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General characteristic of the criminal common law of Kazakhs
accomplished during the reign of Burunduk-khan, with his consent and after it he became the Supreme governor of the khanate, were successful and consequently, that he used growing sympathy of the population of neighbouring countries to his internal policy. This policy has consisted in a universal recognition and expansion of authority of national assemblies, ancestors and biy courts, and also force of common — legal institutes in the Nomadic communities. A policy of restriction of intervention of ecclesiastics in affairs of nomads of Kipchak steppe zone carried out by Kassym-khan was very important. Certainly, in successful military operations of Kassym-khan the paramount role was played by that he managed to create the efficient army growing on number consisting from sarbazes, trusting in him and following after him. Kassym-khan has restored the force of the army regulationsof kipchaks: “Khan boryshy j oryqqa tu kqtery, sarbaz boryshy tugha erip jan beru” — “The duty of khan to lift a banner of
a campaign, and the duty of sarbaz (soldier) to follow a banner and to give the life”. At the same time he has established, that the decision of a question on fulfilment of campaigns should be approved by people. This new word is formulated rather indicative in substantial and brief saying: “Batyr bolsan joryq bolsyn, joryq joly maqyl bolsyn”, “Let will be batyrs, let there will be campaigns which approved by people”.
One of the chronicles of that time carries Kazakh khanate to number of “glorious” within the limits of former possession of Chinghiz-khan. As he said “Kazakhs who are famous all over the world by power and fearlessness” live in this limits. Further it is underlined, that armies of Burunduk-khan and Kassym-khan were terrible powerful both by number, and by bravery.
Under orders of the Kazakh governors, “at the same time were gathered four hundred thousand quivers of bogatyrs, each of which was equaled to ten of to valiant soldiers”.
References:
1. Yudin V. P. Centralnaya Azia v XIV-XVIII vekah glazami vostokoveda. - Almaty, 2001.
2. Drevnetyurkskaya civilizatsia: gfmiatniki pismennosti. - Almaty, 2001.
3. Atygaev N. A. Kazakhskoe khanstvo v XV - seredine XVI veka. - Almaty, 2003.
4. Pichulina K. A. Yugo-Vostochnyi Kazakhstan v seredine XIV - nachale XVI vekov. - Alma-Ata, 1977.
Useinova Gulnara Rakhimzhanovna, doctor of juridical science, professor, Department chair of theory and history of the state and law, constitutional and administrative law, Al-Farabi Kazakh National University Useinova Karlygash Rakhimzhanovna, candidate of juridical science, associate professor of department of theory and history of the state and law, constitutional and administrative law, Al-Farabi Kazakh National University E-mail: sergei —[email protected]
General characteristic of the criminal common law of Kazakhs
Abstract: The Kazakh common law didn’t know accurate definition of the concept “crime”. The crime was understood as “bad business”, “bad behavior”. Accurate differentiation between a criminal offense and tort in the Kazakh common law didn’t exist. Deliberate acts assumed existence of direct intention, in all other cases unintentional acts took place. For qualification of crimes played also elements of the subjective party large role, as a way, a place and time of commission of crime. From the point of view of a place of its commission, the crime committed in a native aul was considered as the most serious crime. It was punished more strictly, than the crime committed in others aul.
Keywords: common law, crime, the death penalty, the corporal punishments dishonoring punishments, delivery of the victim guilty to the party, exile from tribal community, kuna, aip.
In the pre-revolutionary Kazakh society which wasn’t had the extreme social and regulatory and administra-
knowing the written right, usual and legal establishments tive importance.
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The Kazakh right having more than long history, stepped over the era. Prior to the beginning of the XX century the Kazakh common law continued to keep the regulatory function. The academician S. Z. Zimanov explains such durability of the Kazakh right with two factors: first, economic and household and world outlook bases of a nomadic civilization in the extensive territory. In-the second, the maximum approach of the Kazakh common law to the people, to logic of his life [1,17].
However, despite an ancient origin of a common law, it became object of detailed studying and the analysis only since the XIX century.
Conditionally in studying of the Kazakh traditional right it is possible to allocate three main stages:
• The I stage — the period with XIX prior to the beginning of the XX centuries;
• The II stage — the period from 1917 (a victory of October revolution) to 1990;
• The III stage — the period since 1991 to the present [2, 4].
The first attempts of studying of a common law of Kazakhs were made in XVUI-XIX centuries. Thanks to notes, notes and works ofsuch researchers of edge, as N. A. Aris-tov, L. F. Ballyuzek, S. B. Bronevsky, Ch. Ch. Valikha-nov, V. V. Velyaminov-Zernov, E. S. Vulfson, Ya. Gur-lyand, A. I. Dobromyslov, M. Kozlov, N. I. Krasovsky, I. I. Kraft, A. I. Levshin, F. Leontovich, P. E. Makovetsky,
G. N. Potanin, V. V. Radlov, P. P. Rumyantsev, N. Rych-kov, L. A. Slovokhotov, I. P. Shangin, A. Yanushkev-ich, etc., the huge empirical material which created a certain base for further scientific researches in this direction was revealed and built.
The significant contribution to studying of problems of the Kazakh common law was made by the Kazakh educators Ch. Ch. Valikhanov, I. Altynsarin, Abay Ku-nanbayev, prominent representatives of the Kazakh intellectuals A. N. Bukeykhanov, Zh. Dosmukhamedov, A. Baytursunov, Zh. Akpayev, B. Karatayev, etc.
Interest in usual and legal system of Kazakhs increased in Soviet period. However the researches conducted during this period in the field of a common law of Kazakhs had unilateral, especially class character. It was shown, first of all that institutes of the traditional Kazakh right appeared remnants of a patriarchal and patrimonial system, were in every possible way criticized, and the common law was considered as a security measure of interests of the feudal nobility [2, 5].
With finding by Kazakhstan of the sovereignty and independence new approach was outlined in studying and research of the Kazakh common law.
The Mongolian laws had considerable impact on formation of the Kazakh common law. In particular, Va-likhanov Ch. Ch. pointed to it [3, 146]. In his opinion, the common law of Kazakhs was a product of historical development. It connected its formation with process of formation of the Kazakh people.
The Kazakh common law didn’t know accurate definition of the concept “crime”. The crime was understood as “bad business”, “bad behavior” [4].
Formally the crime was understood as drawing to the victim of moral and material harm. Accurate differentiation between a criminal offense and tort in the Kazakh common law didn’t exist.
The person could only be the subject of a crime on the Kazakh common law. Animal and inanimate objects weren’t subject of a crime. Also subjects of a crime weren’t mad, mentally retarded, deaf-and-dumb. Slaves too couldn’t be the subject of a crime.
Thus, the natural, responsible person who is freely disposing of the property could be the subject of a crime.
From the point of view of a place of its commission, the crime committed in the native aul was considered as the most serious crime. It was punished more strictly, than the crime committed in others aul.
Not less the importance also had time of commission of crime. So, the theft made in the afternoon was punished more strictly, than the theft made at night as in the first case it was interfaced to special impudence and neglect to be noticed.
The way of commission of crime was of great importance for qualification of crimes. On the Kazakh common law murder mystery was punished more strictly as it, according to legislators was connected with robbery. Obvious murder was understood as the murder committed in quarrel, a fight, etc.
To the Kazakh common law the institute of partnership was already known. However it didn’t distinguish extents of partnership in a crime yet. All accomplices bore an equal, that is joint liability.
As for institute of necessary defense, it should be noted that to laws to Tauka this institute wasn’t known.
Responsibility for the committed crime came with 13-summer age.
By the period of accession of Kazakhstan to Russia in the Kazakh common law there was the following system of punishments:
1) death penalty;
2) corporal punishments;
3) the dishonoring punishments;
4) delivery guilty to the party of the victim;
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5) exile from tribal community;
6) kuna;
1) aip.
One of the main principles of “Zhety-Zhargy” was harmony of punishment to the committed crime, that is the principle of a talion.
The death penalty on the Kazakh common law was applied extremely seldom and only with the consent of so-called people’s assembly. This rule worked up to the 18th century. Since the second half of the 18th eyelid, khans and sultans began a thicket to apply the death penalty and other heavy types of punishments as to the political opponents, and persons which are persistently not obeying them.
Corporal punishments to the most ancient Kazakh common law weren’t known. Laws to Tauka didn’t prescribe such punishment and in its time the court biev didn’t pronounce such sentences. That at weakness of the government application of cruel measures of punishment, usually caused internal war, blood feud and a barymta, the whole auls terminating sometimes in destruction was the reason for that. After accession of Kazakhstan to Russia in 1838 punishments of a shpitsrutenama were entered [6].
The dishonoring punishments pursued one purpose — to ashame the criminal publicly, in public. Sentenced to a shame subjected to the following humiliation: to it put on dirty felt a neck, put on a cow or a donkey back to front and carried on the aul, and then sentenced I had to pledge publicly, an oath not to make criminal acts any more.
Delivery guilty to the party of the victim was applied in case relatives of the guilty didn’t wish to pay kuna or aip. In this case the dissatisfied party at best could force condemned to fulfill kuna or aip, and in the worst to punish at discretion.
Exile from tribal community was considered as punishment as heavier, than the death penalty. Guilty sentenced to this look punishment, cut off a hem of clothes and expelled from a community, outlawed it.
Kun is the repayment paid by agreement of the parties by a guilty party to the dissatisfied party in case of commission of the most serious crimes, that is murder or heavy injuries.
Kun was two types: the main and additional. Size kuna depended on the social status of the victim and weight of the committed crime. For murder of an ordinary obshchinnik it was paid kuna at a rate of1000 rams, 200 horses or 100 camels. For murder ofthe woman it was paid kuna at a rate of 500 rams, 100 horses or 50 camels. In case of murder of the representative of “blue blood” it was paid sevenfold kuna, that is 1000 rams. For murder of the slave to his owner it was paid kuna at a rate of the cost of a hunting dog or a golden eagle.
As a rule, kun it was paid guilty, but its community.
Additional kun I was two types: kun on art and kun on a bone. The first look kun was entered for akyns, famous fighters, биев, scientists. For murder of this category of people the guilty paid kun in a double size, as for murder of two simple people.
Kuhn was imposed on bones on guilty of a case of destruction of traces of the crime by it.
Aip is the penalty paid by a guilty party to the party of the victim for commission of property crimes and some crimes against the personality.
Two types of an aip are known: ат tone and toguz.
The first type of an aip was generally applied for violation of the principle of hospitality. In this case the guilty paid a penalty in the form of a horse and a dressing gown.
The second type of an aip represented a ninefold penalty. Toguz was three types: big, average and small. Big toguz began with a camel. Average toguz began with a horse. Small toguz began with a bull or a cow.
The criminal common law of Kazakhs knew punishable and nonpunishable criminal actions.
Treated nonpunishable acts: murder of the slave by mister, murder by the husband of the adulteress and her lover.
All criminal actions. provided by a criminal common law of Kazakhs it is possible to subdivide into some groups:
1) crimes against the personality;
2) property crimes;
3) crimes in the field of the family marriage right;
4) crimes against court;
5) crimes against religion.
References:
1. Zimanov S. Z. K ocenke kazahskogo prava v istorii mysli.//Drevnij mir prava kazahov. - Almaty, 2004. -T.2. - S. 15-24.
2. Useinova K. R. Institut barymty i ego mesto v obychno-pravovoj sisteme kazahov.//Diss... k.ju. n. - Almaty, 2001. - 112 s.
3. Valihanov Ch. Ch. Sobranie sochinenij v pjati tomah. - T.5. - Alma-Ata, 1985 - S. 146.
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4. Kul’teleev T. M. Ugolovnoe obychnoe pravo kazahov. - Almaty, 2004. - 312 s.
5. Useinova G. R., Esetova S. K. K voprosu ob izuchenii institutov obychnogo prava kazahov.//Vestnik tadzhiksk-ogo nacional’nogo universiteta - SINO - Tadzhikistan, 2012 - № 2. - S. 27-35.
6. Useinova G. R. Gosudarstvenno-pravovye vzgljady Valihanova Ch. Ch.: dis... kand. jurid. nauk: 12.00.01. -Alma-Ata, 1996. - 139 s.
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