CRIMINAL LAW AND CRIMINAL PROCEDURE. INFORMATION LAW AND SECURITY

Offer and Promise of a Bribe under the New Version of Article 367 of the Criminal Code of the Republic of Kazakhstan: Issues of a Truncated Corpus Delicti, Voluntary Renunciation, and Differentiation of Punishment

Abstract

The article is devoted to a theoretical and legal analysis of the new wording of Article 367 of the Criminal Code of the Republic of Kazakhstan, which establishes liability for offering, promising, and actually giving a bribe. The relevance of the study is determined by the fact that this construction strengthens the preventive potential of anti-corruption criminal law; however, at the same time, it raises a number of systemic issues related to the institutions of the General Part of criminal law.

The article substantiates that the inclusion of an offer and a promise of a bribe directly in the disposition of a special criminal law provision does not create a direct contradiction with the provisions on preparation for a crime, attempted crime, voluntary abandonment, and sentencing for an unfinished crime. At the same time, such wording creates a special truncated corpus delicti, in which the moment of completion of the crime is shifted to an earlier stage of the realization of corrupt intent.

As a result, the offer and promise of a bribe are removed from the regime of an unfinished crime, which gives rise to the problem of fairness of punishment and differentiation of criminal liability. Particular attention is paid to competition with the institution of voluntary abandonment, since a subsequent refusal to actually transfer the bribe, under the current wording of the provision, does not eliminate criminal liability for the previously completed offer or promise.

Based on the analysis conducted, the authors propose criteria for distinguishing between an offer, a promise, and the actual giving of a bribe, and also formulate proposals for improving legislative technique and judicial interpretation.