Comment to article 134. Substitution of a child of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Deliberate substitution of a child —
is punishable by a fine in the amount of two hundred to five hundred minimum calculation indices or in the amount of the convicted person's salary or other income for a period of two to five months, or correctional labor for a term of up to two years, or imprisonment for the same term.
2. The same act committed out of selfish or other base motives, —
is punishable by imprisonment for a term of three to seven years.
This crime is primarily directed against the family.
The social danger of a crime is that as a result of substitution, the natural bond between parents and children is disrupted.
The object of the crime in question is the freedom of the child, his rights and legitimate interests, as well as the legitimate interests and rights of the child's parents. The crime also harms the physical and spiritual development of the child.
The objective side of the crime is an action that is realized in the secret substitution of one child for another. Judging by the wording of the article in question, we are talking about the substitution of a child in a maternity hospital, a children's home. The replacement of the child can be carried out in the apartment building where the birth was performed, in a stroller left near a store, market, etc. The consent of the parents of one of the parties to substitute a child does not exclude the corpus delicti of this crime. The exchange of children by consent between the parents of each of the parties does not contain elements of a crime, since in fact their child is being abandoned. The actions of the perpetrator will contain signs of this norm in cases of child substitution, when the baby's parents are not present, for example, in the case of the death of the mother in the absence of the father and other relatives.
One child is replaced by another, which is only possible for a newborn when he is in a maternity hospital or a child's home. Substitution of a child can also be performed by replacing one's child, who has, for example, some kind of physical defect, with another healthy child. In cases where the mother or father can identify their child, and if a substitution occurs, the actions of the perpetrator are considered under art. 134 of the Criminal Code as substitution of the child and as kidnapping provided for in art. 125 of the Criminal Code.
The subject of child substitution may be employees of maternity hospitals, orphanages, as well as persons who provide assistance during childbirth or care for a newborn outside a medical institution, or any sane individual who has reached the age of 16. Along with medical professionals, the subject of the crime may be the newborn's mother or other relatives.
On the subjective side, the crime being analyzed can only be committed with direct intent. The perpetrator is aware that he is replacing the child, anticipates the onset of socially dangerous consequences and desires this.
The qualified composition of the substitution of a child (Part 2 of Article 134 of the Criminal Code) is designed by the legislator in such a way that its subjective side is expressed by selfish or other base motives. Selfish motives can be expressed, for example, in receiving financial rewards from those interested in replacing the child. The manifestation of other base motives may be: revenge, envy of the parents of someone else's child, sometimes hooligan motives. In cases where the replacement of a child occurred in a maternity hospital or a child's home due to negligence, the perpetrators, who have the characteristics of an official, must be held responsible under art. 316 of the Criminal Code for negligence.
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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