Умови правомірності, що стосуються діяння особи, яка зазнала примусу (за змістом статті 40 Кримінального кодексу України).

Abstract

In the article an analysis of subjective conditions of the legality of an act of a person who harms the interests of law-enforcement as an element of the basis for committing an act provided for in Article 40 of the Criminal Code of Ukraine.The mental or physical impossibility of a person to manage her actions as a condition of an act committed in a state of irresistible physical compulsion is considered in the context of establishing common and distinctive features between the concepts of physical and mental compulsion and extreme necessity. Foreign experience (criminal law of France, Spain and Sweden) for comparison with the relevant provisions of Ukrainian legislation was considered.Attention is drawn to the importance of juvenile delinquency, uncritical mental disorders, the presence of a state of affection for the qualification of compulsion. It is stated that this may create privileged conditions for identifying a person as being in a state of compulsion under Article 40 of the Criminal Code of Ukraine. The assessment criteria applied to different mental states or disorders of coerced person is provided. It is indicated in the necessity to assess the objective features of the committed act in determining the "impossibility to prevent harm by other means" as the conditions for the validity of this act. It was established that the emergence of the possibility of action within the framework of the necessary defense for a person should not affect the legitimacy of an act committed under the direct influence of physical or mental compulsion.The solution of some problematic issues that arise in determining the conformity of an act of a person who was compelled (in the context of Article 40 of the Criminal Code of Ukraine) with the content of the subjective conditions of the validity of such an act is proposed. Appropriate generalizations have been made based on the results of the analysis.