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10Karazhanov Malik Dulatovich,
doctoral candidate of the Kazakhstan-American free university Ust Kamenogorsk, East Kazakhstan area, the Republic of Kazakhstan
TO THE QUESTION OF OBJECT OF CRIMES AGAINST ECOLOGICAL SAFETY
The object of a crime defines system of the Special part of criminal code RK and has great importance for qualification of a crime and differentiation of criminal liability.
B.S. Nikiforov, V.K. Glistina, N.I. Korzhanskiy, G.P. Novoselova's works are devoted to problems of object of a crime. But, despite works of specified and other authors, in the theory of criminal law there is no definite answer on a question that it is necessary to understand as object of a crime as the conventional theory «object of a crime - the public relations» in the last decade was reasonably subjected to criticism because of complexity of concept «the public relations»
Development of a problem of object of a crime began in jurisprudence at the end of the XVIII century as concept «crime structure», having ceased to have initial, procedural value, got the status of one of the most important categories of criminal driver's license It is possible even to tell that deep development of concept and essence of object of a crime it is traditional and it is characteristic for Russian pre-revolutionary, Soviet and nowadays - domestic criminal law, in difference, for example, from Anglo-Saxon school of the right.
Representatives of Russian pre-revolutionary jurisprudence (V.D. Spasovich, A.F. Kistyakovsky, N.D. Sergeevsky, N.S. Tagantsev, V.M. Hvostov) gave great attention to development of concept of object of a crime in spite of the fact that made formal definition of a crime.
In the middle of the 19th century there was quite widespread so-called "normativistskaya" theory of object ofthe crime, based on formal definition of a crime. According to this theory a crime an essence violation of rule of law, therefore, the rule of law also is object of a crime, i.e. that, on what criminal action encroaches.
In this regard the known Russian pre-revolutionary lawyer N.S. Tagantsev considered that object of a crime always is the legal norm in its real life.
Infliction of harm to the owner of the real right, -was written by N.S. Tagantsev, - makes only means, instead of essence of a crime. It plays in criminal law a minor role as the essence of a crime is made by the determination of will expressed by this way to break
requirements of the state about inviolability of a legal order and therefore the state, as the guardian of rule of law suffers from a crime. Proceeding from it, N.S. Tagantsev drew a conclusion that, recognizing as object of a crime the real benefits and interests, we are able not explain the legal nature of those acts at which destruction of any benefit isn't considered illegal
Authors of the legal encyclopedia of the beginning of the 20th century eyelid defining object of a crime, noted: «object or, a subject on which the crime goes, are these or those vital benefits; that when any vital benefit is broken - and there is a crime. But such definition of object of a crime would be incomplete ... That there was a crime, it is necessary not only to harm this or that benefit; it is necessary still that this benefit was protected by the criminal law. Thus, as object or a subject of a crime are called: a) this or that vital interest; and) rule of law which protects it»
Besides normativistsky in the 19th century there was also a theory of the subjective right as object of a crime. V.D. Spasovich, the author of the textbook first in Russia on criminal law adhered this theory. He wrote that «the crime is illegal infringement of someone's right which is so essential that the state, including this right one of necessary conditions of a hostel, at insufficiency of other means guarding, protects its inviolability with punishment». In this regard Spasovich noted: the person suffering from a crime, is called technically as a subject or object of a crime. The right can belong as persons individual, physical, and to persons collective, legal .» [5]. Thus, according to its theory a subject and object of a crime is the individual, a family, estate, the state etc. To the similar point of view adhered P.D. Kalmykov, D.A. Dril.
"Double" definitions of object of the right also sounded. In particular, definition of N. Neklyudovs is interesting: «Object of a crime are: first, the general law for the right is broken by a crime as that, is broken by it the general will stated in the law, and the private law as the right is broken directly and quantitatively and qualitatively only to a certain extent, in known limits is indifferently harmed even to the state, and, secondly; all right, all society, all state only are indifferently mentioned by a crime» In the Soviet criminal science actually there was
№ 4 (28) 2012 г Вестник Института законодательства Республики Казахстан
no discussion in definition of object of the right. Authors generally criticized pre-revolutionary theories, and also a foreign criminal science whereas all, actually, met in uniform definition of object of a crime as the public relations (B.S. Nikiforov [7], V.N. Kudryavtsev, N.I. Korzhansky [8], etc.).
Discussion was developed in connection with a question of definition of direct object of a crime.
In the Soviet legal literature at the characteristic of direct object of a crime quite often recognize that them can be and not the public relations, and those physical things on which concrete direct criminal influence is had.
Some authors, recognizing as the general object the public relations, considered that as direct object of a crime the public relations, and these or those state or public interests, or material expression of the corresponding public relations, property in sense of set of things, things, materials or people act not.
Reasonings on concept public the relations were one more debatable question in the Soviet criminal science; reasonings on structure of the public relations (structure of object of a crime).
B.S. Nikiforov who was in details investigating the maintenance of the public relations, noted that they represent activity of his participants or certain position of people on the relation to each other, or that and another at the same time [9]. N.I. Korzhansky concludes that the basis, a kernel of the public relations are made by social communication which is shown in the form of social possibility or a prohibition of a certain social behavior and which always includes the estimated moment and has standard character.
As a result of researches of A.V. Drozdova from the middle of the 60th years received the widest circulation the concept of threenominal structure of the public relation. Analyzing the internal nature ofthe mechanism of development of social communications as forms of the public relations, he came to a conclusion that structural elements of the last are: 1) carriers (subjects) of the relation; 2) a subject concerning which there are relations; 3) socially significant activity (social communication) as maintenance of the relations [10]. This thesis becomes not only conventional in theories of the Soviet right, but also long time base for development of a science of criminal law.
E.I. Kayrzhanov allocated to name the object of a crime interests and presented to replace a word the public relations.
V.N. Vinokurov made an attempt to establish that is object of a crime. For this purpose it considers concept «object of a crime», allocating its various aspects. First, in valuable aspect it is considered as object of criminal legal protection (all public relations). Secondly, in legal (formal) aspect the object of a crime is considered as an element of structure of a crime when the legislator represents in a disposition of article of the Special part of UK RK structure of the public relations by means of the description of signs of all elements of structure of a crime, limits the sphere of the public relations,
recognizing as object as a structure element only legal relationship. Thirdly, in subject aspect where object of a crime are certain benefits in system of the public relations which are shown as a part of the reality having material or non-material forms, borders, conditions.
Considering category object as an element of structure of a crime, the author leaves on a problem of a subject of criminal and legal regulation and reasonably comes to a conclusion that as an element of structure of a crime it is necessary to recognize as object of a crime the criminal legal relationship arising from coming into force of the criminal rule of law, establishing a ban of a certain type of behavior.
Research of aspects of object of a crime in subject aspect. For this purpose V. N. Vinokurov gives classification of objects of crimes by "horizontal" which is based on categories "general", "general", "special" and "individual", the concrete individual subjects characterizing signs which are acting as "separate". It allowed V. N. Vinokurov to come to a conclusion that "general" corresponds to category the general object of a crime (object of criminal legal protection).
Compound (standard) object as the basis of division of the Special part on sections is "general". Patrimonial object of a crime, on the basis of which crime are broken into chapters, acts as "special". The specific object (a structure element) as legal relationship in a certain sphere of the activity, got the fixing in a disposition of norms of criminal driver's license, acts - "individual". The direct object of a crime as "separate" is a concrete phenomenon of the outside world and it is shown in the form of crime consequences as the victim or a subject of the outside world. Separate corresponds with the general, special and individual as a part and whole, as formed the basis of an identification of subjects of the outside world and the person with direct object of a crime.
Proceeding from it, we holding the opinion of V.N. Vinokurov, E.I. Kayrzhanov wanted to allocate separately that specific object of crimes encroaching on ecological safety - is ecological safety as legal relationship as proceeding from V.N. Vinokurov's opinion it is a certain sphere of activity of the person.
As a result of analyzed act any ofthree direct objects can suffer: a) stability of environment; 6) natural and resource potential; b) constitutionally guaranteed right of each citizen to favorable environment. In a science of criminal law the opinion is expressed that object of this crime is «standardly certain order of works at design, placement, construction, commissioning and operation industrial, agricultural, scientific and other enterprises, constructions, etc.».
Different designing of objects, their placement, construction and commissioning assume strict observance of the rules providing ecological safety. The disposition of this norm is blanket therefore at qualification of act according to Art. 277 of criminal code RK it is necessary to specify in the indictment and a sentence, which rules are broken and they are
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provided by what statutory act. Examination or consultation of the expert is in certain cases necessary.
Design includes activities for development of project documentation and the feasibility study on object created, reconstructed or subjected to major maintenance.
Placement of object assumes activities for its spatial arrangement on the district. It should answer the state town-planning standards and rules, requirements of zoning of territories, providing favorable conditions for population accommodation.
As construction understand activities for object
creation, and also for its reconstruction and major maintenance.
Object input in operation represents the procedure settled by regulations on delivery - acceptance of ready object.
Operation of object consists in its use according to direct appointment
The general ecological requirements to economic and other activity and ecological requirements for types of economic and other activity contain in chapters 29 and 30 of the Ecological code of RK
Literature
1. Agildin V.V. A new view on the doctrine about object of a crime in the theory of criminal law // Criminological magazine: Criticism and bibliography. 1 (15) 2011. Page 95-99.
2. Novovselov G. P. The doctrine about object of a crime. Methodological aspects. - M: Norm. - 2001. - Page 1.
3. Tagantsev N. S. Course of Russian criminal law. Part the General. Book 1. The doctrine about a crime. SPb, 1874, Page 175.
4. Tails of Century of M. The general theory is right. Elementary sketch. M, 1914, Page 138.
5. Spasovich V.D. Textbook of criminal law. Part the general. - SPb.: 1886. - Page 49.
6. Neklyudov N. A. The management to the Special part of Russian criminal law. - SPb.: 1887. - Page 400.
7. Nikiforov B. S. Object of a crime on the Soviet criminal law. - M: Gosyurizdat, 1960. Page-28.
8. Korzhansky N.I.Objekt and criminal legal protection subject. - M: 1980. - page 26.
9. Nikiforov B. S. Criminal legal protection of personal property in the USSR. M.:1954. - Page 24.
10. Drozdov A.V. The person and the public relations - L.:1966. - Page 23-30.
Бул мацалада экологиялыц цаутаздтке царсы цылмыстардыц объектШн аныцтаудыц теориялъщ мэселелерi царалады. Автор цылмыс объектгсгне цатысты гылыми тYсiнiктемелерге салыстырмалы талдау жасаган, сондай-ащ экологиялыц цаут^дтке царсы щылмыстардыц сара-лау сурацтарына жеке тоцталган. Экологиялыц цаут^здтке царсы цылмыстардыц объектШнщ негiзгi категорияларына аныцтама беру мYмкiндiгi жасалган.
ТYйiн свздер: экологиялыц цаутаздЫ, цылмыстардыц объектiсi.
В данной статье рассматриваются теоретические проблемы определения объекта преступлений против экологической безопасности. Автором был проведен сравнительный анализ доктриналь-ных толкований объекта преступления, а также выделены проблемы квалификации преступлений против экологической безопасности. Была предпринята попытка дать определение основным категориям объекта преступлений против экологической безопасности.
Ключевые слова: экологическая безопасность, объект преступлений.
This article discusses the theoretical problems of the definition of crimes object against environmental safety. The author made a comparative analysis of the doctrinal interpretations of the object of the crime, and highlighted the problem definition of crimes against environmental safety. An attempt was made to define the major categories of crime objects against the environmental safety.
Keywords: ecological safety, object of crimes.
Мэлж Дулат^лы Каражанов,
Казац-американдыщ ерюн универсигетшщ 3 курс PhD докторанты, Семей Шыгыс Казахстан облысы
Экологиялык каушазджке карсы цылмыстардыц объекта туралы мэселелер
Каражанов Малик Дулатович,
докторант PhD 3-го курса Казахстанско-американского свободного университета г. Семей, Восточно-Казахстанская область
К вопросу об объекте преступлений против экологической безопасности
Karazhanov Malik Dulatovich,
doctoral candidate of the Kazakhstan-American free university Ust Kamenogorsk, East Kazakhstan area, RK
To the question of object of crimes against ecological safety
