Comment to article 186. Violation of property rights to land of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Illegal entry into someone else's land plot, which has entailed causing significant harm to the rights or legally protected interests of citizens or organizations or to the legally protected interests of society or the state, committed with the use of violence or with the threat of its use by a group of persons, or accompanied by an illegal search, as well as illegal seizure of someone else's land plot, —      

is punishable by a fine in the amount of two hundred to five hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of two to five hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of two to five months, or by arrest for a term of two to four months, or by imprisonment for up to two years.      

2. The acts provided for in the first part of this Article committed by a person using his official position, —      

are punishable by a fine in the amount of five hundred to eight hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of five to eight months, or by deprivation of the right to hold certain positions or engage in certain activities for a period of two to five years, or by arrest for a period of four to six months, or by imprisonment for a period of the term is up to three years.

     The social danger of the analyzed criminal act is expressed in the fact that the property rights to land of citizens, organizations, society or the state as a whole are violated, while the victim suffers both physical and significant material harm or the latter is deprived of the opportunity to own a land plot.      The object of this crime is the property right to land. The real right to land should be understood as the right of ownership, the right of land ownership, the right to temporary use of privately owned land and other property rights.      

Private ownership of land acts as the property of citizens and non-governmental legal entities. Private ownership of citizens may include land plots provided for personal household management, gardening or cottage construction. At the same time, these land plots are provided for development or built up with industrial and non-industrial, residential buildings (structures, structures) and their complexes, including land intended for maintenance of buildings in accordance with their purpose. This land plot is an immovable property.      

The owner of the land plot exercises the rights of ownership, use and disposal of this plot at his discretion without obtaining any permits from government agencies, unless otherwise provided by the Law of the Republic of Kazakhstan "On Land" and other legislative acts.      

The owner has the right to make any transactions with respect to his land plot that are not prohibited by law, in particular, to sell at a contractual price, make a contribution to the authorized fund of a business partnership, pledge, donate and bequeath, and lease for temporary use (Articles 15-19 of the Law of the Republic of Kazakhstan "On Land"). K030000442_      A proprietary right to land forms any of the following rights:      

- the right to own, use and dispose of land;      

- the right of land use is the right of a person to own and use a land plot that is in state ownership indefinitely or for a certain period of time, and the right belonging to him only within the limits established by law.;     

- the right of temporary use of a privately owned land plot on the basis of an agreement on the temporary use of this plot;      

- easement – the right of citizens and legal entities to a limited purpose use of this land plot.      The objective side of the crime under consideration is expressed in illegal entry into someone else's land plot, resulting in significant harm to the rights or legally protected interests of citizens or organizations, or to the legally protected interests of society or the state, committed with the use of violence or with the threat of its use by a group of persons, or accompanied by an illegal search, as well as illegal seizure of someone else's land plot.      

Illegal entry into someone else's land plot should be understood as the actions of the perpetrator, expressed in the invasion of a land plot that does not belong to him without legitimate grounds and being on it contrary to the will of the owner of the land plot. At the same time, an act is recognized as criminally punishable only if it causes significant harm, which implies a significant restriction or impossibility of exercising legitimate property rights to land. For example, the owner of a land plot is deprived of the opportunity to make civil law transactions with respect to this land plot. As you know, a land plot is not only an object of ownership, but also a component of the environment, therefore, society and the state are interested in its normal operation in order to preserve the ecological balance.      

The use of violence or the threat of its use when entering someone else's land plot is accompanied by physical (beatings, minor harm to health) or mental violence to the owner of this plot. Moderate severity and serious harm to the victim's health require additional qualifications under Articles 104 and 103 of the Criminal Code.      

Entering a land plot by two or more persons who have reached the age of 16 and are sane entails liability under Part 1 of Article 186 of the Criminal Code.      

The degree of public danger of a crime increases when entering someone else's land, accompanied by an illegal search, without legitimate grounds, that is, without the approval of the prosecutor.     

The seizure of someone else's land is understood as any form of illegal acquisition of this land. In this case, the ownership right does not pass to the perpetrator in this case.      

By design, the composition of this crime is material. For example, this act will be considered completed if it causes significant harm to the rights or legally protected interests of citizens or organizations, or to the legally protected interests of society or the state, committed with the use of violence or threat of violence against the victim, or when committed by a group of persons. The concept of "substantial harm" is similar to the signs of a crime provided for in Article 184 of the Criminal Code. At the same time, the crime in question will be considered completed in cases where it was accompanied by an illegal search, as well as in the case of illegal seizure of someone else's land.      

The subject of the crime being analyzed is a general, sane individual who has reached the age of 16.    

On the subjective side, this act is expressed both in the form of direct and indirect intent. A person is aware that he is illegally entering someone else's land, anticipates or deliberately allows the occurrence of harmful consequences specified in the disposition of art.186 of the Criminal Code.      

The legislator calls an aggravating circumstance: the acts provided for in Part 1 of this article, committed by a person using his official position. To impute this feature, it is required to establish that the violation of property rights to land was carried out due to the position held by the perpetrator, and he used it to illegally enter or seize someone else's land.

Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.                  

Date of amendment of the act:  08/02/2007 Date of adoption of the act:  08/02/2007 Place of acceptance:  NO Authority that adopted the act: 180000000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  167 Status of the act:  new Sphere of legal relations:  028000000000 Report form:  COMM Legal force:  1900 Language of the Act:  rus

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