ПРОБЛЕМИ ВСТАНОВЛЕННЯ ВИНИ У ВИПАДКУ ВИЗНАННЯ ОСОБИ НЕОСУДНОЇ

Abstract

In the theory of criminal law, the issue of the relationship between the mental phenomena of sanity and guilt is not studied comprehensively. Most scholars who study sanity issues limit themselves to the assertion that sanity is closely related to guilt. At the same time, the specifical features of this relationship are practically not investigated. The scholars, as a rule, limit themselves to pointing out that sanity is a prerequisite for establishing guilt. According to this approach, it is considered that the solution of the issue of guilt can take place only after the previous positive solution of the issue of the sanity of the person. This position is questioned in the article. After all, from a philological point of view, a phenomenon that precedes another in time and exists separately from it can be called a prerequisite. Consequently, if sanity is considered a prerequisite for guilt, then the conclusion will be obvious that, at least, sanity and guilt as certain mental processes (special mental phenomena) do not coincide in terms of their existence. According to such an approach, sanity shall precede guilt by the time of its existence, it shall be separated from it by a time interval. At the same time, the wrongness of such a conclusion is obvious. After all, sanity and guilt as certain mental phenomena coincide in time – their existence is connected only with the time of the commission of a criminal offense. There can be no question of sanity or guilt of a person outside the time of committing a criminal offense. There is no sanity of a person who has not committed a criminal offense, there is no guilt of a person outside of a specific criminal offense. With all the independence of these phenomena for solving the issue of criminal responsibility of a person, their separation from each other can only be conditional. Just as it is conditional to distinguish such separate elements of corpus delicti as a subject and a subjective side. After all, as already indicated, the subject itself is the bearer of the subjective side, and therefore there can be no question of mechanical separation of the subjective side from the subject. The fact is that both sanity and guilt indicate a person`s mental attitude towards the same act and its consequences, if these consequences have criminal legal significance, and at the same time – the moment of committing a socially dangerous act. It is substantiated that from the point of view of the dialectical relationship between the phenomena of sanity and guilt, sanity can be called «psychic material», different forms of combination of which form different types of guilt, respectively. The relationship between these phenomena can be called the relationship of form and content, where sanity is the content, and guilt is the form. The issue of necessity for separate study and establishment of a mental attitude to a socially dangerous act and its consequences by a person who is recognized to be insane. It should be noted that such a question is not raised in the scientific literature at all, and the problem is not investigated. On the one hand, such presentation of the question is strange, because if an insane person is not the subject of a criminal offense and will not be subject to criminal liability under any conditions for committing a socially dangerous act, then why should we separately investigate mental processes in which no single kind of guilt can be established? Indeed, those pathological mental processes that take place in the psyche of an insane person have nothing to do with those intellectual and volitional features, with the help of which the concepts of certain kinds of guilt are defined. And formally, under no circumstances can the mental attitude of insane person towards the act he/she commits and its consequences be called guilt. At the same time, the position according to which it is impossible to ignore the peculiarities of the mental attitude of an insane person towards the act he/she commits and its consequences is substantiated in the article. After all, otherwise it is impossible to qualify the actions of such a person correctly, as well as to resolve the issue of applying a specific kind of medical coercive measure to him. It is substantiated that in such cases it is necessary to use a legal fiction that shall allow the definition of certain kinds of guilt to be applied to the mental processes that occur during the commission of a socially dangerous act by an insane person. The case law regarding this problem is analyzed.