Comment to article 309. Assignment of powers of an official of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     The appropriation of the powers of an official by a civil servant who is not an official and the commission of actions by him in connection with this, which entailed a significant violation of the rights and legitimate interests of citizens or organizations, -   

  are punishable by a fine in the amount of fifty to one hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of up to one month, or community service for a period of one hundred and twenty to one hundred and eighty hours, or correctional labor for up to two years, or arrest for up to three months.

     The object of the crime is the normal activity of the administrative apparatus (public service and public administration bodies).      

The objective side of the crime under Article 309 of the Criminal Code consists of the following two features:      

1) assignment of powers of an official;     

2) the commission by a person who has appropriated the powers of an official of any actions that have entailed a significant violation of the rights and legitimate interests of citizens or organizations.     

The assignment of authority to an official means that the perpetrator is deceitfully posing as an official and exercising his powers.     

The law considers the consequence of a significant violation by such actions of the rights and legitimate interests of citizens or organizations, which is causally related to the illegal actions of a civil servant who appropriated the powers of an official, to be a prerequisite for criminal liability for the appropriation of the powers of an official.      

Therefore, in itself, the appropriation of the powers of an official that is not associated with causing socially dangerous consequences in the form of a significant violation of the rights and legitimate interests of citizens or organizations is not a crime.      On the subjective side, the crime is characterized by direct intent. The perpetrator is aware that he is arbitrarily appropriating the powers of an official, that on this basis he commits actions that significantly violate the rights and legitimate interests of citizens or organizations, and desires this.    

 When committing a crime on the basis of arbitrarily appropriated powers of an official, the deed is qualified collectively – under Article 309 of the Criminal Code of the Republic of Kazakhstan, as assignment of powers of an official, and under the article of the Criminal Code providing responsibility for the corresponding crime (for example, fraud, qualified under Article 177 of the Criminal Code).    

 The subject of the crime in question may be a civil servant who is not an official, i.e. who does not legally perform permanently, temporarily or under special authority the functions of a government representative, or who does not perform organizational, administrative or economic functions in state bodies for the same reasons.     

If such actions are committed by other persons who are not civil servants, they cannot be held responsible under this article, but, depending on the circumstances of the case, their actions may be qualified under other articles of the Criminal Code, for example, violation of the inviolability of the home (Articles 145 of the Criminal Code), causing harm to health (Articles 103-105 of the Criminal Code), extortion (Article 181 of the Criminal Code) or fraud (Article 177 of the Criminal Code) , etc.     

The crime in question must be distinguished from the abuse of official authority by the following criteria: when committing a crime under Article 307 of the Criminal Code of the Republic of Kazakhstan, the perpetrator abuses valid, legitimate powers, using them to the detriment of the interests of the service. The essence of the crime, which is referred to in Article 309 of the Criminal Code of the Republic of Kazakhstan, is to assign to the perpetrators the powers of an official that he does not possess.    

The subject of a crime under Article 307 of the Criminal Code of the Republic of Kazakhstan is a person authorized to perform state functions, or a person equated to him, and the subject of a crime under Article 309 of the Criminal Code of the Republic of Kazakhstan is a civil servant who is not legally recognized as 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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