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ЮРИДИЧЕСКИЕ НАУКИ
PROBLEMS AND POSSIBLE WAYS TO IMPROVE THE CRIMINAL LEGAL _PROTECTION OF LAND_
Mavlyanov Abdykaparov Subankulovich
Associate Professor, "International law " chairmen, Kyrgyzstan international university,
Republic of Kyrgyzstan Kopbaeva Aizhan Bakytbekovna
6D-030100-Law PhD, 2-doctoral course, Kyrgyzstan international university, Republic of Kyrgyzstan
E-mail: [email protected]
ABSTRACT
This article analyzes the main problems brought to legal liability associated with both the contradictory provisions of the regulations, as well as with law enforcement. Attention is paid to the study of ways to improve the legislation. At the present stage in need of serious scientific analysis of issues such as the definition of the boundaries of administrative and criminal liability for damage to land, questions of qualification of acts that infringe upon the earth. An analysis of the criminal legislation of certain foreign countries with a view to possible use of foreign experience in improving the art. 273 of the Criminal Code of the Kyrgyz Republic.
Keywords: damage land, land, criminal responsibility, the rule of law
АННОТАЦИЯ
В данной статье анализируются основные трудности привлечения к юридической ответственности, связанные как с противоречивостью положений нормативных актов, так и с правоприменением. Уделено внимание исследованию направлений совершенствования законодательства. На современном этапе нуждаются в серьёзном научном анализе такие вопросы, как определение границ административной и уголовной ответственности за порчу земли, вопросы квалификации деяний, посягающих на землю. Анализ уголовного законодательства отдельных зарубежных стран с целью возможного использования зарубежного опыта при совершенствовании ст. 273 Уголовного кодекса Кыргызской Республики.
Ключевые слова: порча земли, земля, уголовная ответственность, правопорядок.
Adopted in recent years, environmental laws a significant impact on the ecological situation in the country did not have any. Despite the measures taken the legal and economic nature of the level of contamination is still high and the environmental situation - complex. Of particular concern is the condition of the land and soil, as they are the biological basis of the existence of all living things on the planet. The problem of legal protection of the land does not arise by itself. The reason is an objective need to address the negative consequences resulting from the use of land resources. If the land is not used, as well as any other natural resources, they do not need protection.
At the same time it is obvious that the problem cannot be solved only by legal methods and means. But we cannot solve it, and without proper legal support. It can be reasonably argued that criminal law plays an important role in protecting the environment, but to consider it is not necessary as the primary means.
The adverse impact on the ground is reflected in other natural objects: water, air, forests, minerals, flora and fauna, and, respectively, and on human health. Therefore, protecting the land from illegal encroachments, we provide safety and other components of the environment [1].
At the present stage in need of serious scientific analysis of issues such as the definition of the existing system of sources of legal regulation of land protection from poisoning, pollution and other damage; delimitation of administrative and criminal liability for damage to the land; acts qualification issues encroaching on the
land; analysis of the criminal legislation of certain foreign countries with a view to possible use of foreign experience in improving the art. 273 of the Criminal Code of the Kyrgyz Republic; development of proposals for improving the criminal justice response to corruption of land and others. Thus, the criminal-law protection of the earth - is a serious and so far has not allowed the problem [2, p.52].
The problem of demarcation of the administrative offenses and crimes is that these types of offenses have a lot of similarities between them. This is because, as the crimes and administrative offenses often impinge on the same object can be committed identical ways, therefore the enforcers - the body of inquiry, investigation, prosecutor or court can be difficult to properly classify the different types of illegal behavior.
The essence of the administrative responsibility is that the perpetrators of violations of the law shall be punished by the government authority. Among the characteristic features of administrative responsibility are the following.
1. Administrative liability applies for an offense that does not possess a high degree of public danger.
2. The responsibility for administrative law is always a consequence of the unlawful actions (inaction) of the legal or natural person.
Administrative responsibilities mostly occurs due to violations in the sphere of national, rather than a particular legal interest [3, p.10].
The problem of differentiation of criminal and administrative liability for damage to the earth, as we see,
acquires practical importance. There is a so-called competition (conflict) the rule of law, when one and the same act is given a different legal assessment. This situation creates some difficulties for the law enforcer, as the correct solution of this problem depends on the exact application of the law, the protection of the interests of citizens and in general compliance with the law in bringing to responsibility for environmental offenses. In legal literature, the issue of delimitation of administrative and criminal penalties for environmental offenses is given a lot of attention, but no consensus has been reached [2, p.53].
The definitions of environmental crime Code does not contain, as is done, for example, in relation to military offenses. Progressive in this sense be regarded as the experience of the Belarusian lawmakers, in a note to Chapter 26, stated - "1. Crimes against environmental safety and the environment are recognized as committed intentionally or through negligence socially dangerous act causing or likely to cause harm to the land, waters, mineral resources, forests, flora and fauna, air and other natural objects, referred to as such by the legislation on environmental protection , regardless of ownership. 2. Close the size of the damage in the articles of this chapter recognizes the extent of the damage in the amount of two hundred and fifty or more times the size of the base rate set on the day of the crime, especially large - a thousand or more times greater than the size of a basic value, unless otherwise specified in the articles of this chapter".
Thus, in regard to environmental crimes have to act norms of the General Part of the Criminal Code of the Kyrgyz Republic, both in respect of all other formulations, but the individual elements, mainly the object and the subject of the offense, the objective side are the essential features and in need of scientific study. . According to most scientists, the rejection of administrative prejudice Penal 1996 Code is a major positive step in the development of domestic criminal law, and is of great practical importance, since no matter how much repeated administrative violation, it does not grow into a new quality - a crime. For example, Part 1, Art. 269 of the Criminal Code of the Republic of Belarus "spoiling the land - the destruction of topsoil, or failure to comply with the rules of remediation or pollution of chemical or radioactive substances, waste, sewage, bacterial and parasitic pests, or other illegal damage to land (damage land) committed during the year after the imposition of an administrative penalty for the violations - "[4].
The criteria for distinguishing environmental crimes and environmental misconduct may arise of the consequences, the size of the harm and damage caused. However, this does not eliminate the problem, since the very notion of "harm to human health", "damage to the environment", "damage", "serious or other consequences of" not specified in the Code. Only, in Article 279. Illegal felling of trees and bushes fleshed out the size of the damage. In a footnote to this article, as noted earlier, states that - "Articles 275, 276, 277, 278, 279 of this Code significant damage is recognized, in the twenty-times the current figure, and large - two hundred times greater than the estimated figure set legislation of
the Kyrgyz Republic at the time of commission of the crime " [5]. Here, 273 article not available.
In our opinion, it is necessary in the formulations of environmental crime, where it is possible to assess the damage in monetary terms, to enter the qualifying signs of "damage to a significant, large and very large scale". This allows, first, to distinguish between environmental violations and environmental crimes, and, secondly, to qualify an act within the same composition according to the degree of public danger.
The concept of an administrative offense, given in Section 6. The terms used in the Code of the Kyrgyz Republic about the administrative responsibility, does not provide a public danger as a feature of the administrative offense. Therefore, in the legal literature it strengthened the view that the basis for the differentiation of crimes and administrative offenses is the degree of public danger.
Administrative offenses in the field of environmental protection and nature are inherent in other properties, namely the ability to cause damage to protected objects (soil, water, air, vegetation and fauna) or protected public relations (the order of allocation of land plots, non-compliance with environmental and sanitary - epidemiological requirements), t. e. "harmfulness".
The official point of view on the problem expressed by the Supreme Court of the Republic of Byelorussia in the decree "On the application of the law by the courts of the responsibility for offenses against environmental security and natural environment" of 18 December 2003 № 13: "6. Vessels must be borne in mind that the basis of criminal responsibility for the crimes with signs of administrative prejudice is guilty of committing premeditated forbidden by criminal law. The commission in such cases acts of negligence for a year after the imposition of an administrative penalty for the same infringement in the absence of effects in the form of disease in humans, death or damage in a large scale, entails administrative liability. 8. If contamination of the corresponding natural object was due to non-compliance with the safety requirements in the production, storage, use, transportation, burial or other radioactive, bacteriological, chemical substances or waste production and consumption, that their actions should lead to administrative or criminal liability only for breach of the rules safety when handling environmentally hazardous substances and wastes. If the design, location, construction, commissioning, conservation, dismantling, demolition, or in the operation of industrial, scientific or other objects were violations of environmental safety requirements, which resulted in the pollution of land, water, forests, air, caused by negligence death of a person or a human disease, or caused damage in a large scale, the perpetrators should be liable to attack by Art. 265 of the Criminal Code, "[6].
It is also the opinion expressed by the Supreme Court of the Russian Federation in the decision of November 5, 1998 № 14 "In criminal cases arising in connection with the violation of environmental legislation, it is necessary to delimit the ecological crime against environmental offenses, that is guilty of wrongful acts that cause damage to the natural environment and human health, for which administrative responsibility. In
case of difficulty in distinguishing criminal offense and administrative offense, special attention should be given to clarify all the circumstances that characterize the structure of environmental offenses, the consequences of a wrongful act, the size of the harm and damage caused (p. 13) [7]. Thus, the criteria for the distinction of environmental crimes and environmental misconduct may arise of the consequences, the size of the harm and damage caused.
Substantiates the new version of Art. 273 of the Criminal Code, which allows a clear distinction between the crime of "land damage" and an administrative offense "Corruption farmland and other land" (a. 184 OAI KR). By vague, environmental crimes, causing difficulties in their qualification and the passivity of law enforcement agencies in the fight against them. Specification of valuation concepts is desirable not only in respect of the acts, but also in relation to other environmental crimes. As reflected in the text of the criminal law, it will eliminate negative practices in which the guilty managed to avoid criminal responsibility and punishment, when there is good reason for this.
S.E.Calenov rightly pointed out that the question of the value "threshold" beyond which "starts" the criminal liability for damage to land, requires serious scientific understanding. Before defining this criterion accurately and scientifically, it is necessary, first, to conduct a serious investigation from the point of view is not legal, and environmental and economic sciences. Despite the well-known convention environmental damage and the impossibility of an accurate assessment, you should still make this "assessment" with regard to land and other natural resources, adding to environmental legislation the missing methods and rates for calculation of environmental damage. And this is only the preliminary work, which will help to choose a starting point for establishing the value of the expression harm to the environment, which is considered a sign of a crime (land damage). Therefore, we consider it necessary to refrain from its own proposals about the value (harm in what amount should be regarded as "caused a considerable amount") [8].
Based on the above, we propose a new version of Art. 273 of the Criminal Code.
Article 273. Land Corruption
(1) poisoning, pollution or other damage land harmful products of economic or other activities due to violation of rules for handling pesticides, plant growth
stimulants and other dangerous chemical or biological substances during storage, use and transportation, damage or destruction of topsoil due to non-fulfillment of the rules land reclamation, if this has involved removing them from agricultural use, if these actions have caused or could result in major damage to harm human health or the environment -shall be punished ...
(2) The same act that has caused very large damage to the environment or the death of a person, or mass disease of people, as well as committed in the zone of ecological emergency situation or ecological disaster zone -shall be punished ...
Note. In this article, major damage is recognized, five hundred times, especially large - a thousand times greater than the current rate, established by the legislation of the Kyrgyz Republic at the time of the crime.
In our opinion, this solution is the most efficient, fair and understandable for law enforcers and offenders.
Literature:
1. A.A.Klochkova Criminal liability for damage to land. - Diss .... k.yu.n.- Saratov. 2010
2. S.T. Fatkulin Criminal - legal protection of the land. - M. Monograph: RAP, 2009 - S.52-53
3. V.V. Agapov Administrative responsibility -Tutorial. - M .: Statut, 2000 - S. 10.
4. The Criminal Code of the Republic of Belarus of July 9, 1999 № 275-Z // online resource http://mvd.gov.by
5. The Criminal Code of the Kyrgyz Republic on October 1, 1997 number 68 (as amended as of 07.28.2015 r.) // Internet resource http://online.ad-viser.kg/
6. Resolution of the Plenum of the Supreme Court of the Republic of Belarus of December 8, 2003 № 13 "On the application of the law by the courts of the responsibility for offenses against environmental security and the environment" // online resource http://pravo.levonevsky.org
7. The Supreme Court of the Russian Federation of November 5, 1998 № 14 "On the practice of courts of law on liability for environmental offenses" // online resource http://www.consultant.ru
8. S.E. Cullenov Administrative and criminal liability for damage to land // internet resource www.ael.ru
