К содержанию номера журнала: Вестник КАСУ №3 - 2006
Автор: Сухоносенко А.В.
Bribe taking as one of the forms of corruptive
crimes is the most dangerous and highly latent infringement of the interests of
state service and state management. For the complete objective and thorough
evaluation of socio-political and legal essence of bribe taking the
determination of the objective characteristics is as meaningful as the
determination of the subjective characteristics.
The legal construction of the basic structure
of bribe taking (part 1 article 311 of the Criminal Code of the Republic of Kazakhstan) contains sufficiently full description of
characteristics of the actus rea of the crime, while the characteristics of the
men’s rea are beyond the disposition of this norm. Because of that in order to
avoid difficulties that arise in process of bribe taking qualification and also
to secure the legitimate interests of guilty person and for securing legality
it is appropriate to address this question to the theoretical aspects of the men’s
rea of bribe taking.
There are different approaches to the definition
of men’s rea in legal literature.
According to the opinion of the one group
of researchers, men’s rea might be defined as a psychological attitude of a
person to his\her deed and to the consequences . From the point of view of
the others, the essence of the men’s rea is in the psychological/moral attitude
of the guilty person to his\her deed that is provided by the Criminal Law as a
crime . Some scientists consider that the men’s rea of a crime is a
psychological activity of a person that is directly bound to committing of
a crime and is the internal essence of any crime .
It is seen that from these definitions of
men’s rea the first one is consistent only with the crimes with the material
structure (the crimes that are ended only after the consequences of the crime
had come), the second is consistent to the crimes of different constructions of
the structure, and the third is too indefinite and incomplete. According to
this the second definition is the most valid.
The men’s rea as the one of elements of the
structure of a crime is characterized by the following characteristics: guilt,
motive and purpose, where the guilt is the mandatory characteristic and the
motive and the purpose are optional (not mandatory).
Presence of guilt pursuant to the principle
of guilty responsibility (part 1, 2 article 19 of the Criminal Code of the
Republic of Kazakhstan), to the definition of a crime (part 1 article 9 of the
Criminal Code of the Republic of Kazakhstan), and to the definition of the
structure of the crime is the mandatory characteristic of any structure of a
crime and is included in grounds to the criminal responsibility.
The definition of guilt as psychological
attitude of a guilty person to his\her socially dangerous deed and to the
consequences, that is expressed in the form of intent and negligence in the
science of criminal law is traditional. The guilt has psychological,
socio-political and criminal legal contents.
Legal Psychology gives much more complete
definition: “Guilt is the connection of the personal properties of a human to
the illegal or amoral deed; the ignorance of social interests from the side of
a person which serves as a ground for prosecution” .
The forms of guilt (intent, negligence, double
form of guilt) directly provided by the criminal law (articles 19-22 of the
Criminal Code of the Republic of Kazakhstan) and are characterized by the content of intellectual and volitional
For deeper understanding of the essence of
the motive and the purpose of a crime it is necessary to know the philosophical
understanding of these concepts. According to the philosophical dictionary
motive is “a deliberate impulse that stipulates the act for fulfillment of a
need of a man” ; purpose is “an anticipation of the result for that the
action was made in the mind” .
From the position of legal psychology motive
is a deliberate choice of a purpose and purpose is a system making factor of
all components of an act and it also regulates deliberation of the choice of
the proper means to reach it .
The criminal legal interpretation gives the
following meaning for the motive of a crime: the motive is the inner impulses
stipulated by the certain needs and interests that produce the decision of a
person to commit a crime. The purpose of a crime is an idea of a person that
commits a crime about wishful result that is being reached by the means of a
crime commitment .
L.M. Prozumentov gives the following remarkable
definition of the motive of a crime. He defines the motive of a crime as
“deliberated by the person (deliberated need) aspiration to reach the purpose
of activity by the means of crime commitment” . It is really seen from this
definition that the concepts of motive and purpose are dialectically bounded.
As it was said before the textual analysis
of the disposition of the basic structure of bribe taking shows that the
characteristics of men’s rea are beyond this norm. Indirect instruction about
that is contained in the decree of the Supreme Court of the Republic of Kazakhstan dated December, 13 2001 № 18 “About the Practice of Consideration of Criminal
Cases about Corruption by the Courts”. The following is said in the point 9 of
this document: “…when the corruptive crime is being committed, the purpose of
it is the committing of intended illegal actions by an official with the help
of his\her office in the interests of others which is connected to the illegal
taking from them reward, property and benefits for the official or for other
The analysis of legal literature lets to
say that the majority of researchers consider bribe taking as a crime committed
with the direct intent and with the presence of mercenary motives.
The position of Kazakhstani (A.N. Agybayev,
B. Amrekulov, I.I. Rogov and others) and Russian (A.A. Zhyzhylenko, B.V. Zdravomyslov,
B.V. Volzhenkin and others) authors that the direct intent is typical for the
structure of bribe taking is fully justified and may hardly be challenged.
The content of the intellectual moment of
the direct intent of bribe taker must include the deliberation of socially
dangerous nature of the deed, which in its turn connected to the deliberation
of all legally meaningful characteristics of the actus rea of a crime. The content
of the volitional moment includes the desire to commit a crime
Considering the fact that all bribes are
divided into two groups depending on the time of bribing they are: 1) bribe
before the act of an officer and 2) bribe the bribe after the act of an
officer. Consequently, it is necessary to determine the content of the
intellectual and the volitional moment in every of these cases separately.
When the first group of the bribe occurs
the guilty person is aware that he\she is getting the illegal reward before
doing or not doing the act in interests of the briber or other people using
his\her office, before promoting such actions, before protection or connivance
of an action, and wishes it.
When a bribe gets into the second category
the guilty person is aware that he\she is getting the illegal reward after
doing or not doing the act in interests of the briber or other people using
his\her office, after promoting such actions, after protection or connivance of
an action, and wishes it.
It is appropriate to say that in both situations
a guilty person understands that his deeds that form bribe taking and illegal
usage of the office harms or creates a real menace of harm to the
interests of state service or state management and undermines their authority.
Furthermore intellectual moment of direct
intent of men’s rea of bribe taking includes such perceptual processes of
personal psychics as attention, perception, memory, thinking, imagination. A
guilty person perceives the information about the future bribe stores it in
his\her memory, makes intellectual analysis of possibilities to use the taken
bribe. At the same time this guilty person evaluates the probable risk of
disclosure and prosecution.
Thus in the intellectual aspect a guilty person
is aware of:
1) His\her office, official functions, the
power and the possibilities of this office;
2) The fact of bribe taking and the connection
of it with his\her office;
3) The possibility to perform an act or inaction
in the interests of a briber.
4) The socially dangerous nature of carrying
out his\her official functions and powers.
The volitional moment consists not only in
a wish to commit an act of bribe taking, but in such an aspect as the struggle
of motives and the forming of the leading motive, the motive that determines
the subsequent activity of a subject. For instance there could be the competition
between such motives as: the thirst for power; mercenariness and the fear to
risk the image, office status and so on.
In volitional terms that are associated
with the intellectual moment the men’s rea of bribe taking consists not only in
awareness to take the bribe and to use the office in the interests of a briber
in exchange for it, but as well in the choice of the leading motive in the
preference of the variant of actions which will be defined as the bribe taking.
Besides it’s hard not to mark the role of
the emotional moment. Though it is not necessary in the analysis of the essence
of the guilt forms, but it’s not acceptable to deny the influence of emotions
on a person’s behavior. Emotions are the form of reflection of the reality
manifested in feelings. They are formed by passions, mood, the state of stress,
temporary insanity and frustration. Certainly a bribe taker does care about
what he\she does. This person experiences the range of different feelings:
satisfaction, joy, delightment, pleasure, impunity, self-affirmation and
Accordingly emotions determine volitional
activity of an officer, arising and provoking his\her wish to take the bribe.
For sure, such an aspiration of a guilty person influences his\her intellectual
The peculiarity of bribe consists in a fact
that it is formed from the actions of a briber and a bribe taker (in some cases
also a mediator in a bribery). Because of that the intellectual moment of the
direct intent of a bribe taker must include the understanding of the fact that
a briber knows about the illegal nature of the taking by an official the reward
for acting (not acting) in the interests of a briber using the office. This
circumstance might not be ignored in the process of qualification of the act of
a bribe taker.
As A.K. Kvicinia fairly noticed: “There is
no structure of a crime of bribe taking if the one who passes material values
does not consider them as a bribe, but thinks that this is legal delivery of
material values” .
There is an interesting novelty of S.M. Budatarov
who offers to include in the basic structure of a crime of bribe taking the
feature of notoriousness, which as he considers, characterizes bribe taking as
a mercenary intentional crime that interferes with the interest of the state
and the public service .
The word “notorious” is usually understood
as “well known, undoubted (about something negative)” . Yes, a guilty person
takes a bribe knowing its illegal nature and this person wishes it. In
other words, this person commits a crime with the direct intent. Although it’s
not appropriate to forget that the usage of special methods of legislative technique
in construction of criminal norms of right lets the legislator point or
not point the form of guilt in the disposition of a norm. As a basic rule the
form of guilt might not be pointed in the disposition of a criminal norm of
right if the nature of a committed deed shows this form. Considering all that
was said above, bribe taking as to its definition is a crime which can be committed
only with the direct intent, which undoubtedly includes the characteristics of
notoriousness. That is why including this characteristics in the disposition of
that criminal norm of right is needless.
As it was marked above, the majority of
scientists (A.A. Zhyzhylenko, B.V. Zdravomislov, N.P. Kucheryaviy, I.A.
Gelfand, S.I. Tihenko, V.A. Vladimirov, V.F. Kirichenko, A.Y. Svetlov. N.I. Korzhanskiy,
U.I. Lyapunov, I.S. Borchashvily, A.K. Kvicinia, B. Amrekulov, A. Agybayev and
others) consider the bribe taking as a purely mercenary crime.
Though, this point of view appears to be
rather disputable. Because of some facts, it might not be said that the bribe
taking includes only mercenary motives. First, there is no strait indication to
the purposes and motives of this crime in the law. Second the judicial and the
investigatory practice shows that the bribe taking in some cases is committed
with another motives.
Characterizing the men’s rea of the official
crimes, including the bribe taking, B.S. Utevskiy rather justly marked that the
motives of could be mercenariness, revenge, love, hate, envy, the sense of
rivalry, careerism and others . It is should be that the polimotiveness of
that kind should be the attribute of the bribe taking.
The study and the analysis of the judicial
practice really shows that in many cases a guilty person in spite of the just
allocation of material values, using his\her office, aspires to improve his\her
welfare, to support the family, take care about it, so here the mercenary motives
The main specialist of the state inspection
of the state monitoring of extreme situations and the technical monitoring of
the city of Semipalatinsk, state agency “The Board of Extreme Situations of the
East Kazakhstan Oblast” B. is sentenced for the bribe taking in the form of
money in the amount of 22 200 tenge. He got this bribe from the mechanic of
“Zaulim-Zangar” ltd. Z. for the registration and the permit to exploit a
lifting crane without giving of the special documents. The court determined
that B. committed the crime with the direct intent and with the mercenary motive,
because he wanted to provide the material support for his family that consists
of the idle wife and two kids .
Although, there are other circumstances of
committing that kind of a crime. If an official taking an illegal reward and
using his\her office decides his\her personal questions (like appointing a kin
to the high salary office, releasing the vacancy for a compatriot, giving the
privileged credit (loan) to a “needed person”) the motives of support,
development and reinforcement of clannish, patrimonial, tribal, class,
corporative, kindred relationships are taking place (tribalism).
Besides the bribe taking might be committed
with the motives of discrimination; falsely understood interests of service
(when a guilty person mingles bureaucratic, personal and state interests); the
motives of the self-affirmation in the social and the psychological levels; the
motives of a political nature (the aspiration to loose, undermine the normal activity
of the state); careerism; conformism (“I do like others do”); the motives of
the compulsion (the demand from the side of the third person not to stand out);
personal motives (dislike, revenge, envy, hatred, love, sympathy, compassion,
philanthropy); intimate, sexual impulses and others ones.
Considering the motives of the bribe taking
it’s impossible not to mark the value orientations of a guilty person which is
the structural component of it. These orientations are on a very essential
position in a sphere of requirements and motivations sphere of every person.
These values might be of a positive or a negative nature. An example of
positive one is a welfare of a family. This value has a very positive
nature, but in the mind of a guilty person it is broken in the awareness to
breach the law in the material interests of the family. Negative value
orientations could be seen in hypocrisy, cynicism of a bribe taker who thinks
that he\she can’t be punished.
In the structure of a crime of the bribe taking
the purposes are not pointed as well as the motives that are why the purposes
might be of a very different nature. For instance, a guilty person, by committing
a crime, aspires by the means of use of the office to reach the higher level of
the welfare, to decide his\her possessive or personal problems, reinforce the
clannish or the corruptive relations and others.
These motives and purposes of the bribe
taking prove that that this crime could only be committed with the direct
Based on the all that’s said above it is
obvious that when the bribe taking is committed the indirect intent and the
negligence is excluded.
Thus as applied to the legal construction
of the structure of a crime of the bribe taking, its men’s rea will have the
- It is characterized only with the direct
intent as a form of guilt, because an official is aware that he\she is taking a
bribe for the factual use of the office in the interests of a briber and he\she
- It is notable for the variety of the motives
and the purposes.
Since the motives and the purposes of the
bribe taking are beyond the structure of this crime they are not necessary
characteristics of this crime, they are not included into the grounds for the
prosecution for this crime, they don’t influence on the qualification of this
crime, but they have an essential meaning for the definition of the social
danger of a deed and the person that committed this crime, also they could be
taken into an account while the determination of a kind and amount of the
penalty for this crime as aggravating or mitigating circumstances.
The Criminal Procedural Code of the
Republic of Kazakhstan establishes that, the following must be proved
when the criminal case is initiated: among the other circumstances the guilt of
a person in committing the deed that is prohibited by the Criminal Code of the
Republic of Kazakhstan, the form of his\her guilt, the motives of the crime
(part 1 article 117 of the Criminal - Procedural Code of the Republic of
Kazakhstan). There is an analogous requirement in the point 15 of the normative
decree of the plenary session of the Supreme Court of the Republic of the Republic
of Kazakhstan, dated August, 15 2002 № 19 “About the Judicial Sentence”.
Though the study of the judicial practice
shows that in the content of sentences only in some cases the form of guilt,
its kind, the motives and the purposes of a crime are marked. Doing this the
courts infringe the norms of the criminal-procedural legislation (part 1
article 117; part 3 article 278; part 1 article 371; part 3 article 375; part 3
article 376; part 1 article 379 of the Criminal Procedural Code of the Republic
of Kazakhstan) and the normative decree of the plenary session of the Supreme
Court of the Republic of Kazakhstan, dated August, 15 2002 № 19 “About the Judicial
Sentence” (point 5, point 15).
Summarizing stated facts it is appearing
necessary to include in existing decision of the Supreme Court of the Republic
of Kazakhstan, dated December, 22 1995 № 9 “About the Practice of Applying by the
Courts the Legislation about the Responsibility for Bribing” (with the changes
established by the decision of the Supreme Court of the Republic of Kazakhstan,
dated December, 20 1999 № 20) the next: “The bribe taking is could be committed
only with the direct intent as the form of guilt, and the intent as a rule has
the deliberate nature. Indirect (eventual) intent is excluded. The motives and
the purposes of the bribe taking could be different (mercenariness, falsely
understood interests of service, self-affirmation, careerism, conformism,
personal, sexual motives and others) and don’t influence the qualification of a
crime, but could be considered while sentencing or applying other norms of
criminal right character”.
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К содержанию номера журнала: Вестник КАСУ №3 - 2006