Comment to article 114. Improper performance of professional duties by medical and pharmaceutical workers  The Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Non-fulfillment or improper fulfillment of professional duties by medical and pharmaceutical workers as a result of negligent or unfair treatment of them, if this act has caused moderate harm to human health., -      

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

2. The same acts that caused serious harm to health, -      

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 three months to one year, or by arrest for a period of three to six months with deprivation of the right to hold certain positions or engage in certain activities for up to three years.      

3. The acts provided for in the first part of this Article committed by an official –      

are punishable by a fine in the amount of three hundred to one thousand monthly calculation indices or by arrest for a period of two to six months with deprivation of the right to hold certain positions or engage in certain activities for up to three years.      

4. The acts provided for in the first and second parts of this Article that caused the death of a person, -      

are punishable by restriction of liberty for a term of up to two years or by imprisonment for a term of the same term with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.      

5. The acts provided for in part four of this Article committed by an official, -      

is punishable by restriction of liberty for a term of up to three years or imprisonment for the same term with a fine in the amount of fifty to two hundred monthly calculation indices with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

     The public danger of this act is an encroachment on the constitutional right of a person to qualified medical care, including treatment related to the deterioration of their health and the threat of their death.      The object of the crime is human life and health.      

The objective side of the crime is the failure or improper performance of professional duties by medical and pharmaceutical workers due to negligent or unfair treatment of them, if this act has caused moderate harm to human health.      

The criminal nature of a person's behavior can be expressed both in the form of inaction (failure to perform their duties) and in the form of active actions (improper performance of their duties).      

The composition of the crime in question in the form of non-fulfillment of their professional duties requires the establishment of those specific official actions that medical and pharmaceutical workers were required to perform. Improper performance of professional duties is expressed in the actions of medical and pharmaceutical workers within the scope of their professional duties, but not performed in the way required by the interests of the cause.      

These include:      

- failure to provide medical care in accordance with their official duties;      

- failure to provide citizens with emergency medical care if it is necessary to provide it outside the medical organization;     

- delivery of medicines without a prescription;      

- delivery of expired medicines;     

- delivery of substitute medicines with low effectiveness of medicinal properties, etc.      

The crime is considered completed from the moment of infliction of harm to health of moderate severity. The concept of harm to health of moderate severity was considered by us when analyzing the crime provided for in Article 104 of the Criminal Code of the Republic of Kazakhstan.      

A causal relationship should be established between the improper performance of professional duties by medical and pharmaceutical workers and the resulting harm to health of moderate severity.      

The subjective side of the crime is characterized by an intentional form of guilt. In relation to the fact of non-fulfillment or improper fulfillment of professional duties by medical and pharmaceutical workers due to negligent or unfair treatment of them, guilt can be expressed both in the form of direct and indirect intent, and in relation to the consequences of guilt is characterized by negligence. However, in general, such a crime is considered to have been committed intentionally.      

The subject of the crime is a special one. They can only be medical and pharmaceutical workers with appropriate education.      

Part 2 of the norm in question provides for liability for the commission of this crime, which caused serious harm to health. The concept of serious harm to health is considered in the analysis of the crime provided for in Article 103 of the Criminal Code of the Republic of Kazakhstan.      

114 of the Criminal Code provides for liability for acts provided for in parts one and two of this article committed by an official. Officials are recognized as persons who permanently, temporarily or by special authority perform organizational, administrative or economic functions in medical and pharmaceutical organizations and enterprises.      

114 of the Criminal Code provides for liability for acts provided for in parts one and two of this article that caused the death of a person.      

114 of the Criminal Code provides for liability for acts provided for in part four of this article committed by an official.

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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