 77 Code of Criminal Procedure a civil party in the criminal proceedings - a natural or legal person in respect of whom there are reasonable grounds to believe that an offense directly damage to property caused by him, make a claim for compensation. The civil plaintiff may sue the estate for non-pecuniary damage.

A civil claim in a criminal case may be filed by the prosecutor and, if required by the protection of interests and legal rights of citizens who do not have an independent to exercise their right to protection, and the protection of state and public interests.

Civil plaintiff may only be the owner or legal possessor of the lost or damaged as a result of the criminal actions of the property.

Since the recognition of the person as a civil plaintiff, it becomes a party to the criminal proceedings for the prosecution and acquires the rights of the parties in connection with participation in order to maintain a civil action brought against them. [5, p. 107]

The civil action may be brought at any time from the moment a criminal case, but before the start of the trial, both in finished and unfinished at the crime or the criminal law prohibited act insane, and when the defendant is not established. [6]

Civil actions may be brought only in writing, ie by drawing up a statement of claim, which must be indicated on any criminal case, someone to whom to sue..; the essence of the violation or threat of violation of rights, freedoms or legitimate interests of the plaintiff and his claim; circumstances on which the plaintiff bases its claims and evidence confirming these circumstances; price action, if an action is to be evaluated; list of documents attached to the application. The statement can be specified and other information relevant to the resolution of the dispute, as well as presented the petition of the plaintiff.

The statement of claim must be submitted with copies of the application on the number of persons referred to in it as civil defendants.

The request for consideration of a civil claim can be stated in the complaint itself to institute private prosecution (art. 390 CCP).

Since many of the rights of the civil party (private prosecutor) and their means of support are similar to the rights of the victim, we will focus only on the specific rights of the civil party and their guarantees.

Among these include, for example, the right to waive the civil action. This right is stated in Art. 168 Code of Criminal Procedure. The procedure for its implementation next. The civil plaintiff shall be advised that he at any time before the court in the deliberation room, the right to declare the refusal of their claims. Early clarification of the plaintiff the consequences of such refusal, ie it entails the termination of the lawsuit and the impossibility of re-application, including through civil proceedings, it is necessary, in our view, to ensure its interests. The implementation of this right depends only on the civil plaintiff's discretion. The Court in this case is obliged to agree with his opinion and take appropriate action (ie terminate the civil action). However, the duty of the court is not only an explanation of the consequences of non-action, but also finding out whether such a statement of civil plaintiff voluntary. According h. 6 Art. 168 Code of Criminal Procedure the authority conducting the criminal proceedings, does not accept the refusal of civil claim by the plaintiff, if these actions are contrary to law or violate someone else's rights and interests protected by law, what makes a reasoned decision.

Such protection of the rights of the civil party guarantee is required in any form of legal proceedings. But the special significance it acquires in criminal proceedings because of the plaintiff's decision, which in most cases is also a victim in a criminal case may depend on the continuation of the criminal proceedings. [7, 81 -84]

In the hours. 5, Art. 391 Code of Criminal Procedure provides for the possibility of conciliation in cases of private prosecution. In the case of a declaration of reconciliation civil party (private prosecutor), the proceedings by order of a judge is terminated pursuant to paragraph 6 hours. The first Article. 37 Code of Criminal Procedure.

The guarantee of the rights of victims in cases of private prosecution, which offense caused to property or pecuniary damage is determined by the Criminal Procedure Law opportunity statements and maintenance of the claim by the prosecutor, however, only in cases where the prosecutor shall institute proceedings in the case of private prosecution in the absence of the victim's complaint if the act affects the interests of persons in a helpless or dependent condition or for other reasons is not able to independently use the rights belonging to him (ch. 2, Art. 33 of the CCP).

In accordance with Part. 4 Art. 319 Criminal Procedure Code, the court is considering a civil action, regardless of turnout civil plaintiff or his representative, if the claims of the prosecutor supported.

With regard to the duties of the civil party (private prosecutor), they coincide with the responsibilities provided for by law for the victim (Art. 8, Art. 75 CCP) with some exceptions.

In accordance with the Normative Resolution of the Supreme Court on June 20, the №1 «On consideration of the civil claim in the criminal process" [6] The burden of proof in a civil lawsuit in cases of private prosecution, in accordance with Art. 392 Criminal Procedure Code is assigned to the civil parties (private prosecutor), which should provide the court with relevant evidence necessary to protect their rights in connection with causing property damage or moral harm, and if you can not tell the judge where they are, and to apply for their preparation. The function of the court in this case is to assist the private prosecutor in gathering evidence in a civil lawsuit.

In the case of private prosecution to victims in cases not stated a claim in a criminal trial or a court claim is left without consideration, a lawsuit may be filed in civil proceedings.

The refusal of the court from taking civil action under the pretext of expediency consideration in the civil proceedings is not allowed.

The study of issues related to the procedural status of a private prosecutor and the person called on the complaint of a private prosecution, lead to the conclusion that some of them play an important role in ensuring the rights and legitimate interests of the participants in the proceedings, the legislator regulated or not fully or contradictory or not provided. These shortcomings of the law most clearly manifested in regulating civil action in cases of this category. So, h. 3 tbsp. 390 Code of Criminal Procedure and para. 4 Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On consideration of the civil claim in the criminal process" provide that the application of the private prosecution "may also include a request for consideration of civil action", in accordance with para. 20 Regulatory Resolution of the Supreme Court of Justice of 25 December of №13 "on judicial practice in cases of private prosecution": "In cases of private prosecution presenting issues, civil cases are governed by chapter 20 of the CCP." However, h. 2 tablespoons. 163 Chapter 20 Code of Criminal Procedure provides: "The civil action is brought in writing." From this it follows that the civil action in cases of private prosecution shall be presented in a separate document - a civil action. In this regard, in order to avoid contradictions between the h. 3 tbsp. 390 Code of Criminal Procedure and the specified statutory regulations, it is necessary to supplement paragraph 20 Regulatory Resolution "On judicial practice in cases of private prosecution":. And read as follows: "20. When considering a private prosecution cases presenting issues, civil cases are governed by Chapter 20 of the CCP with the exception of the situation provided for in Chapter 45 of the CCP. "

In this connection, it should also be pointed out that the provisions of Chapter 45 of Criminal Procedure Code does not implement the full requirements h. 2 tablespoons. 114 Code of Criminal Procedure, which provides that "the authority conducting the criminal proceedings must explain to each person participating in the criminal proceedings, he owned the rights and duties assigned to him." According h. 5, Art. 390 Criminal Procedure Code, the court, subject to clarification of the rights under Art. 76 and CC 4 and 6 tablespoons. 392 Code of Criminal Procedure. However, the law umapchivaet that in the event the private prosecutor claims that granted him h. 3 tbsp. 390 Code of Criminal Procedure, the judge must explain to him the civil rights of the plaintiff under Art. 77 Code of Criminal Procedure, and the accused - the right to a civil defendant, under Art. 78 Code of Criminal Procedure.

References

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2. Plenum of the Supreme Court of the Republic of Kazakhstan. On the practice of law. pravai regulatory obligations of persons. Victims of crime: Decree of 24 April 1992 №2 // Collection of Plenum of the Supreme Court of the Republic of Kazakhstan. (1992-2002 years). - Almaty: Norma K.2003.

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4. Criminal process. Textbook / Ed. KF Gutsenko. - M .: "Mirror". 2005.

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6. The Supreme Court of the Republic of Kazakhstan. On consideration of the civil claim in the criminal process: normative judgment of June 20, 2005 №1 // ' «Kazakhstanskaya Pravda" dated July 14, 2005 №186-187 (24796-24797).

7. Volkolup OV Chupshkin YB Guarantees of rights of members of the Russian Federation Criminal proceedings: Proc. allowance. 2nd ed .. Corr. and complementary. - Krasnodar: Kuban State University. 2005.