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§ 3. Crimes against an order of execution of special services

Basically military men besides performance of the general duties constituting a being of daily execution of military service, carry out during certain time special the functions called in the theory by military-criminal law special kinds of military service.

Order of execution of special military services: guard, boundary, patrol, garrison, fighting watch and others are regulated by the army regulations, manuals, positions, instructions and orders. Their strict observance - a necessary condition of effective protection of Republic Kazakhstan from sudden assault, protection of the major state objects, combat material, the weapon, an ammunition, staff of military units and divisions.

Against an order of execution of special kinds of military service it is accepted to carry to crimes: infringements of rules of execution of fighting watch; infringements of rules of execution of boundary service; infringement of authorised rules of execution of guard (log) service; infringement of authorised rules of execution of internal service or patrol in garrison; infringement of rules of performance of duty on protection of a public order and public safety maintenance.

Structures of crimes against an order of execution of special kinds of military service, are characterised by set of the general signs which define object, the objective party, the subjective party and the perpetrator. A disposition of these articles concern to blanketnym. [295] As marks L.D.Gauhman, presence in the criminal code of norms with blanketnymi dispositions has double value. C one - positive - the parties, inclusion in

This UK norms with blanketnymi dispositions relieves the legislator of the description of signs of structures of the crimes which maintenance is opened in others - not criminal - laws and (or) other standard legal acts, and provides with that economy of the text of the Criminal code. C another - negative - the parties, presence in it UK such norms "washes away" the criminal legislation an abundance of others - not criminal - laws and other standard legal acts without which use it is impossible to apply the criminal law, and essentially complicates to practical workers of inquiry, a consequence and court, and also public prosecutors application of norms of the Criminal code. And references in blanketnyh norms on others, besides laws, standard legal acts create possibility to define sphere of the criminal liability not only the legislator, but also enforcement authorities. [296]

There is some generality and in designs of structures of these crimes.

The social danger of crimes of the given group, consists, first of all, that infringement of an order of execution of special kinds of military service involves injury to the objects which safety is provided as a result of the organisation and execution of these kinds of service, thereby causing a damage of battle readiness and fighting capacity of armies.

Object of the named crimes is the order of execution of the special service, which maintenance - strict execution by military men of rules of execution of the military service, providing safety of the state, safety of the important military and state objects, normal ability to live of armies and the decision of other problems providing battle readiness and fighting capacity of military units and divisions.

C the objective party the given group of crimes are expressed in infringement of special rules of the performance of duty provided by corresponding normative acts.

C the subjective party also have the general lines as can be made both it is deliberate, and it is careless. The purposes and motives are not elements essential to the offence, however their establishment has great value for an individualization of responsibility and otgranichenija from other crimes.

Subjects of crimes against an order of execution of special services are military men to whom discharge of duties on execution of this or that special service is assigned. They possess special powers, as a rule, have the discriminating signs, separate attributes etc.

In all articles providing responsibility for crimes, executions of special services encroaching 10 times, possibility is provided at extenuations clearing of the criminal liability.

Infringement of rules of execution of fighting watch (item 375 UK RK).

The social danger of the given corpus delicti consists that infringement of rules of execution of fighting watch can entail an irreparable harm of safety of the country and lower defensibility of the country. There can come even heavy consequences if only one operator or the signalman, radio engineerings or the pilot on duty etc. does not execute in due time the duties.

Object of a crime are the relations defining the established order of execution of fighting watch (fighting service), connected by timely detection and sudden assault reflexion on Republic Kazakhstan, and also the countries connected with safety. According to item 318 of the Charter of Internal service of Armed forces of Republic Kazakhstan (further UVS BC River K of tonics of the author) from November, 27th, 1998 «Fighting watch (fighting service) is performance of a fighting problem. It is carried out by forces on duty and the means appointed from military units and divisions of kinds of Armed forces and combat arms. The structure of forces on duty and means includes fighting calculations, crews of the ships and flying machines, changes of points of management on duty, forces and means of fighting maintenance and service».1 1 In Navy fleet fighting watch is called as fighting service which is the higher form of maintenance of alertness of forces of fleet in a peace time, identical on the main destination to fighting watch.

C the objective party infringement of rules of execution of fighting watch (fighting service) is expressed in default or inadequate performance of duties by persons to which execution of fighting watch is assigned. [297 [298]

Fighting watch agrees item 319 UVS BC River K from November, 27th, 1998 will be organised by commanders of military unit. It is responsible for performance of problems by forces on duty and means. Fighting watch is carried out by forces and means of military units and divisions of kinds of Armed forces and combat arms [299]. The structure of forces on duty and means, includes fighting calculations, crews of the ships and flying machines, changes of points of management on duty, forces and means of fighting maintenance and service.

According to item 326 UVS BC River K «to the Commander of forces on duty and means (to the operative person on duty, the chief of change, calculation, the person on duty of command point), is forbidden to give to staff orders which distract it from performance of duties on execution of fighting watch and can lead to failure of performance of a fighting problem.

At execution of fighting watch it is forbidden to staff of change (calculation) on duty:

- To transfer to somebody, at least and temporarily, discharges of duties on execution of fighting watch without the permission of the commander of forces on duty and means (the operative person on duty, the chief of change, calculation, command point on duty);

- To distract, be engaged in the affairs, not connected with performance of duties on execution of fighting watch;

- Autocratically to leave a fighting post or other place of execution of fighting watch;

- To spend works on arms and the combat material, reducing their established readiness ».1

The objective party of the given crime is expressed as in operation, and in inactivity: untimely detection and sudden assault reflexion on Republic Kazakhstan, in not maintenance of its safety, a dream on a post, autocratic leaving from fighting watch (fighting service), the use of spirits on a post, the untimely notification about the found out infringement during fighting watch etc. if it has entailed or could entail detrimenting to objects of fighting watch.

So, for example military men G and P are involved in the criminal liability that on February, 16th, 1972, being in structure of the reduced fighting calculation of the battery allocated for execution of fighting watch on protection of inviolability of air space of the USSR, rules of execution of fighting watch have broken: drank and autocratically left a position. [300 [301]

Under infringement of rules of execution of fighting watch which could harm interests of safety of the state, it is necessary to understand such act or omission which has created real threat to interests of safety of the state. Possibility of approach of harm is defined in each concrete case when the admitted infringements created real preconditions for approach of harm of safety of the state, but harm has not come owing to it предотвращения.1

Possibility of drawing of damages to various public relations to judiciary practice of military years was especially widely considered. N.D.dope wrote in this occasion: «Each socially dangerous action in the conditions of a wartime causes difficult and diverse harmful a consequence.... In the conditions of a wartime for an estimation of danger of act it is even more, than in a peace time, value the possibility of injury had, at least owing to coincidence of circumstances harm really and has not come» [302 [303].

It is necessary to mean, that for qualification of actions of military men under item 375 UK PK the causal relationship establishment between infringement of rules of execution of fighting watch and the come consequences or creation of threat of approach specified above consequences is necessary. A problem of an establishment of a causal relationship between act and a consequence - one of the most difficult in the criminal law theory. A number of monographies [304], their corresponding sections [305], scientific articles [306] and textbooks [307] is devoted this problem.

At the heart of distinctions of theories and causal relationship concepts in criminal law the unequal understanding of a category of causality from materialism and idealism positions lays. A causal relationship problem in the theory of the criminal

The rights it is authorised on the basis of philosophical doctrine about causality. It is necessary to agree with L.D.Gauhmanom who considers, that in criminal law, in particular, in the Criminal law, the causal relationship is not defined. [308]

In item 375 of Republic Kazakhstan UK the causal relationship is designated by the term "has entailed" and is an obligatory sign of the given crime. It is considered acts ended from the moment of fulfilment of actions under the circumstances designated in a disposition of given article and approach of consequences in the form of injury to interests of safety of the state, or heavy consequences (ch.ch. 2 and 3 items 375 UK RK).

The subjective party of a considered crime is expressed, as a rule, in the careless form of fault in the form of levity or negligence. At levity the person understands, that breaks rules of execution of fighting watch (fighting service), but without the sufficient bases to that self-confidently believes, that this infringement does not create real threat of injury to interests of safety, and at its occurrence self-confidently counts on prevention of this threat and bar of claim by lapse of time of their approach. At negligence the person does not understand, that breaks the rules named above and consequently does not expect real threat of approach of the consequences specified in the law, possibility of their approach. On occasion the acts provided by item 375 UK RK, can be made and is deliberate.

The military man who has taken up fighting watch (fighting service) when due hereunder and the admitted infringement of rules of its execution can be the subject of a considered crime. Military men are involved in execution of fighting watch (fighting service) both on an appeal, and under the contract. According to item 321 UVS BC River K «On fighting watch (fighting service) is forbidden to appoint the military men who have been not led to the Military oath, not acquired the program of corresponding preparation, in the established volume, made offences on which investigation is led, and patients» 1. Therefore they cannot be subjects of the given corpus delicti.

Fighting watch can bear division with its full complement. In this case any of military men of the division, entering by order of in fighting calculation, for infringement of rules of execution of fighting watch comes under to responsibility under item 375 UK RK.

However not any infringement of the military law and order made during execution of fighting watch, can form structure of a considered crime. Infringements obshchevoinskih the duties which have been not connected with performance of a fighting problem, the military men bearing fighting watch, as a rule, cannot be recognised by infringement of rules of fighting watch. [309 [310]

The part of 1 analyzed article of the Criminal code provides a liability of infringement of rules of execution of fighting watch (fighting service) on timely detection and sudden assault reflexion on Republic Kazakhstan, or on maintenance of its safety if these act has entailed or could entail injury to interests of safety of the state. It is punished by restriction on military service for the term up to two years, or arrest for the term up to six months, or the maintenance in disciplinary military unit for the term up to two years, or imprisonment for the term from one year till five years.

The part 2 items 375 of Republic Kazakhstan UK establishes responsibility in the presence of a qualifying sign - approaches of a heavy consequence and provides punishment by imprisonment for the term from three till ten years. By heavy consequences can be recognised: penetration on territory of Kazakhstan of foreign military men, prospecting planes, the ships,  destruction of people, a conclusion out of operation combat material, failure of the important fighting action, etc. Listed consequences are alternative and separate damages on weight, as a rule, are not identical. As, each of damages has various severity level. So, failure of the important fighting action can be estimated in time from several minutes about several days. A material damage as a result of a conclusion out of operation combat material - from several tens thousand to several millions tenge. Approach of these consequences are covered by the objective party of the given structure of military crime and does not attract qualification under other articles of the criminal law.

The part 3 items 375 UK PK provides responsibility for acts specified by parts of the first and the second in a wartime. Are punished by imprisonment for the term from five till twenty years or a death penalty, or lifelong imprisonment.

As it has been specified above given article, has the note: the Military man who for the first time has made act, provided by a part of first present article, at extenuations can be released court from the criminal liability.

Infringement of rules of execution of boundary service (item 376 UK RK).

Protection of frontier of Republic Kazakhstan on a land, by the sea, the rivers and other reservoirs is carried out by Boundary service and represents system of the political, legal, military, economic, regime, operative, information and other measures spent for the purpose of protection and protection of the state interests of Kazakhstan, its independence, the sovereignty and territorial целостности.1 According to item 1 the Republic Kazakhstan Law «About Boundary service of Committee of national safety Pec -

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A source: MOLDABAEV Sarkytbek Sarsembaevich. MILITARY CRIMES In REPUBLIC Kazakhstan: the MODERN CONDITION And the COUNTERACTION MECHANISM (kriminologichesky and the criminally-legal analysis). The DISSERTATION on competition of a scientific degree of the doctor of juridical science. St.-Petersburg. 2005

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