Comment to Article 138. Improper performance of duties to ensure the safety of life and health of children of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Improper performance of duties to ensure the safety of the life and health of a minor by a person to whom such duties are assigned in the service, or by a person performing these duties on a special assignment or voluntarily assuming such duties, if this negligently caused serious or moderate harm to the minor., —      

is punishable by a fine in the amount of up to five thousand monthly calculation indices or in the amount of the convicted person's salary or other income for a period of seven to nine months, or correctional labor for up to two years, or imprisonment for the same term with deprivation of the right to hold certain positions or engage in certain activities for up to three years or without as such.      

2. The same act that negligently caused the death of a minor, —      

is punishable by imprisonment for a term of up to five years with or without 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 crime lies in the fact that, as a result of an unfair attitude towards one's duties to ensure the life and health of a minor, harm to health or death is inflicted on the latter.    

The object of the crime in question is social relations that ensure the normal physical and moral development of a minor.      

The objective side is expressed in the improper performance of duties to ensure the safety of life and health of children.    

Improper performance of duties consists in a negligent, unfair, or untimely attitude to the performance of one's duties, entailing a failure to ensure the safety of life and health of a minor, which has entailed the consequences provided for in the disposition of the article in question.    

 The victim is a person under the age of 14. The crime under Part 1 of Article 138 of the Criminal Code is considered completed from the moment of causing moderate or serious injury to a minor through negligence. At the same time, the harm to the victim's health is determined in accordance with the "Rules for the organization and conduct of forensic medical examination" dated December 20, 2004.      

On the subjective side, the act is characterized by a careless form of guilt, that is, the person did not foresee the possibility of socially dangerous consequences, an unfair attitude towards fulfilling his duties to ensure the safety of life and health of children, although with due care and foresight he should have and could have foreseen these consequences.    

The following categories of persons may be the subject of a crime:     

a) persons to whom the specified duties are assigned in the service;      

b) persons who are charged with these duties by special assignment, for example, a babysitter for caring for a young child;     

c) persons who voluntarily assumed such duties – guardians and trustees.      

If this act negligently caused the death of a minor, then the perpetrator is liable already under Part 2 of art. 138 of the Criminal Code.     

It should be noted that Article 74 of the Law of the Republic of Kazakhstan "On Marriage and Family" dated December 17, 1998 provides for the removal by court order of a child in case of an immediate threat to his life or health.

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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