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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 [1]. 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 [2]. 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 [3].

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” [4].

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 moments.

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” [5]; purpose is “an anticipation of the result for that the action was made in the mind” [6].

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 [7].

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 [8].

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” [9]. 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 people.”

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 others.

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 behavior.

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” [10].

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 [11].

The word “notorious” is usually understood as “well known, undoubted (about something negative)” [12]. 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 [13]. 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 are obvious.

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 [14].

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 intent.

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 following peculiarities.

- 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 wishes it.

- 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”.

LITERATURE

1. Criminal law of the Republic of Kazakhstan. General part: Textbook for universities / Executive editor I.I. Rogov, G.I. Baimurzyn. - Almaty, 2003. - P.79 (the author of the chapter - Syzdykov M.N.).

2. Naumov A.V. Russian criminal law: the course of lectures. In 2 books. Т. 1. General part.-, 2004. - P. 225.

3. Criminal law of Russia. General part: Textbook for universities / Editors N.F.Kuznetsova and I.M.Tjazhkova. - M, 2004. - P. 246 (the author of the chapter - Tjazhkova I.M., Tkachevskim J.M.).

4. Yenikeyev M.I. Legal psychology: Textbook for universities. - SPb, 2004. - P. 438.

5. Philosophical dictionary / Editor I.T. Frolov. - M, 1980. - P. 228.

6. Philosophical dictionary/ Editor I.T. Frolov. - M, 1980. - P.406.

7. Yenikeyev M.I. Legal psychology: Textbook for universities. - SPb, 2004. - P. 88.

8. Criminal law of the Republic of Kazakhstan. General part: Textbook for universities / Executive editor. I.I. Rogov, G.I. Baymurzyn. - Almaty, 2003. - P.95, 97 (the author of the chapter - Rahmetov S.M.); Criminal law of Russia. General part: Textbook for universities / Editor N.F. Kuznetsova and I.M. Tjazhkova. - M, 2004. - P. 291 (the author of the chapter - Tjazhkova I.M., J.M. Tkachevskiy).

9. Prozumentov L.M. Legal meaning of a motive of a crime // Legal problems of strengthening of the Russian statehood: Articles P. 9 / Editor S.A. Yeliseyev. - Tomsk, 2002. -P. 24.

10. Kvictiniya A.K. Bribery and struggle against it / Editor G.A. Kriger. - Sukhumi, 1980. - P.82.

11. Budatarov S.M. Bribe taking: legal characteristic - Tomsk, 2004. - P. 20.

12. Ozhegov S.I. Russian dictionary: 70000 words / Editor N.J. Shvedova. - 1989. - P. 201.

13. Utevskiy B.S. General studies about malfeasances. - 1948. - P. 397-398.

14. The verdict of the Semipalatinsk city court (VKO) from January, 6th, 2003: Copies of verdicts of criminal cases on I session of the East Kazakhstan regional court for 2003. - B. 1



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