Ïðàâî/1. Èñòîðèÿ ãîñóäàðñòâà è ïðàâà
Saktaganova I. S.,
Associate Professor, Department of Theory and History
of State and Law, constitutional law, Candidate of Law
Eurasian National University of L.N. Gumilyov, Astana, Kazakhstan
Ansaganova
A.,
The 3rd year
student of the specialty jurisprudence of the Eurasian national university
Named after L.N. Gumilev, Astana, Kazakhstan
Saktaganova
A. B.,
The 2nd year
student of the specialty psychology of the Eurasian
national university
Named after L.N. Gumilev,
Astana, Kazakhstan
Decision of disputes on the Kazakh territory by
traditional way
The
Kazakh law is the cultural value of Kazakh people and all nomadic civilization.
It caught the attention of the world by Millennium historical specificity and vital,
by characteristics which support human freedoms. In the great steppe, fall of
glory and rule of the Kipchaks, who formed the basis of nomadic civilization,
accordingly impact on the decline of authority and role of the Kazakh legal
culture. This contradiction can be explained by keeping the “freedom” ability
of the great steppe, “stand- alone” position in the Kazakh Constitution.
However, outburst of cultural and economic stagnation, leaving behind the
developed countries in mid- century Kazakh steppes affect to society
development. The vast territory of Central Asia has been pushed to the last
line of history and forgotten for a long time. Through the policy of
colonization by foreign countries the Kazakh society began to enter to the
surface of history. These changes have been reflected in subsequent destiny of
Kazakh law and assessment of it.
One of
the well- known researches D. Samokvasov who knows tiral systems of Russian and
European well, researched the Kazakh law in 1820. The great doer of the
national culture S. Seifullin, who lived in Kazakh steppes between XIX and XX
centuries, specifically described the reality and nature of Kazakh biy. He
said: "The country's archaic upcoming road projects, customs, tradition,
the tradition of the law, collections, the former chronicle, moral, exemplary
knitted a lot of words to memory, heart say," power "from the leaders
of the patriarchs, born of living for themselves and their beautiful pairing of
words, who was able to tell comply with speakers as biy" he wrote [1,102].
Mediation is an alternative way to resolve disputes. The word Mediation
in Latin means an intermediary that is a third party who helps two sides to
reach a compromise. Mediation method is the only way to ensure justice, purity
in the judicial process, which is based on the satisfaction of both parties to
reach an agreement through negotiations. To reach an agreement with the
participation of a neutral intermediary in the developed countries was formed,
legalized before [2,20].
Even
the judge during the consideration of these issues, with a view to reach an
agreement with the wishes of the mediators of disputes has become a trend of
recourse to the mediators. For example, the dispute between the parties before
the court in the United States successfully resolved 95% of reconciliation and,
in the UK the figure is 87%, 37% in Slovakia. Experience Mediation is used in
China, Germany, Hungary, Korea. In German schools are implementing a course of
mediation and the students are taught him. According to world statistics,
30-40% of disputes go through mediation and 80-90% is being resolved. Even in
the Soviet era, decided to use the method of mediation in criminal cases in the
Republic of Lithuania and Moldova, it showed good results and save millions of
state finances. In Russia, the law on alternative dispute resolution procedures
by regulation of intermediaries, was adopted on 27 July last year, and came
into force on 1 January this year. Mediator is not intended authority of the
judge, the right to make decisions and execute it; on the contrary, he tries to
solve the dispute between the parties by the peace agreements. If it takes
precedence of quality as bitterness between the parties of dispute,
stubbornness, pride, tendentiousness in the case of an obstacle to effective
decision of agreement will need help intelligent, authoritative neutral
intermediary.
Basically,
the law mediation is considered an effective and promising, one of the good
steps in restoring the practice of traditional customs which was praising by
the ancestors and traditional biy of Kazakh people.
In the
message "Kazakhstan-2050" new political direction of the state with
an adapted strategy "of the Head of State Nursultan Nazarbayev to the
people of Kazakhstan was shown the requirements and instructions to create
reforms in new directions to human rights bodies [3, 5].
There
is drawn an attention to the Criminal Code of the Republic of Kazakhstan to
re-examine and to implement it with new changes and amendments, re-released a
new.
He gave
tasks to reform the judicial system, not only in the message this year, it has
also been written in the Message, so called future we build together, before
addressed to Kazakhstan people, now it gives results , and making positive works.
Were introduced
legal mechanisms for the protection of property, the humanization of criminal
law concerning crimes not posing greatest threats to society, have been
expanded areas unrelated to the deprivation of liberty, as an alternative
punishments to the arrest. As a result, this year have been released from
prison two thousand people convicted of crimes of mild to moderate severity,
"mentioned the above message [4,158].
Due to
job cuts as a result of the global financial and economic crisis, the rise of
certain types of crime has been shown in statistics. Particularly, the increase
in small theft, fraud and other such minor crimes among adolescents, women and
girls creates anxiety. Their detention, involvement in the criminal liability,
arrest brings no benefit and advantage. It is better to implement and use
several useful practices of our traditions as compensation for losses,
reconciliation. Because everyone knows the great word of our ancestors as'
anyone can make a mistake, everyone can lose. "
The
main purpose of justice is not to apply only penalties for offenders and
protect the rights and freedoms of people and restore them. Humanization of
criminal law in our country is carried out in two different ways. The first is
to remove from the law articles, considering minor offenses; the second is to
reduce procedural character considering reconciliation on both sides, and
recovery.
Nowadays
its known from statistics that conflicts are increasing, a number of people,
who apply to court is rising every year. In order to reduce them, so as in
basis of life practice above to humanization criminal law was accepted the law
“On Mediation” of the republic of Kazakhstan on 28 January, 2011. Around this
law sages of biys, weighty mouth, speaking the words in the rational, the fire,
the language of the harvest biy and ancestors, the leader of the speaker elders
and ancestors, fair, accurate cutting off a big country, and that, known to all
that the direction of the solution to the reconciliation traditional practice. This
is certainly, valuable experience growing out from a centuries-old practice of
vital customs and traditions of the Kazakh people, is not it? Nowadays its
known from statistics that conflicts are increasing, a number of people, who
apply to court is rising every year. Everyone knows that practice such as
reaching an agreement, reconciliation, forgiving each other have been in the
past history of our nation. The Kazakh people have such wonderful words with
deep meaning as "Reconciliation is the peak of the dispute", is not
it? We should expect that mediators will have the properties of such
commandments. The local executive authorities should maintain a list of
mediators and this regulated and determined by law. Of course, during the
selection of mediators should be a large demand. Because on the selection of
mediators, life, experience, experience, the higher the possibility of the
participation of judges and their results should be known by a specified
believe.
In
general, the law mediation is one of the right steps in restoring traditional
practices, clarified by ancestors and traditional by of Kazakh people and it
promises to bed perspective and efficient.
The
list of using literatures:
1. Akhmetov S. The magazine «Law» «Mediation- alternative method on optimal
decision of the dispute» // ¹6 2010,p.41
2. Seifullin S. Compositions, VI tome, Zhazushy 1994, p. 300.
3. Nazarbayev N.A. The message
for people of Kazakhstan called «Kazakhstan-2050» new political direction of
the state with forming strategy»
23:11:34
4.
Zimanov S.Z. The trial of kazakh biys- unique judicial system // Almaty Atamura
2008, p. 212.