Criminal-legal characteristic of crimes of corruption against the interests of public service and public administration

In accordance with paragraph 29 of article 3 of the Criminal Code and the provisions of Chapter 15, entitled " Corruption and other criminal offenses against the interests of public service and public administration" to the crimes in question include:

- Abuse of office (Art. 361);

- Abuse of power or official authority (art. 362, part 4, paragraph 3);

- Illegal participation in entrepreneurial activities (Art. 364);

- Obstruction of legitimate business (Art. 365);

- Accepting a bribe (Art. 366);

- Bribery (art. 367);

- Intermediation in bribery (art. 368);

- Forgery (Art. 369);

- Omission of the service (Art. 370).

Forgery - making it official (civil servant or employee of the local government, non-official) in the official documents of obviously false data, as well as distorting their actual content, if the acts are committed on mercenary prompting or other personal interest (formerly the actions were called official forgery).

This definition is important not only for qualifying action under Article 369 of the Criminal Code, but also for a correct understanding of the content of official crimes, limiting it by a disciplinary offense.

The main features defining the compounds of this class of offenses are:

1) assault on normal, legitimate activities of the state apparatus;

2) the act or omission of the person who violates the interests of the service, resulting in significant violation of the rights and legitimate interests of citizens, society and the state;

3) commission of crime officer;

4) an offense, willful or reckless.

Abuse of office (Art. 361 of the Criminal Code) is one of the most common corruption offenses. Under the abuse of power means the use of a person, the Commissioner in the performance of public functions or an equivalent person of his official powers against

the interests sluzh- to the purpose of deriving benefits and advantages for themselves or other persons or entities, or harm another person or entity. An act is considered corruption the following conditions:

a) causing significant damage to the rights and legitimate interests of citizens or organizations or legally protected interests of society or the State (Article 361 of the Criminal Code);

b) it was committed by an official (Article 361 of the Criminal Code);

c) it was committed by a person occupying a responsible public position (part three of Article 361 of the Criminal Code);

g) occurrence of serious consequences or the commission for the benefit of a criminal group (part four of Article 361 of the Criminal Code).

Penalties vary depending on the presence of the above features. These characteristics are the basis of determining the composition, with special qualifying characteristics. Thus, the first part is punishable:

- Basic - a fine of up to two thousand MCI or correctional work in the same amount; restriction of liberty for up to two years, or imprisonment for the same period;

- More - confiscation of property; lifelong deprivation of the right to occupy certain positions or engage in certain activities.

For the rest of the main features of punishment as follows:

- For the second part: a fine of up to four

thousand MCI or correctional work in the same amount, or restriction of liberty for up to four years, or imprisonment for the same period;

- On the part of a third: a fine of up to six thousand MCI or correctional work in the same amount, or restriction of liberty for up to six years, or imprisonment for the same period;

- On the part of the fourth: imprisonment for a term of four to eight years.

Additional penalties in parts of the second, third and fourth paragraph of Article 361 of the Criminal Code are the same as in the first part.

Under the abuse of power or official authority (Art. 362 of the Criminal Code) is commonly understood by a person authorized to perform public functions or an equivalent person in his actions, clearly exceed his rights and powers which caused significant damage to the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state.

According to the third part of the fourth paragraph of this article refers to the act of corruption under the conditions:

a) the occurrence of serious consequences;

b) the fulfillment of the purpose of deriving benefits and advantages for themselves or other persons or entities, or harm another person or entity.

For the commission of the offense is punishable by imprisonment for a term of five to ten years with confiscation of property, with a lifetime disqualification to hold certain positions or engage in certain activities.

Under the illegal participation in entrepreneurial activity (article 364 of the Criminal Code) means the establishment of a person authorized to perform public functions or an equivalent person of an organization engaged in entrepreneurial activity, or participation in the management of an organization in person or by proxy, contrary to the prohibition established by law if the act is related to the provision of such an organization privileges and advantages or patronage in a different form.

Qualifying features are:

- The act is committed by an official (Article 364 of the Criminal Code);

- The act is committed by a person occupying a responsible public position (part three of Article 364 of the Criminal Code).

As pointed out by criminologists, a prerequisite for a conviction is a direct relation of the subject of action (agency of the business or participate in the management of such an organization) with the provision of entrepreneurial organization privileges and advantages (eg tax, expert, extraordinary receipt of goods, raw materials, participation in the auction, etc.) or other protection (exemption from inspections, audits, creation of other favorable conditions, etc.)

For the commission of a corruption offense has the following penalties:

- For the first part of Article 364 of the Criminal

Code: the main - a fine of up to one thousand MCI or correctional work in the same amount, or restriction of liberty for up to one year, or imprisonment for the same period; extra - confiscation of property, deprivation of the right to occupy certain positions or engage in certain activities;

- On the second part of Article 364 of the Criminal Code - the main - a fine of up to two thousand MCI or correctional work in the same amount, or restriction of freedom for up to two years, or imprisonment for the same period;

- On the third part of Article 364 of the Criminal Code: the main - a fine of up to four thousand MCI or correctional work in the same amount, or restriction of liberty for up to four years, or imprisonment for the same term.

In parts two and three of Article 364 of the Criminal Code provide for additional penalties, and that the first part of the same article.

According to article 365 of the Criminal Code under the impeding legitimate business meant restriction of the rights and legitimate interests of individual businessman or commercial organization irrespective organizatsionnopravovoy shape or form of ownership, as well as restriction of independence or other illegal intervention in activity of individual businessman or commercial organization if these acts were committed a person authorized to perform public functions or an equivalent person using his official powers against the interests of the service in order to reap the benefits and advantages for himself or other persons or entities, or harm another person or entity, if it caused significant damage to the rights and the legitimate interests of citizens or organizations or legally protected interests of society or the state.

On the offense in question, the highest criminological activity accounted for middle-aged people from 30 to 45 years old. According to S. Umbetalieva among the perpetrators of these crimes, employees of tax authorities comprise 45.4% of local agencies - 36.3% of the sanitary-epidemiological and veterinary supervision - 18.1%. For crimes in rural areas account for 63.6%, in the city - 36.3% *.

This offense includes the following main types of punishment:

- For the first part of Article 365 of the Criminal Code - a fine of up to two thousand MCI or correctional work in the same amount, or restriction of freedom for up to two years, or imprisonment for the same period;

- On the second part of Article 365 of the Criminal Code (the offense is committed: a) by an official; b) a group of persons by prior conspiracy; c) a large scale) - a fine of up to five thousand MCI or correctional work in the same amount, or restriction of liberty for up to five years, or imprisonment for the same period;

- On the third part of Article 365 of the Criminal Code (the offense is committed: a) by a person occupying a responsible public position; b) on a large scale; c) criminal group or in the interests of a

criminal group) - restriction of freedom for a term of three to seven years, or imprisonment for the same

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*См.: Умбеталиев С.С. Проблемы предупреждения воспрепятствования законной предпринимательской деятельности. – Алматы: «Ө ркениет». - 2002. – С. 42-43.

term.

As additional penalties on all three parts of article 365 of the Criminal Code are: confiscation of property, deprivation of the right to occupy certain positions or engage in certain activities.

According to article 366 of the Criminal Code under taking bribes meant getting a person authorized to perform public functions or an equivalent person, or person occupying a responsible public office or official, as well as an official of a foreign state or an international organization in person or through an intermediary, bribery in the form of money, securities, other property, property rights or property benefits for themselves or others for the actions (inaction) in favor of the briber or persons represented by him, if such actions (inaction) are included in the official credentials of the person, or it by virtue of official position can promote such actions (inaction), as well as general patronage or connivance.

Money in the bribery can be presented both in national and foreign currency, regardless of their form - in denominations (banknotes), coins. It is important to distinguish between: a) whether they are walking, if used at the present time to conduct settlement (funded) operations; b) if they come from money circulation and represent a collectible numismatics

If money is an asset for kollektsirovaniya, but not in the real money back then as a bribe, they do not refer to the money, but to " other assets".

The securities include bonds, stocks, bills, checks, certificates of deposit, bills of lading, letters of credit, etc.

Under other assets refer to any objects of material value, such as jewelry, furniture, cars, and other household appliances, clothes, food, etc.

The property benefits are considered, for example, the organization of tourist trips, renovated apartment on apparently low prices.

For the commission of bribery includes the following main types of punishment:

- For the first part of Article 366 of the Criminal Code - a fine of fifty times the amount of bribes or imprisonment for up to five years;

- On the second part of Article 366 of the Criminal Code (committing acts of a considerable size, as well as taking a bribe for illegal actions (inaction) - fine shestidesyatikratnoy amount of the bribe or imprisonment for a term of three to seven years;

- On the third part of Article 366 of the Criminal Code (the offense is committed: a) by extortion; b) by a group or by prior agreement; c) on a large scale; d) repeatedly) - a fine semidesyatikratnoy amount of the bribe or imprisonment for a term of seven to twelve years;

- On the fourth part of Article 366 of the Criminal Code (offense committed by a criminal group, as well as on a large scale) - a fine vosmidesyatikratnoy amount of bribes or imprisonment from ten to fifteen years.

For all four parts of Article 366 of the Criminal Code provide for additional penalties:

- Confiscation of property;

- Lifelong deprivation of the right to occupy certain positions or engage in certain activities.

Extortion is the requirement to pass someone else's property or right to property or commit other acts of material nature under threat of violence or destruction or damage of another's property, as well as under the threat of information that defames the victim or his family or other information that could cause substantial harm rights or legitimate interests of the victim or his family (see. Article 194 of the Criminal Code).

By accepting a bribe is closely related corruption insulating crime - a bribe. In accordance with Article 367 of the Criminal Code for bribery is a transfer subject of a bribe to a person authorized to perform public functions or an equivalent person or a person occupying a responsible public office or official, as well as an official of a foreign state or international organization or person through an intermediary.

Depending on the nature of the ensuing risk if bribery, article 367 of the Criminal Code provides for four parts. In the first part includes the main types of punishment: a fine of twenty times the amount of bribes or imprisonment for up to three years.

In the second part of Article 367 of the Criminal Code (committing an act in a significant amount) OS-provided mainly penalties: a fine of thirtyfold amount of bribes or imprisonment for up to five years.

In part three of Article 367 of the Criminal Code (committing acts of a group of persons by prior agreement, on a large scale, many times) provided the main types of punishment: a fine of sorokakratnoy amount of bribes or imprisonment for a term of seven to twelve years.

In the fourth part of Article 367 of the Criminal Code (committing an act on a large scale or a criminal group of persons by prior agreement) provided the main types of punishment: a fine of fifty times the amount of bribes or imprisonment for a term of ten to fifteen years.

For all four parts of Article 367 of the Criminal Code provide for additional penalties: confiscation of property; lifelong deprivation of the right to occupy certain positions or engage in certain activities.

For corruption offenses include mediation in bribery under Article 368 of the Criminal Code.

Under the mediation of bribery is meant to contribute to the briber and bribe-taker to achieve or implement the agreement between the receiving and giving bribes.

Promotion may be composed in the conduct of certain negotiations between the interested subjects of bribery, the organization of meetings between the briber and the bribe taker, the negotiation of the commission of bribery, direct transfer from a bribe briber and bribe-taker, etc.

The peculiarity of the intermediary is that he is or comes into contact with and the briber and the bribe taker with. He serves as a transfer link.

Article 368 of the Criminal Code, there are two parts. In the first part as the main forms of punishment are: a fine of ten times the amount of bribes or imprisonment for up to two years.

In the second part of Article 368 of the Criminal Code (committing an act or repeatedly criminal group or by a person using his official position) provided the main types of punishment: a fine of twenty times the amount of bribes or imprisonment for up to six years.

On both parts of Article 368 of the Criminal Code provide for additional penalties: confiscation of property; lifelong deprivation of the right to occupy certain positions or engage in certain activities.

In accordance with Article 369 of the Criminal Code corruption offenses include forgery.

Under forgery meant making a person authorized to perform public functions or an equivalent person in the official documents of false information or the introduction of the said documents distorting their actual content or the issuance of false or forged documents, if these acts are committed in order extracting benefits and advan-societies for themselves or other persons or entities, or harm another person or entity.

A feature of the documents subjected to criminal influence is that they will come from the public authority. As these documents, as previously stated, are: employment history, education diploma, passport, military ID, retirement, work ID, vehicle registration document, etc.

There are two kinds of forgery: the material and intellectual. Material forgery - is a complete compilation of false documents both in form and content, fake signature stamp printing, print, etc. Intelligent fraud - is the preservation of an original document with the introduction of falsified information in it. For example, in true form diploma of education included information on the person (document holder), which is never in the school does not teach. In this form, sign, seal - original, and data (information) in this document - falsified.

Article 369 of the Criminal Code, there are three parts. For an act established the basic punishment:

- For the first part: a fine of up to two thousand MCI or correctional work in the same amount, or restriction of freedom for up to two years, or imprisonment for the same period;

- On the second part (the act is committed by an official): a fine of up to three thousand MCI or correctional work in the same amount, or restriction of freedom for up to three years, or imprisonment for the same period;

- On the third part (act committed by a person occupying a responsible public position): restriction of liberty from three to six years, or imprisonment for

the same term.

In all three parts of article 369 of the Criminal Code provide for additional penalties: confiscation of property; lifelong deprivation of the right to occupy certain positions or engage in certain activities.

According to article 370 of the Criminal Code recognizes failure to act in the service failure by a person authorized to perform public functions or an equivalent person of their duties in order to reap the benefits and advantages for himself or other persons or entities, or causing harm to other persons or organizations, if this has involved a material breach of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state.

Inaction necessarily mean that certain actions that the person should have to make, but not committed, - fall within the scope of his official duties. At the same time the person was a real opportunity to take these actions. Inaction can be completely passive (pure inaction), partial (improper execution, partial, incomplete performance of their duties).

Article 370 of the Criminal Code has four parts.

The main forms of punishment are set:

- For the first part of Article 370 of the Criminal Code - a fine of up to two thousand MCI or correctional work in the same amount, or restriction of freedom for up to two years, or imprisonment for the same period;

- On the second part of Article 370 of the Criminal Code (committing an act by an official) - a fine of up to three thousand MCI or correctional work in the same amount, or restriction of freedom for up to three years, or imprisonment for the same period;

- On the third part of Article 370 of the Criminal Code (offense committed by a person occupying a responsible public position) - a fine of up to five thousand MCI or correctional work in the same amount, or restriction of liberty for up to five years, or imprisonment for the same term;

- On the fourth part of Article 370 of the Criminal Code (act resulted in grave consequences) - deprivation of liberty for a term of four to eight years.

For all four parts of Article 370 of the Criminal Code provide for additional penalties: confiscation of property; lifelong deprivation of the right to occupy certain positions or engage in certain activities.