Commentary to article 307. Abuse of official powers of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. The use by a person authorized to perform state functions or a person equated to him of his official powers contrary to the interests of the service in order to extract benefits and advantages for himself or other persons or organizations, or to harm other persons or organizations, if this has entailed a significant violation of the rights and legitimate interests of citizens or organizations or the legally protected interests of society or states, -
is punishable by a fine in the amount of one hundred to two hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of one to two months, or by deprivation of the right to hold certain positions or engage in certain activities for up to three years, or by arrest for up to four months, or by imprisonment for up to two years.
2. The same act committed by an official, -
is punishable by a fine in the amount of three hundred to five hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of three to five months, or by deprivation of the right to hold certain positions or engage in certain activities for up to five years, or by imprisonment for up to four years.
3. The same act committed by a person holding a responsible public position, -
is punishable by a fine in the amount of five hundred to eight hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of five to eight months, or by imprisonment for up to six years with or without deprivation of the right to hold certain positions or engage in certain activities for up to five years.
4. The acts provided for in the first, second or third parts of this Article, entailing grave consequences, -
are punishable by imprisonment for a term of up to eight years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to seven years.
Notes.
1. Persons authorized to perform state functions include officials, deputies of Parliament and maslikhats, judges and all civil servants in accordance with the legislation of the Republic of Kazakhstan on civil service.
2. Persons authorized to perform state functions are equal to:
1) persons elected to local government bodies;
2) citizens registered in accordance with the procedure established by law as candidates for President of the Republic of Kazakhstan, deputies of the Parliament of the Republic of Kazakhstan and maslikhats, as well as members of elected local government bodies;
3) employees who permanently or temporarily work in local self-government bodies, whose remuneration is made from the funds of the state budget of the Republic of Kazakhstan;
4) persons performing managerial functions in state organizations and organizations in whose authorized capital the state's share is at least thirty-five percent.
3. Officials are recognized as persons who permanently, temporarily or by special authority perform the functions of a government representative or perform organizational, administrative or administrative functions in state bodies, local governments, as well as in the Armed Forces of the Republic of Kazakhstan, other troops and military formations of the Republic of Kazakhstan.
4. Persons holding responsible public office are understood to mean 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 state functions and powers of state bodies, as well as persons holding political positions of civil servants in accordance with the legislation of the Republic of Kazakhstan on civil service.
5. Crimes provided for in paragraph (d) of the third part of Article 176, paragraph (a) of the third part of Article 193, paragraph (a) of the third part of Article 209, Article 307, paragraph (c) of the fourth part of Article 308, Articles 310-315, Article 380 of this Code are recognized as corruption crimes in cases where the persons who committed them received property benefits and advantages
The essence of the crime provided for in Article 307 of the Criminal Code of the Republic of Kazakhstan is that a person authorized to perform state functions, or a person equated to him or an official, uses the official powers granted to him contrary to the interests of the civil service.
The object of abuse of official authority is the normal operation of the State apparatus. Since criminal abuse of official authority leads to a significant violation of the rights and legitimate interests of citizens, organizations, and legally protected interests of society and the state, along with the main direct object, there are additional objects that, depending on the circumstances of the crime, may include the constitutional rights and freedoms of man and citizen, property and other economic interests of citizens, organizations, and organizations. or the state.
The objective side of this crime is characterized by the use by a person authorized to perform state functions or a person equated to him of his official powers contrary to the interests of the service in order to extract benefits and advantages for himself or other persons or organizations or to harm other persons or organizations if this has entailed a significant violation of the rights and legitimate interests of citizens or organizations or protected the law of the interests of society or the state. Under the interests of the civil service, in accordance with Article 1 of the Law of the Republic of Kazakhstan dated July 23, 1999. (as amended and supplemented) "On Civil Service", it means "the activities of civil servants in the performance of official duties aimed at the implementation of tasks and functions of state power."
The powers of a subject are determined by its competence, established in the relevant laws, regulations and other normative acts, which regulate the rights and obligations of a person holding a particular position, either temporarily or by special authority of the acting officer in this position. Therefore, the use of a person's official powers should be understood only as an act of a person that arose from his authority and was related to the exercise, contrary to the interests of the service, of the rights and duties that this person is endowed with by virtue of his position. Consequently, there will be no corpus delicti for this crime when a person, seeking the decision he needs, uses not his powers, but official or personal connections, the authority of his position, etc. In the event of socially dangerous consequences of such behavior, one can speak not of abuse of official authority provided for in art. 307 of the Criminal Code of the Republic of Kazakhstan, but of a common crime.
An act is considered to have been committed contrary to the interests of the service, if it is not caused by official necessity. At the same time, the interests of the service, contrary to which a person uses his official powers in this case, are determined not only by the needs of the functioning of a particular state body or governing body, but also by the interests of the activities of the public apparatus as a whole.
The specific forms of abuse of official authority are very different, since they are committed in a wide variety of fields of activity of persons authorized to perform government functions, or persons equated to them. This may be illegal exploitation of labor (for example, the use of subordinates in apartment repairs); the use of official position in the process of privatization of state-owned enterprises in order to acquire them into private ownership.; illegal transfer of finances and loans intended for national needs to commercial organizations for selfish or other motives; use of advantages not provided for by legal acts in obtaining loans, loans, real estate, other property, etc.
A crime should be considered completed from the moment of a significant violation of the rights and legitimate interests of citizens or organizations, or of State or public interests protected by law, which is causally related to the relevant behavior of a person contrary to the interests of the service.
First of all, the infliction of material harm to law-enforcement facilities should be recognized as significant. Material damage (losses) caused by a person authorized to perform government functions, or a person equivalent to him, can be both in the form of material damage and in the form of lost profits.
Physical harm will be considered a significant violation of a citizen's rights if it results in causing at least minor harm to health.
A significant violation of the legally protected interests of society and the state may consist in creating serious interference and disruption in the work of state bodies of local self-government, undermining their authority, concealing or condoning the commission of crimes, etc.
The subjective side of abuse of official authority is a crime committed with direct or indirect intent. The guilty person is aware that they are acting (or not acting) contrary to the interests of the service, using official powers, which may result in consequences that significantly violate the legally protected rights and interests of citizens, organizations, state or public interests, who wants or consciously allows consequences to occur or treats them indifferently. With regard to the consequences, the direct or indirect intent of the perpetrator is often vague, when a person anticipates socially dangerous consequences, their size is only in general terms, but wants or consciously allows any of the possible consequences.
An obligatory sign of the subjective side of official abuse is the goal of extracting benefits and advantages for oneself or other persons or organizations, or causing harm to other persons or organizations, i.e. obtaining property benefits without illegal gratuitous circulation of state or public funds for one's own benefit or for the benefit of third parties.
The subjects of the crime provided for in Article 307 of the Criminal Code of the Republic of Kazakhstan are persons authorized to perform state functions, or persons equated to them, officials, as well as persons holding a responsible public position.
According to paragraph 1 of the note to Article 307 of the Criminal Code, persons authorized to perform state functions include officials, members of Parliament and maslikhats, judges and all civil servants in accordance with the legislation of the Republic of Kazakhstan on civil service.
Deputies of the Parliament of the Republic of Kazakhstan, by virtue of their special status, are representatives of the legislative branch, have a wider range of powers, whose legal status is determined by The Constitutional Law of December 26, 1995 (with amendments and additions) "On the Parliament of the Republic of Kazakhstan and the status of its deputies". The Parliament of the Republic of Kazakhstan is the highest representative body performing legislative functions. The powers of a deputy begin from the moment of his registration as a member of Parliament of the Central Election Commission.
The deputy of the Maslikhat expresses the will of the population of the relevant administrative-territorial units, taking into account the national interests. The powers of a deputy of the Maslikhat are regulated The Law of the Republic of Kazakhstan "On Local Public Administration in the Republic of Kazakhstan" dated January 23, 2001 (as amended and supplemented).
Judges constitute a special category of persons authorized to perform State functions. Judicial power is exercised on behalf of the Republic of Kazakhstan and is intended to protect the rights, freedoms and legitimate interests of citizens and organizations, ensure the implementation of the Constitution of the Republic of Kazakhstan, laws and other normative legal acts, international treaties of the Republic (paragraph 1 of Article 76 of the Constitution of the Republic of Kazakhstan). Decisions, verdicts and other court rulings are binding on the territory of the Republic (paragraph 3 of Article 76 of the Constitution of the Republic of Kazakhstan). According to According to the Constitutional Law of the Republic of Kazakhstan "On the Judicial System and the Status of Judges of the Republic of Kazakhstan" dated December 25, 2000, judicial power in the Republic of Kazakhstan belongs only to courts represented by permanent judges, as well as jurors involved in criminal proceedings in cases and in accordance with the procedure provided for by law. Judges are independent in the administration of justice and obey only the Constitution and the law. It is not allowed to adopt laws and other normative legal acts that detract from the status and independence of judges. A judge is empowered to administer justice, performs his duties on an ongoing basis, and is the bearer of judicial authority. A judge may not be assigned extra-judicial functions and duties not provided for by law. A judge may not be included in government structures responsible for combating crime, maintaining law and order. Thus, it can be concluded that judges are the bearers of independent authority – judicial power. They should be classified as officials who perform the functions of a government representative. Therefore, the assignment of judges to persons authorized to perform state functions is, in our opinion, unsuccessful and artificial, which does not contribute to the fight against corruption crimes. The legal status of civil servants is defined by the Law of the Republic of Kazakhstan "On Civil Service in the Republic of Kazakhstan" dated July 23, 1999. (as amended and supplemented) Civil servants in accordance with the legislation of the Republic of Kazakhstan are classified into two types: political civil servants and administrative civil servants. Political civil servants include: persons appointed by the President of the Republic of Kazakhstan, their deputies; persons appointed and elected by the Chambers of the Parliament of the Republic of Kazakhstan and the chairmen of the chambers of Parliament, their deputies; representatives of the President and the Government in accordance with the Constitution of the Republic of Kazakhstan; heads (heads) of central electoral bodies and departments, their deputies, as well as other positions held, determined by the President of the Republic of Kazakhstan. Administrative civil servants include civil servants who are not part of the political civil servants, who exercise official powers on a permanent, professional basis in a state body.
Thus, after analyzing the definition of persons authorized to perform public functions, it can be concluded that their functional duties are completely intertwined with those of an official. The legislator, in an effort to improve the hierarchy of legislation in the fight against corruption, has greatly complicated and complicated its application in law enforcement activities. In fact, there is a mixture of persons authorized to perform government functions and officials. In the light of the above, it seems advisable to exclude persons authorized to perform public functions from the list of subjects of corruption crimes.
In accordance with paragraph 2 of the note to Article 307 of the Criminal Code, persons authorized to perform state functions are equated with:
1) persons elected to local government bodies;
2) citizens registered in accordance with the procedure established by law as candidates for President of the Republic of Kazakhstan, deputies of the Parliament of the Republic of Kazakhstan and maslikhats, as well as members of elected local government bodies;
3) employees who permanently or temporarily work in local government bodies, whose wages are paid from the state budget of the Republic of Kazakhstan;
4) persons performing managerial functions in state organizations and organizations in whose authorized capital the state's share is at least thirty percent.
In my opinion, the position of the legislator, which provides for persons who are equivalent to those authorized to perform state functions, as the subject of corruption crimes, cannot be considered successful, since they do not perform any state functions.
Officials. In accordance with Part 3 of the note to Article 307 of the Criminal Code of the Republic of Kazakhstan, officials are persons who permanently, temporarily or by special authority perform the functions of a government representative or perform organizational, administrative or administrative functions in state bodies, local governments, as well as in the Armed Forces of the Republic of Kazakhstan, other troops and military formations of the Republic Kazakhstan. A representative of the authorities, according to note 1 to art. 320 of the Criminal Code of the Republic of Kazakhstan recognizes an official of a state body who, in accordance with the procedure established by law, has administrative powers over persons who are not dependent on him. For example, a government representative has the right to make demands and make decisions that are binding on citizens and organizations. These are officials of the Presidential Administration of the Republic of Kazakhstan, deputies of the Parliament of the Republic of Kazakhstan, members of the Government of the Republic of Kazakhstan, prosecutors, employees of the National Security Committee, the Ministry of Internal Affairs, judges and others.
Government representatives perform the functions of State power (legislative, executive, judicial). Legislative power is exercised by the Chambers of the Parliament of the Republic of Kazakhstan. In territorial entities, legislative power is exercised by regional, city and district maslikhats, which have the right to make, within their competence, binding decisions in force on the territory of this entity.
Executive power is exercised by the Government of the Republic of Kazakhstan and executive authorities.
The conclusion about whether an employee of a government agency is a representative of the government should be made after analyzing his powers, comparing them with laws and regulations, departmental regulations regulating the rights and duties of employees of various government agencies, services, committees, departments. Sometimes an indication of an employee as a representative of the government is given directly in the law.
Thus, when determining the status of police officers, one should refer to the Law of the Republic of Kazakhstan "On Internal Affairs Bodies" dated December 21, 1995 (as amended and supplemented). Article 20 of this law states: employees of internal affairs bodies are representatives of state authorities and are protected by the state. A similar instruction is contained in Article 17 of the Decree of the President of the Republic of Kazakhstan, which has the force of law dated December 5, 1995 (as amended and supplemented) "On the Republican Guard", Article 18 of the Law of the Republic of Kazakhstan dated June 23, 1992 (as amended and supplemented) "On the Internal Troops of the Ministry of Internal Affairs of the Republic of Kazakhstan", Article 18 of the law dated December 21, 1995 (as amended 81 of the Law of the Republic of Kazakhstan dated June 30, 1998 (as amended and supplemented) "On Enforcement Proceedings and the status of bailiffs". Z100000261_ In other cases, laws and regulations do not specify the status of employees, defining only the official position, duties and authority in relation to 3 of the Law of the Republic of Kazakhstan dated December 21, 1995 (as amended and supplemented) "On the Prosecutor's Office", the Law of the Republic of Kazakhstan dated November 22, 1996 "On Fire Safety", the Law of the Republic of Kazakhstan dated July 7, 1997. "On Bailiffs", the Code of the Republic of Kazakhstan dated June 12, 2001. "On Taxes and other mandatory payments to the budget" (Tax Code) and other regulations. K080000099_
The judicial branch, as specified in The Constitutional Law of the Republic of Kazakhstan dated December 25, 2000 "On the judicial system and the status of judges" is implemented only by the court and is intended to protect the rights, freedoms and legitimate interests of citizens, the rights and legitimate interests of government agencies, organizations, ensure the implementation of the Constitution of the Republic of Kazakhstan, laws, other regulatory legal acts, international treaties of the Republic.
Technical workers who carry out auxiliary activities in legislative, executive and judicial authorities (accountants, heads of business and legal departments, secretaries, consultants, assistants) cannot be recognized as government representatives, although some of them may be recognized as officials based on their organizational, administrative or administrative functions.
Under organizational and administrative functions based on paragraph 6 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 13, 2001. "On the practice of judicial review of criminal cases of corruption-related crimes," it is necessary to understand the powers of officials to lead the team, select and place personnel, organize the work of subordinates, maintain labor discipline, perform tasks assigned to the team, and the like. This category includes heads of ministries, state committees, their deputies, heads of departments, directorates, departments, sectors, services, and other structural divisions of government agencies, local governments, and the Armed Forces of the Republic of Kazakhstan.
An important indicator of belonging to this category of officials is the subordination of other employees or independent responsibility for a particular area of work.
Independent responsibility for a particular area of work should be understood as the official authority of an official, expressed, for example, in the right of an official on behalf of a government agency to issue official documents confirming a certain fact.
Administrative and economic functions, as stated in the above-mentioned regulatory decree of December 13, 2001, should be understood as the functions of officials, as a rule, associated with the authority to manage or dispose of state property, its storage, sale, to ensure control over these operations in a state body, a local government body, in relevant institutions and military formations.
This category of officials includes, for example, the deputy heads of the state body for economic affairs, responsible for the storage of material assets, accountants.
To recognize an employee of a state body or a local government body, or a military officer as an official, it is not necessary for him to have both organizational and administrative and economic functions within his competence, it is sufficient to have one of them or to have the authority of a government representative.
According to the law, a person may carry out organizational and administrative, administrative and economic functions of a government representative permanently, temporarily or by special authority.
Holding a position in a state or local government body temporarily or by special authority and performing organizational, administrative and economic functions is possible even without holding a position. The authority is granted for a period of time or to perform a specific task. The legislator does not provide any instructions on the procedure for granting temporary powers (by written order or orally). It seems that a person who temporarily performs certain duties or exercises special powers may be recognized as the subject of a crime, provided that these duties or powers are assigned to this person in accordance with the procedure established by law (resolution, order, written order of an authorized official, power of attorney, and the like).
Part 3 of Article 307 of the Criminal Code of the Republic of Kazakhstan provides for a qualifying sign of abuse of official authority, characterizing the characteristics of the subject of the crime.
Such is the commission of an act by a person holding a responsible public position.
According to Part 4 of the note to Article 307 of the Criminal Code of the Republic of Kazakhstan, 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 state functions and the powers of state bodies, as well as persons holding political positions of state bodies in accordance with the legislation of the Republic of Kazakhstan on civil service. employees.
The persons holding responsible public positions are: the President of the Republic of Kazakhstan, the Chairmen of the Chambers of the Parliament of the Republic of Kazakhstan, deputies, judges, the Chairman of the Government of the Republic of Kazakhstan, ministers, the Chairman of the Supreme Court, the Prosecutor General, the Chairman and members of the Constitutional Council, the Chairman of the National Bank and other senior officials holding positions established by the Constitution of the Republic of Kazakhstan and constitutional laws of the Republic of Kazakhstan. Kazakhstan.
The Law of the Republic of Kazakhstan dated July 23, 1999 (as amended and supplemented) "On Civil Service" states: a political civil servant is a civil servant, whose appointment (election), release and activity are politically decisive and who are responsible for the implementation of political goals and objectives.
In accordance with the Law of the Republic of Kazakhstan dated December 29, 1999 "On Civil Service", the President of the Republic of Kazakhstan by his The Decree "On approval of the register of positions of political civil servants and the rules of the procedure for imposing disciplinary penalties on political civil servants" approved the following Register of positions of political Civil servants: The Prime Minister of the Republic of Kazakhstan, his first Deputy and deputies; the Secretary of State of the Republic of Kazakhstan; the Head of the Presidential Administration of the Republic of Kazakhstan, his deputies; Head of the Office of the Prime Minister of the Republic of Kazakhstan, his first deputy and deputies; Ministers of the Republic of Kazakhstan, their first deputies and deputies; Assistant to the President of the Republic of Kazakhstan on National Security Issues - Secretary of the Security Council of the Republic of Kazakhstan, his deputies; assistants to the President of the Republic of Kazakhstan; Chairman and members of the Constitutional Council of the Republic of Kazakhstan; heads of state bodies, directly subordinates and accountable to the President of the Republic of Kazakhstan, their deputies; Chairman, Deputy Chairman, Secretary and members of the Central Election Commission of the Republic of Kazakhstan; Chairman and members of the Accounts Committee for Control over the Execution of the Republican Budget; Chairman and Executive Directors of the National Securities Commission of the Republic of Kazakhstan — members of the Commission; members (with the status of civil servants) and state inspectors of the State Commission of the Republic of Kazakhstan on Combating Corruption, Chairmen of disciplinary councils of regions, Astana and Almaty cities; Akims of regions, capital and cities of republican significance, their first deputies and deputies; Ambassadors Extraordinary and Plenipotentiary of the Republic of Kazakhstan; advisers to the President of the Republic of Kazakhstan; head of the Office of the President of the Republic of Kazakhstan, his deputies; heads of structural divisions of the Administration of the President of the Republic of Kazakhstan, their first deputies and deputies; Special Representatives of the President of the Republic of Kazakhstan; Director of the Archive of the President of the Republic of Kazakhstan Kazakhstan, its deputies; heads of the staff of the Senate and Mazhilis of the Parliament of the Republic of Kazakhstan, their deputies; State inspectors of the Organizational and Control Department of the Presidential Administration of the Republic of Kazakhstan; heads of central executive bodies outside the Government of the Republic of Kazakhstan, their deputies; Chairmen of committees with the rights of legal entities, their deputies, head of the Medical Center of the Office of the President of the Republic of Kazakhstan and his deputies mayors of cities, districts, towns in districts and districts in cities, villages, rural districts, towns, villages.
The presence of this qualifying circumstance in case of abuse of official authority is justified. The public danger of a crime increases significantly if the subject is a person with significant state powers and acting as a guarantor of lawful behavior. The higher the position of the subject of the crime, the more the interests and authority of the state may suffer. Accordingly, the degree of guilt of the person abusing official powers increases.
Acts provided for in parts 1,2,3 of Article 307 of the Criminal Code of the Republic of Kazakhstan that have serious consequences (Part 4 of Article 307 of the Criminal Code of the Republic of Kazakhstan) are recognized as a particularly qualified type of abuse of official authority.
Grave consequences should be understood as: a major accident, prolonged stoppage of transport or an industrial process, disruption of the work of a government agency or institution, causing material damage on an especially large scale, causing death or serious injury to at least one person, etc.
At the same time, in the case of intentional deprivation of life and causing serious harm to health by abuse of official authority, the act should be classified according to the totality of crimes – under Articles 307 and 96 or 103 of the Criminal Code of the Republic of Kazakhstan. In paragraph 5 of the note to Article 307 of the Criminal Code of the Republic of Kazakhstan, the legislator attributed 12 crimes to corruption, the list of which is exhaustive and is not subject to widespread interpretation.
Crimes provided for by the Legislation of the Russian Federation are considered corrupt.:
- paragraph "d" of Part 3 of Article 176 of the Criminal Code of the Republic of Kazakhstan (embezzlement or embezzlement of someone else's entrusted property, provided for in Parts 1 and 2 of this Article, committed by a person authorized to perform state functions, or a person equivalent to him, if they involve the use of his official position);
Technical workers who carry out auxiliary activities in legislative, executive and judicial authorities (accountants, heads of business and legal departments, secretaries, consultants, assistants) cannot be recognized as government representatives, although some of them may be recognized as officials based on their organizational, administrative or administrative functions.
Under organizational and administrative functions based on clause 6 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 13, 2001. "On the practice of judicial review of criminal cases of corruption-related crimes," it is necessary to understand the powers of officials to lead the team, select and place personnel, organize the work of subordinates, maintain labor discipline, perform tasks assigned to the team, and the like. This category includes heads of ministries, state committees, their deputies, heads of departments, directorates, departments, sectors, services, and other structural divisions of government agencies, local governments, and the Armed Forces of the Republic of Kazakhstan.
An important indicator of belonging to this category of officials is the subordination of other employees or independent responsibility for a particular area of work.
Independent responsibility for a particular area of work should be understood as the official authority of an official, expressed, for example, in the right of an official on behalf of a government agency to issue official documents confirming a certain fact.
Administrative and economic functions, as stated in the above-mentioned regulatory decree of December 13, 2001, should be understood as the functions of officials, as a rule, associated with the authority to manage or dispose of state property, its storage, sale, to ensure control over these operations in a state body, a local government body, in relevant institutions and military formations.
This category of officials includes, for example, the deputy heads of the state body for economic affairs, responsible for the storage of material assets, accountants.
To recognize an employee of a state body or a local government body, or a military officer as an official, it is not necessary for him to have both organizational and administrative and economic functions within his competence, it is sufficient to have one of them or to have the authority of a government representative.
According to the law, a person may carry out organizational and administrative, administrative and economic functions of a government representative permanently, temporarily or by special authority.
It is possible to hold a position in a state or local government body temporarily or under special authority and perform organizational, administrative and economic functions without holding a position. The authority is granted for a period of time or to perform a specific task. The legislator does not provide any instructions on the procedure for granting temporary powers (by written order or orally). It seems that a person who temporarily performs certain duties or exercises special powers may be recognized as the subject of a crime, provided that these duties or powers are assigned to this person in accordance with the procedure established by law (resolution, order, written order of an authorized official, power of attorney, and the like).
Part 3 of Article 307 of the Criminal Code of the Republic of Kazakhstan provides for a qualifying sign of abuse of official authority, characterizing the characteristics of the subject of the crime.
Such is the commission of an act by a person holding a responsible public position.
According to Part 4 of the note to Article 307 of the Criminal Code of the Republic of Kazakhstan, 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 state functions and the powers of state bodies, as well as persons holding political positions of state bodies in accordance with the legislation of the Republic of Kazakhstan on civil service. employees.
The persons holding responsible public positions are: the President of the Republic of Kazakhstan, the Chairmen of the Chambers of the Parliament of the Republic of Kazakhstan, deputies, judges, the Chairman of the Government of the Republic of Kazakhstan, ministers, the Chairman of the Supreme Court, the Prosecutor General, the Chairman and members of the Constitutional Council, the Chairman of the National Bank and other senior officials holding positions established by the Constitution of the Republic of Kazakhstan and constitutional laws of the Republic of Kazakhstan. Kazakhstan.
The Law of the Republic of Kazakhstan dated July 23, 1999 (as amended and supplemented) "On Civil Service" states: a political civil servant is a civil servant, whose appointment (election), release and activity are of a political-determining nature and who is responsible for the implementation of political goals and objectives.
In accordance with the Law of the Republic of Kazakhstan dated December 29, 1999 "On Civil Service", the President of the Republic of Kazakhstan, by his Decree "On approval of the Register of positions of political civil servants and the rules of the procedure for imposing disciplinary penalties on political civil servants", approved the following Register of positions of Political Civil Servants: the Prime Minister of the Republic of Kazakhstan, his First Deputy and deputies; Secretary of State of the Republic of Kazakhstan; Head of the Presidential Administration of the Republic of Kazakhstan, his deputies; Head of the Office of the Prime Minister of the Republic of Kazakhstan, his first deputy and deputies; Ministers of the Republic of Kazakhstan, their first deputies and deputies; Assistant to the President of the Republic of Kazakhstan on National Security Issues - Secretary of the Security Council of the Republic of Kazakhstan, his deputies; assistants to the President of the Republic of Kazakhstan; Chairman and members of the Constitutional Council of the Republic of Kazakhstan; heads of state bodies, directly subordinates and accountable to the President of the Republic of Kazakhstan, their deputies; Chairman, Deputy Chairman, Secretary and members of the Central Election Commission of the Republic of Kazakhstan; Chairman and members of the Accounts Committee for Control over the Execution of the Republican Budget; Chairman and Executive Directors of the National Securities Commission of the Republic of Kazakhstan — members of the Commission; members (with the status of civil servants) and state inspectors of the State Commission of the Republic of Kazakhstan on Combating Corruption, Chairmen of disciplinary councils of regions, Astana and Almaty cities; Akims of regions, capital and cities of republican significance, their first deputies and deputies; Ambassadors Extraordinary and Plenipotentiary of the Republic of Kazakhstan; advisers to the President of the Republic of Kazakhstan; head of the Office of the President of the Republic of Kazakhstan, his deputies; heads of structural divisions of the Administration of the President of the Republic of Kazakhstan, their first deputies and deputies; Special Representatives of the President of the Republic of Kazakhstan; Director of the Archive of the President of the Republic of Kazakhstan Kazakhstan, its deputies; heads of the staff of the Senate and Mazhilis of the Parliament of the Republic of Kazakhstan, their deputies; State inspectors of the Organizational and Control Department of the Presidential Administration of the Republic of Kazakhstan; heads of central executive bodies outside the Government of the Republic of Kazakhstan, their deputies; Chairmen of committees with the rights of legal entities, their deputies, head of the Medical Center of the Office of the President of the Republic of Kazakhstan and his deputies mayors of cities, districts, towns in districts and districts in cities, villages, rural districts, towns, villages.
The presence of this qualifying circumstance in case of abuse of official authority is justified. The public danger of a crime increases significantly if the subject is a person with significant state powers and acting as a guarantor of lawful behavior. The higher the position of the subject of the crime, the more the interests and authority of the state may suffer. Accordingly, the degree of guilt of the person abusing official powers increases.
Acts provided for in parts 1,2,3 of Article 307 of the Criminal Code of the Republic of Kazakhstan that have serious consequences (Part 4 of Article 307 of the Criminal Code of the Republic of Kazakhstan) are recognized as a particularly qualified type of abuse of official authority.
Grave consequences should be understood as: a major accident, prolonged stoppage of transport or an industrial process, disruption of the work of a government agency or institution, causing material damage on an especially large scale, causing death or serious injury to at least one person, etc.
At the same time, in the case of intentional deprivation of life and causing serious harm to health by abuse of official authority, the act should be classified according to the totality of crimes – under Articles 307 and 96 or 103 of the Criminal Code of the Republic of Kazakhstan. In paragraph 5 of the note to Article 307 of the Criminal Code of the Republic of Kazakhstan, the legislator attributed 12 crimes to corruption, the list of which is exhaustive and is not subject to widespread interpretation.
Crimes provided for by the Legislation of the Russian Federation are considered corrupt.:
- paragraph "d" of Part 3 of Article 176 of the Criminal Code of the Republic of Kazakhstan (embezzlement or embezzlement of someone else's entrusted property, provided for in Parts 1 and 2 of this Article, committed by a person authorized to perform state functions, or a person equivalent to him, if they involve the use of his official position);
- paragraph "a" of Part 3 of Article 193 of the Criminal Code of the Republic of Kazakhstan (legalization of funds or other property acquired illegally, provided for in Part 1 or 2 of this Article, committed by a person authorized to perform state functions, or a person equivalent to him, if they involve the use of his official position);
- paragraph "a" of Part 3 of Article 209 of the Criminal Code of the Republic of Kazakhstan (economic smuggling, provided for in Part 1 or 2 of this Article, committed by a person authorized to perform state functions, or a person equivalent to him, if they involve the use of his official position);
- Article 307 of the Criminal Code of the Republic of Kazakhstan (abuse of official authority);
- paragraph "b" of Part 4 of Article 308 of the Criminal Code of the Republic of Kazakhstan (abuse of power or official powers provided for in Parts 1, 2 or 3 of this Article in order to extract benefits and advantages for oneself or other persons or organizations or harm other persons or organizations);
310 of the Criminal Code of the Republic of Kazakhstan (illegal participation in entrepreneurial activity);
- Article 311 of the Criminal Code of the Republic of Kazakhstan (receiving a bribe);
- Article 312 of the Criminal Code of the Republic of Kazakhstan (giving a bribe);
- Article 313 of the Criminal Code of the Republic of Kazakhstan (mediation in bribery);
- art.314 of the Criminal Code of the Republic of Kazakhstan (official forgery);
- Article 315 of the Criminal Code of the Republic of Kazakhstan (inactivity in the service);
380 of the Criminal Code of the Republic of Kazakhstan (abuse of power, excess or inaction of power).
The crime provided for in Part 1 of Article 307 refers to crimes of minor gravity.
The crime provided for in Part 2 of Article 307 refers to crimes of moderate severity.
The crimes provided for in parts 3 and 4 of art. 307 are considered 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 adoption: NO Body that adopted the act: 180000000000 Region of operation: 100000000000 Registration number of the NPA assigned by the normative body: 167 Status of the act: new Scope of legal relations: 028000000000 Form of the act: COMM Legal force: 1900 Language of the act: rus
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