Право/5.Уголовное право и криминология

Iskaliyeva M.S., senior lecturer master of jurisprudence

Shatirishvili N.T., master of jurisprudence Chair ОUandSD faculty of FBP

Karaganda economic university, Republic of Kazakhstan

OBJECTIVE SIGN OF VOLUNTARY REFUSAL OF A CRIMINAL OFFENSE

Оne of problems of criminal law is the prevention of criminal offenses (Part 1 Art. 2 of The Criminal Code of the Republic of Kazakhstan). Criminal penalty is applied only then, when realization of this problem can't be reached other means. It is solved by various criminal legal means and mechanisms, one of which is the institute of voluntary refusal of commission of a criminal offense. Existence is recognized to stimulate socially useful behavior of the persons who entered the criminal-legal conflict to the interests of society and state protected by the law in the legislation of similar institute and to give the chance to such people at observance of a number of conditions to leave this conflict.

Precautionary material of the considered norm is quite notable, for the reason that voluntary refusal gives possible an exception of new attempts of commission of a criminal offense from refused finishing it up to the end even under more favorable circumstances, that is connected with transformation by a look of the voluntary refused.

With adoption of The Criminal Code in the Part. Part. 3,4 Art. 26 responsibility of accomplices at voluntary refusal is for the first time regulated. However as shows experiment of application of this norm, similar legislative definition is imperfect as it contains some defects and insufficient clarity in interpretation.

The solution of a question of existence of voluntary refusal is submitted to the most difficult, when the part of accomplices refuse commission of a criminal offense, and other part nevertheless commits a crime despite it ( trespass). Whether performers the measures which voluntary refused commission of a criminal offense to take for prevention of its commission have to from other collaborators, that at them voluntary refusal took place, or it is enough from their party of simple abstention from a criminal offense to exclude criminal liability? It is represented to us from the collaborators who refused partnership in commissions of crime ( trespass), in the majority of cases abstention from criminal acts suffices, that to recognize voluntary refusal on their party, even in case other collaborators commit a crime. Such point of view is shared by most of scientists-lawyers [1.Art 101].

Separate rules apply to the complex legislator complicity with the distribution of roles. Thus, the organizer and instigator of a criminal offense is not criminally liable if these persons to the State authorities or other undertaken measures have prevented bringing offense (misdemeanor) contractor to the end. Accomplice the crime shall not be criminally liable if the contractor before the end of the criminal offense to deny it in advance promised to assist or eliminate the results have already provided assistance.

In this case, the legislator the term "termination" contained in the general part of the rules on voluntary refusal treats more extensively and involves more than just the fact of leaving the previously started criminal activity, but there are a number of additional conditions.

So, for example, to the organizer and instigator for the recognition of his actions voluntary refusal included the duty to neutralize the (completely eliminate) the effects of which are in a causal connection with his previous behavior. In the case of the establishment of voluntary refusal from an accomplice requires active legal behavior, without the obligation to prevent begun perpetrator (misdemeanor).

In a similar assessment of the concept of "termination" There is significant resonance in its application to the individual actions of individual and complex complicity. That is the general rules contained in Part 1 of Art. 26 of the Criminal Code can not be applied to the organizer, aider and abettor, the provisions on voluntary refusal of which are contained in Article ch.ch.3,4. 26 of the Criminal Code.

On this issue, expressed a similar view, IA Tarkhanov, saying that "provided for by the law of the differences in the assessment of such a feature of voluntary refusal as a" termination "in relation to a) the individual actions of the person b) a partner in crime due to the nature of their previous (up voluntary renunciation) activity, the difference in their functions "[2, p. 191].

We agree with I.A. Tarkhanov and that the situation containing in p.1 norms on voluntary refusal should be considered extended only to individually character, and in this value it can't, in his opinion to apply for category of the general in relation to the provisions containing in p.p. 3, 4th Art. 26 of the criminal code of Kazakhstan. Respectively the last can't be considered as special.

The stated allows to draw a conclusion that the legislator when designing general provisions on voluntary refusal didn't consider that circumstance that the sign "termination" in relation to voluntary refusal at partnership with cast has to be treated in a broader sense, beyond this concept. That is, if the organizer, the helper or the instigator, following literal interpretation the concept "terminations", simply leaves the preparatory actions or action (inaction) directly directed on commission of crime, in this case in their relation only regulations on active repentance will be applied and criminal liability will in that case not be excluded, and is only softened.

For the purpose of avoidance of this sort of different interpretations in the future we offer regulations on voluntary refusal of accomplices to state in separate norm of the General part of the criminal code of Kazakhstan in the following edition:

1. The organizer and the helper, admit voluntary refused commission of crime and aren't subject to criminal liability if they the message to government bodies or other taken measures prevented finishing a criminal offense by the performer up to the end. 2. The instigator admits voluntary refused commission of a criminal offense and isn't subject to criminal liability if he before the termination by the performer of a criminal offense refuses to it in advance promised assistance or will eliminate results of already given help.

THE LIST OF THE LITERATURE

1. Skorilkin N. M. Voluntary refusal of a crime and its place in system of the circumstances exempting page 101 M-1998 from criminal liability

2. Tarkhanov I.A. Modern problems of the characteristic of voluntary refusal in a legislative regulation of its legal consequences \\Scientific notes of the Kazan state university T of 149 books of 6 pages 191 Kazan-2007