Delimitation of negligence from other malfeasances in office

Difficulties in delimitating negligence from other malfeasances in office are connected with the lack of their clear characteristics in criminal law. Negligence is a crime which can be committed by way of omission of an act. According to the interpretation of their characteristics in the Criminal Code of the Russian Federation (CC of RF), abuse of power and exceeding of powers can be committed only by way of affirmative actions. Negligence is a reckless crime while abuse of job powers and exceeding of job powers are intentional crimes. The problem is that the objective side of negligence has a complicated content. The attitude of an official to the breach of his duties can be different. On the one hand, an official can break his duties intentionally and consciously, on the other hand he can be not aware of breaking them. The analysis of court practice shows that the intentional and conscious breach of duties by an official is a frequent phenomenon. It is not excluded that the official breaks his duties in order to get either pecuniary or intangible benefits. Thus, the delimitation of negligence from abuse of official powers and exceeding of official powers according to a subjective side can be drawn only if we take into account the attitude of the guilty person to the socially dangerous consequences of his actions. The official either does not foresee all possible socially dangerous consequences of his actions though, being attentive and prudent he had to and could foresee them or he foresees the forthcoming socially dangerous consequences but unreasonably and arrogantly reckon on their prevention. The rule on forgery by an official is a special one against the rule on exceeding of official powers. The breach of official duties in due completing of official documents, control over their content that can unintentionally result in essential violation of rights and legal interests of citizens, organizations, society and state shall be classified according to Article 293 of the CC of RF. Unlike negligence the crimes provided for in Articles 299-301, 305 of the CC of RF are characterized by the action from an objective side and by a direct intent from the subjective side. The rules on these crimes are special ones against the rule on exceeding of official powers (when an official does the things not to be done by anyone under any circumstances). A judge can be brought before the criminal trial for negligence in case he does not perform his official duties, if his attitude towards illegal sentencing, judgement or any other judicial act that resulted in the violation of rights and legal interests of citizens, organizations, society and state was an unintentional one.

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