Comment to Article 328. Unauthorized assignment of the title of a representative of the government or an official holding a responsible public position of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Unauthorized assignment of the title of a representative of the government or an official holding a responsible public position, involving the commission of a crime on this basis, —
is punishable by restriction of liberty for a term of up to three years or imprisonment for a term of up to two years.
2. Unauthorized assignment of the title of an official holding a position established by the Constitution of the Republic of Kazakhstan in order to obtain authority, -
is punishable by restriction of liberty for a term of up to five years or imprisonment for the same term.
The public danger of the crime in question lies in the fact that a person arbitrarily, without legitimate grounds, assigns himself the title of a representative of the government or an official holding a responsible public position in order to commit a crime related to this, thereby violating the normal management procedure.
The object of the crime is the normal activities of the governing bodies.
The objective side of the crime under consideration includes: unauthorized assignment of the title of a representative of the government or an official holding a responsible public position, associated with the commission of a crime on this basis. In this case, it is necessary to establish a causal relationship between the assignment of the title and the crime committed on this basis.
The unauthorized assignment of the title of a representative of the government or an official holding a responsible public position should be understood as illegal actions through which a subject deceitfully impersonates a representative of the government or an official holding a responsible public position in order to commit another crime.
According to paragraph 1 of the note to Article 320 of the Criminal Code of the Republic of Kazakhstan, an official of a state body is recognized as a representative of the government, endowed with administrative powers in accordance with the procedure established by law in relation to persons who are not dependent on him.
Persons holding a responsible public position, in accordance with paragraph 4 of the note to Article 307 of the Criminal Code of the Republic of Kazakhstan, are understood to be persons holding positions established by the Constitution of the Republic of Kazakhstan, constitutional and other laws of the Republic of Kazakhstan for the direct performance of the functions of the state and the powers of state bodies, as well as persons holding, according to the legislation on civil service, political positions of civil servants. Political positions include positions held by political civil servants: those appointed by the President, their deputies,
appointed and elected by the Chambers of the Parliament of the Republic of Kazakhstan and the Chairmen of the Chambers, their deputies; who are representatives of the President and the Government in accordance with the Constitution;
the heads (heads) of central executive bodies and departments, their deputies.
The crime should be considered completed from the moment of unauthorized assignment of the title of a representative of the government or an official holding a responsible public position.
The subjective side of the crime is characterized only by direct intent.
The subject of a crime can only be a sane individual who has reached the age of 16. Officials for similar actions will be held liable under Article 308 of the Criminal Code of the Republic of Kazakhstan (abuse of power or official authority) in conjunction with the crime they committed.
Part 2 provides for liability for unauthorized assignment of the title of an official holding a position established by the Constitution of the Republic of Kazakhstan in order to obtain authority. Unlike Part 1 of this article, Part 2 presupposes a special purpose of obtaining authority.
Unauthorized assignment of a title differs from arbitrariness (Article 327 of the Criminal Code of the Republic of Kazakhstan) in that the perpetrator does not voluntarily exercise his actual or alleged right, but, on the contrary, commits a crime, realizing that he has no right to commit it. Unlike abuse of power or official powers (Article 308 of the Criminal Code of the Republic of Kazakhstan), the subject of the crime provided for in Article 328 of the Criminal Code of the Republic of Kazakhstan is not an official, but a private person, or if an official, then not holding a responsible public position and not being a representative of the authorities.
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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