Comment to Article 381. Negligent attitude to the service of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Negligent attitude of the boss or official to the service, which caused significant harm, —  

   is punishable by restriction on military service for a term of up to two years, or by arrest for a term of up to six months, or by imprisonment for a term of up to three years.    

2. The same act, which entailed grave consequences, —   

  is punishable by imprisonment for a term of up to seven years.    

3. The acts provided for in the first or second parts of this Article, committed during wartime or in a combat situation, —     

are punishable by imprisonment for a term of three to ten years.

     Note. A serviceman who has committed an act provided for in the first part of this article for the first time may be released from criminal liability under mitigating circumstances.

     The public danger of this act lies in the fact that it reduces the state's defense capability, leads to the disruption of military activities and the implementation of decisions taken.    

 The direct object of the crime in question is the established procedure for the activities of military commanders or other officials who ensure the combat capability and combat readiness of units, units and the Armed Forces, other troops and military formations of the Republic of Kazakhstan as a whole.   

  By committing this crime, a military official encroaches on the proper activities of military command bodies, since their task is to ensure the rights of the individual, legality and statutory order, and the safety of the material resources of the unit.  

   On the objective side, negligence is characterized by a combination of actions (improper performance of duties) and inaction (failure to perform them at all). In case of negligence, the boss or an official is negligent or unscrupulous about their official duties, that is, they inattentively, negligently or untimely perform them, show a formal attitude to their official duties, neglect them.   

  In accordance with paragraph 26 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On judicial practice in cases of military crimes", negligent attitude to service should be understood as non-fulfillment or improper fulfillment by a superior or other military official of his duties due to unfair or negligent attitude to service. Criminal liability for such acts occurs only in the event of significant harm or serious consequences.    

 Negligence differs from government inaction in that the latter is an intentional act. Inaction differs from abuse of power in that it is possible only in the sphere of the authority functions of the boss and only in the form of imperfection of the action that he had to perform by virtue of his official duties.   

  Non-fulfillment should be understood as non-fulfillment by the boss or official of the official functions assigned to him, failure to take measures that this person, in accordance with the scope of duties and rights, should have taken.  

   Improper performance is the unfair or negligent performance of one's functional duties.      At the same time, a person's behavior may combine non-fulfillment or improper fulfillment of duties. Both can be repeated (i.e., committed systematically), or a one-time, one-time occurrence.  

   Mandatory conditions for criminal liability for this crime are the occurrence of socially dangerous consequences in the form of causing significant harm, negligent attitude to service and the causal relationship between them. The behavior of a person in the service should directly and directly cause the onset of socially dangerous consequences. At the same time, failure to establish or prove a causal relationship excludes the composition of negligence.  

   The crime should be considered over from the moment of causing significant harm.   

  The subjective side of negligent attitude to service is expressed only by a careless form of guilt in the form of arrogance and negligence in relation to both the action (or inaction) and the criminal result — significant harm.   

  With criminal arrogance, the perpetrator foresees that significant harm to legally protected interests may be caused as a result of non-fulfillment or improper performance of his duties in the service, but thoughtlessly expects to prevent it.   

  It should be noted that arrogance is characterized by a conscious violation of specific rules that regulate the official duties of the perpetrator.   

  In case of negligence, the perpetrator does not foresee the possibility of criminal consequences as a result of his act, although, according to the circumstances of the case, he could and should have foreseen them.  

   The subject of a crime is a special, superior, or other official who permanently, temporarily, or under special authority performs the functions of a government representative or performs organizational, administrative, or administrative functions in the Armed Forces of the Republic of Kazakhstan.   

  381 of the Criminal Code of the Republic of Kazakhstan provides as a qualifying circumstance the infliction of grave consequences on these interests, the characteristics of which are similar to those of the grave consequences provided for in Part 2 of Article 380 of the Criminal Code of the Republic of Kazakhstan.    

 381 of the Criminal Code of the Republic of Kazakhstan considers as particularly qualifying circumstances the commission of acts provided for in Parts 1 and 2 of this Article in wartime or in a combat situation.     

The crime provided for in Part 1 of Article 381 of the Criminal Code of the Republic of Kazakhstan refers to crimes of moderate severity.  

   The crimes provided for in Parts 2 and 3 of art. 381 of the Criminal Code of the Republic of Kazakhstan are serious crimes.

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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