Список литературы:
1. Послание Президента Республики Казахстан Н. Назарбаева народу Казахстана 10 января 2018 г. http://www.
akorda.kz/ru/addresses/addresses_of_ president/poslanie-prezidenta-respubliki-kazahstan-n-nazarbaeva-narodu-kazahsta-
na-10-yanvarya-2018-g
2. Калинкович Л.Н. Раскрытие уличных разбоев и грабежей: Учеб. пос. – Омск: Омская высшая школа МВД СССР,
1982. – С. 24.
3. Приказ Генерального Прокурора Республики Казахстан от 10 августа 2015 года № 99 «О внесении изменений и
дополнений в приказ Генерального Прокурора Республики Казахстан от 19 сентября 2014 года № 89 «Об утвержде-
нии Правил приема и регистрации заявлений и сообщений об уголовных правонарушениях, а также ведения Единого
реестра досудебных расследований».
4. Разъяснение по порядку осуществления оперативно-розыскных мероприятий и негласных следственных дей-
ствий в условиях действия нового Уголовно-процессуального кодекса Республики Казахстан (указание МВД РК исх. №
1/25-3-17/4521-И от 30.12.2015 г.).
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Apakhayev Nurlan
candidate of jurisprudence, associate professor of the Academy "Kainar",
e-mail: apahaev_nurlan@mail.ru
Yermekbayeva Arailym
master of laws, the senior teacher of the Academy "Kainar",
arailym_ermekbaeva@mail.ru
CRIMINAL NEGLIGENCE AND ITS CRITERIA
The article reveals the concept, types and signs of careless guilt, the essence of negligence,
its psychological content. Reflects the specificity of levity: the intellectual and volitional moments,
carries out delimitation of levity indirect intent, defines the criteria for assessing the degree of criminal
negligence..
Negligence is characterized by the following features: a) the person's unforeseen possibility of
occurrence of socially dangerous consequences of his act or omission; b) the person's obligation to
anticipate these consequences; C) the person's ability to anticipate them.
In determining the General concept of guilt, it was found that guilt is a mental attitude of a person to
a socially dangerous act, assessed by morality and law as reprehensible and condemned. Therefore, in
order to substantiate the point of guilt in the concept of criminal negligence, it is necessary to indicate
the presence in it of a mental attitude to a socially dangerous act that deserves an disapproving moral
and legal assessment. The characteristic mental attitude of the perpetrator for his act if negligence can
be different:
The subject may be aware that he / she is violating certain safety rules without, however, anticipating
the possibility of socially dangerous consequences. This kind of negligence is possible. This kind of
negligence is possible, obviously, only in material compositions;
- The subject, making act, which bears the conscious strong-willed character, may not be aware that
with this act it violated certain rules and precautions;
- The act itself of the subject can be devoid of conscious volitional control, provided that the subject
could and should have been to prevent the condition that caused the absence of the conscious strong-
willed control, or to take measures to in this state to prevent the violation of legally protected interests.
In any of these cases, the subject is not aware, but is able and obliged to be aware of the socially
dangerous nature of the act. In the first two cases, this duty and the possibility of consciousness existed
at the time of the Commission of the act, in the third case, it was available to the subject in the period
preceding the emergence of the state that deprived the subject of conscious will control. It is relevant to
public danger separates negligence in the formal compositions of intent [1, p. 104].
The intellectual content of criminal negligence is characterized by two features: negative and positive.
The negative sign of negligence - the person's unforeseen possibility of socially dangerous
consequences – includes, firstly, the lack of consciousness of the public danger of the committed action
or inaction, and, secondly, the lack of foresight of criminal consequences.
In accordance with the law, a person acting negligently does not foresee the possibility of socially
dangerous consequences of his or her act or omission. Negligence is the only kind of fault in which a
person does not foresee the consequences either in the form of inevitable or in the form of the possibility
of their occurrence. Here in General there is no positive psychological connection between the subject
of crime and the criminal consequences caused by it.
A positive sign of the intellectual element of negligence is that the perpetrator had to and could have
foreseen the occurrence of the actual socially dangerous consequences.
The subject matter of negligence is determined, firstly, those circumstances who was aware of the
subject and consciousness which gave him the ability to foresee the consequences, and, secondly,
the circumstances, relevant evidence of a crime which a subject could and should have been aware
(anticipate). These two sets of circumstances are interrelated: the awareness of the former creates the
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possibility of the realization of the latter, and only together do they constitute the substantive content of
negligence.
Volitional contents to the negligence means:
- a willful decision on the choice of the method of social significant behavior;
- willed character committed by the guilty action or inaction;
- absence of willful acts of conduct aimed at preventing socially dangerous consequences.
In all its components, willful negligence is due to the negative nature of its intellectual element, the
fact that the perpetrator does not foresee the possibility of socially dangerous consequences.
Since the will of the subject is not directly related to the socially dangerous consequences (they are
not its product), the almost criminal negligence is established by its intellectual element. It is the only
kind of fault characterized by unforeseen socially dangerous consequences, and only in the absence of
such a foresight arises the question of guilt in the form of criminal negligence. This type of negligence
is determined by whether the subject should have and could have foreseen the occurrence of socially
dangerous consequences of his act. Necessity means an objective criterion, and the ability of foresight
is a subjective criterion of negligence [2, p. 90].
The establishment of a mental attitude to a socially dangerous consequence in case of criminal
negligence presents known difficulties due to the fact that a person does not have any foresight of the
occurrence of such consequences. This feature of criminal negligence as distinguished from intent and
from other types of negligence – criminal arrogance. On the contrary, the same sign is common to
criminal negligence and innocent harm. Consequently, the establishment of guilt in criminal negligence
is particularly important: it should not only define the boundary, which runs between criminal negligence
and the case, but in General to delimit the entire area of the culpable conduct against the innocent [3, p.
64].
The unforeseen possibility of socially dangerous consequences brings negligence closer to the
accidental, innocent infliction of harm, which is considered in the literature as an independent type
of mental attitude to socially dangerous consequences. Unlike negligence "case" is characterized by
a absence of objective or subjective criteria used in determining negligence as a form of guilt. In the
literature, as well as in judicial practice, "case" as innocent causing harm is usually proved by lack of
opportunity to foresee and prevent socially dangerous consequences. In addition, article 10 part 2 of the
Criminal law of the Republic of Latvia provides for the absence of criminal punishment, "if a person
did not foresee, he did not need to foresee or it could not foresee the possibility of occurrence of the
consequences of his act or omission."
Accidental infliction of socially dangerous consequences may be caused by the absence of an
objective criterion of negligence, i.e. the obligation to foresee harmful consequences. An example of
such a "case" is a criminal case against a person who, by Smoking, threw a burning match into a barrel
of gasoline lying by the road and caused an explosion of gasoline vapors. With the explosion of the
bottom of the barrel flew out and hitting a passerby caused him a fatal wound. The court concluded
that the death of a passer-by had occurred as a result of an accident, since it was not the duty of the
person to foresee and prevent the consequences that had actually occurred, and therefore caused serious
consequences without fault.
The innocent infliction of socially dangerous consequences can be caused by the simultaneous
absence of both objective and subjective criteria of negligence. Thus, the Plenum of the Supreme Court
found unfounded the conviction for careless murder of a person who, collecting grass for cattle, did not
keep track of a child who came with him, who fell into the river from a cliff and drowned. When the
child fell into the river, he rushed into the river to save him, but to no avail. Under such circumstances,
he should not and could not foresee the possibility of the death of anyone, and therefore the incident
should be considered an accident.
In the considered types of" case "there is no" moment of fault", that is the basis for criminal and legal
reproach, and consequently, and for criminal liability.
The basis of careless crimes is always generated by the careless mistake of a person that caused,
in some cases stipulated by law – which created the risk of causing such harm. Moreover, this error,
which the subject could and should have avoided, prevent, is an uninvolved error. It concerns the
assessment of the situation causing properties, commits an act of force factors against the onset of
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harmful consequences, etc first of all is the specificity of the causes of careless crimes in contrast to
crimes of intentional.
The source of this error is the interaction of the person with the tools or means of the act in a certain
situation. For a mistake to be found guilty (and thus negligence to be established), it is necessary to:
- first, the situation or the instrument (means) give the person information, signal the possibility of
causing harm to the society, the danger of the committed act;
- secondly, it is necessary that the situation or the instrument create an objective opportunity for a
person to avoid this harm;
- thirdly, it is necessary for the individual to be able to perceive and understand this information, to
make the right decision on its basis and to implement it, thereby avoiding causing harm to society. When
committing a careless crime, this ability is unrealized and the society is harmed.
The situation is understood as the objects and processes of the external world, which the subject
faces, touches in his daily life and professional activities. Instruments and means are those objects and
processes that a person uses in practice to achieve his or her goals.
The specific cause of the careless crime is the interaction of the person with the dangerous situation
and dangerous instruments (means) of the act. This is a significant feature of the causes of careless
crimes, unlike the causes of intentional crimes. In premeditated crimes, the instrument is deliberately
chosen by the subject to cause harm to society, and in the Commission of careless crimes, the instrument
acquires a known independence. Its use to the detriment of society is not included in the sphere of
conscious activity of the individual.
The interaction of the person with the situation and the instrument of the act is the interaction of
the subjective and objective. Reckless infliction of harm is the result of contradictions between the
requirements to face the objective situation and the instrument, and the subjective moment of human
behavior. Identity in these cases is "insolvent" before the demands of the situation. Weapon (medium)
is out of control man, and it either reaches the goals it has set, or "exceeds" them, and there comes an
unexpected public threat result [1, p.31].
Objective elements of careless crime-the situation and the tool (means) – create only possibility of
causing harm to society. This possibility is realized as a result of the behavior of the perpetrator, i.e. the
action of the subjective (personal) factor. Why does a person who does not want to harm society and
does not allow it consciously, that is, seeking to avoid this harm, not use the opportunities that remain
for this in the situation and the instrument? After all, it is assumed that the person was able, could avoid
causing harm in this situation. This is due to certain psychological defects carelessly acting person,
leading him to a violation of the safety rules. They can be divided into three groups, which, however,
does not exclude their interlacing:
- defects of perception and information processing (the subject did not take the available information
about the importance of following safety precautions, do not realize the information they perceived,
correctly assessed her, making erroneous conclusions);
- defects of the decision (the subject did not find a solution that would eliminate the harm to society,
made the wrong decision);
- defects of action (the subject was unable to perform the action necessary to prevent the harmful
effect).
Such defects, leading to careless infliction harm can be rooted and in intellectual, and in strong-
willed, and in emotional, and in other areas personality. Psychological roots of negligence, ie, negative
personality traits that give rise in certain situations, reckless crimes are, as a rule, levity, carelessness,
disregard for the rules of precaution, azoreductase on the job, lack of attached characters, etc. they can
All be United by a common concept carelessness.
Negligence, as a form of guilt, is possible not only in material compositions, but also in formal. The
only thing that in formal tort logically excluded arrogance. If a subject commits a socially dangerous act
and is aware of it, he may not, even though frivolous, count on preventing such an act, or count on his
act to cease to be dangerous. In formal structures, the danger is the most General, abstract characteristic
acts in various forms. It acts as an immanent property of the act. Therefore, her consciousness leaves
no room for any assumption that, in the presence of certain circumstances (which could be expected to
result in crimes), the actual side of the act at some point will lose its inherent social property.
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This is not the case with negligence. In legal terms, negligence means nepredvidennye consequences
of the acts under necessity and possibilities of their foresight. But from a psychological point of view,
the contingency of any expected change in the outside world is the same as the prior ignorance of the
facts pertaining to the future. In this sense, "unforeseen" and "unconscious" are terms of the same order,
and the difference between them lies only in the fact that the first of these terms is used in relation to the
future (expected), and the second – in relation to the present (already happening).
Therefore, if at all it is possible to speak about carelessness in formal structures, it is necessary to
operate the concept of awareness. In particular, since the objective side of such compositions does not
imply any consequences or causation, carelessness may have to be characterized as ignorance of the
socially dangerous act itself, if possible, and should be aware of it. [4, C 104]
To formal compositions, admitting in principle responsibility for negligence, all psychological and
socio-normative elements are attached, of which the legislative formula of careless fault. They are: the
unconscious (the unforeseen), the duty of the conscious (the foresight) and the subjective possibility of
the conscious (the foresight). The specificity lies in the fact that in its totality all these elements relate
exclusively to socially dangerous act. In formal structures the objective party of crime is presented in
the form of one single sign – socially dangerous act. Therefore in them the maintenance of careless fault
can be actual and social elements only of the act.
Preparation, attempt and complicity are impossible in the Commission of careless crimes. Complicity
is the participation of several persons in one single offence. This unity of the crime committed by the
accomplices is expressed, firstly, in the fact that the actions of all the accomplices are causally related
to the socially dangerous result that occurs as a result of combined actions. This unity is expressed,
secondly, in the fact that all the partners deliberately direct their activities towards achieving the same
criminal result. But, of course, it is impossible to talk about one single criminal act where some persons
act intentionally, and others carelessly. The coincidence of such different forms of guilt, such as intent
and negligence, cannot bring about the unity of the criminal act. Carelessness is a lighter form of guilt
and essentially differs from intent.
There can be no complicity in cases when all the participants of the committed crime act carelessly.
The unity of the crime of complicity is created by the conscious direction of the will of all jointly acting
persons to carry out one act, and this conscious direction of the will to one single criminal consequence
is not in cases where all participants in the act act carelessly. [3, with 104]
Thus, the composition of the crime as a means of separating criminal acts from non-criminal acts
and as a means of establishing a varying degree of public danger of acts prohibited by Criminal law is
crucial for combating socially dangerous encroachments on the basis of a single rule of law. Criminal
law considers the use of punishment to be justified only if the conduct of a person threatens the existence
and integrity of objects protected by the rule of law. Not everything that is a danger to the community,
is at the same time, the illegal in a legal sense. Only a certain degree of social danger makes the act
criminal. Therefore, negligence in crimes is essential and is the basis for criminal prosecution.
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