of July 11, 2003 No. 8
About court practice on cases on plunders
For the purpose of the correct and uniform application in court practice of the current legislation in case of qualification of the criminal offenses connected with infringement of someone else's property, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:
1. Plunder is understood as the wrongful uncompensated taking and (or) the address of alien property for benefit of the guilty person or other persons which caused damage to the owner or other owner of this property made with a mercenary motive.
2. Subject of plunder and other criminal offenses against property is others, that is not being in property of the guilty person, the property. At the same time the abducted property at the time of making of criminal offense can be both in ownership of the owner, and in ownership of other persons to which this property was entrusted or it at them was in adverse possession.
Illegal withdrawal of the property which is in joint property with other persons, including belonging to the legal entity among whose founders the guilty person is depending on orientation of intention can be qualified as plunder or as arbitrariness.
Assignment found or accidentally appeared at guilty alien property cannot be considered as plunder.
2-1. Secret plunder of foreign cattle (abaction) attracts responsibility on special regulation of the penal statute – article 188-1 of the Criminal Code of Kazakhstan (further - UK). According to the note to the specified Article are understood as the cattle: cattle; horses and donkeys; camels; small cattle and pigs.
In case of making of theft which subject were at the same time cattle and other alien property the deeds should be qualified on set of the criminal offenses provided by articles 188-1 and 187 or 188 UK.
Theft the stranger of poultry attracts responsibility under article 188 UK.
3. The order guilty stolen property at discretion (sale or voluntary conveyance to other persons, spoil, dekitting, destruction, etc.) does not form independent structure of criminal offense and additional qualification does not require.
In cases when the actions of the guilty person connected with destruction of stolen property entailed damnification to health or approach of death of the person, deeds, along with the article of the Criminal Code providing responsibility for plunder depending on intention it is necessary to qualify also under the articles of the Criminal Code providing responsibility for infringement of life or health of person.
If in case of destruction of stolen property, other alien property which is not object of plunder was intentionally or carelessly destroyed or damaged, then acts of the guilty person follows, depending on intention, also to qualify respectively under Article 202, 203 or 204 UK.
4. Theft is secret plunder of alien property. In case of the solution of question whether plunder is secret, courts shall proceed from perception of situation by the guilty person. If the guilty person considers that he acts imperceptibly for people around, then plunder shall be qualified as theft even if the owner or the other person watches its actions. Plunder shall be qualified as theft and when any of the above-stated persons sees event of occupancy by property, but does not realize its criminal nature.
If it was stolen in the presence of persons with whom the guilty person is in related, friendly and other relations of personal nature in this connection, he calculated that they will not inform and stop its action, act in such cases also should be qualified as theft.
If the above-stated persons stopped the actions directed to plunder of alien property, then the guilty person shall bear responsibility for attempt at theft.
5. Open plunder is such plunder which is committed in the presence of the victim or persons, in maintaining or under protection of which there is property, or in full view of strangers when person stealing realizes that specified persons understand illegal nature of its actions, but ignores this circumstance. At the same time does not matter whether eyewitnesses of criminal offense took measures to suppression of actions of the guilty person. Depending on degree of danger of the applied violence of action of the guilty person it is necessary to qualify as robbery or robbery.
6. Illegal occupancy by someone else's property without the plunder purpose for its temporary use for itself or other persons is not plunder.
Health of the person or other harm in case of unlawful taking of alien property for temporary use should qualify damnification under the articles of the Criminal Code providing responsibility for the specified actions if these acts are not the qualifying signs of the criminal offense providing responsibility for illegal occupancy by someone else's property without the plunder purpose.
7. Theft and robbery are recognized ended if the property is withdrawn and the guilty person has real opportunity to use or dispose of it at discretion, and robbery - from the moment of attack for the purpose of the occupancy by property connected to violence, life-threatening or health of the victim or with threat of application of such violence.
8. In case of qualification of actions of guilty persons on the basis of making of plunder of alien property group of persons by previous concert it is necessary to find out whether there was arrangement of two or more persons expressed in any form on plunder, whether collusion of these persons prior to making of the actions which are directly directed to occupancy by someone else's property that is before accomplishment of the objective side of structure of criminal offense at least by one contractor took place.
Plunder is qualified by sign "by group of persons by previous concert" and when for its making common efforts of two or more persons are combined and action of each of accomplices are necessary condition for making of actions of other accomplices, according to preliminary cast, and are in causal relationship with general, the come from activities of all accomplices, criminal result. In such cases participation in criminal offense of two and more contractors is optional, one contractor in the presence of other types of accomplices suffices.
Responsibility of the organizer, instigator or helper comes under the relevant article of the Criminal Code providing responsibility for specific criminal offense with reference to article 28 UK, except as specified, when they at the same time were collaborators of criminal offense.
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