About system legislative viruses and social foundations of creating a new system of the Criminal Code of Ukraine

Abstract

The article contains critical remarks about the draft of the new system of the Criminal Code of Ukraine, which is presented for discussion by its developers and is characterized by the presence of many new provisions. It is established that this system has significant shortcomings, which are associated with the incorrect reflection in the content of criminal law norms of the essential social features of crimes.
 To identify such shortcomings in the system of criminal law, the concept of "system legislative viruses" is highlighted and the need to have protection against such viruses in the system is substantiated. The necessity to distinguish between the legislative virus, the negative consequences of which in the form of human rights violations are local in nature, and the system legislative virus, the negative consequences of which are large-scale, is substantiated. Legislative viruses that result in violation of the principle of proportionality between punishment and social characteristics of acts are analyzed.
 Proposals for improving the system of the Criminal Code of Ukraine have been formulated. In particular, they concern the use of the category "public danger", which must perform a human rights function in the system of the Criminal Code of Ukraine. It is proposed to classify crimes using the social values ​​they encroach on and the extent of the damage that has been or may be caused. Emphasis is placed on the need to allocate at the law enforcement level the severity (danger) of the crime: 1) with particularly mitigating circumstances, 2) with mitigating circumstances, 3) without mitigating and aggravating circumstances, 4) with aggravating circumstances and 6) with especially aggravating circumstances. The court must impose penalties based on these degrees and the legal restrictions associated with them.
 The necessity of providing legal certainty on the social basis of criminal liability and restriction of rights for committing a crime, as well as on the legislative assessment of cases of simultaneous commission of several crimes and the rules of their qualification is substantiated.
 It is proposed to supplement the Criminal Code of Ukraine with Article 2-1 "Rule of Law", which will ensure justice in cases of errors made by the legislator and in other cases where there is a discrepancy between formal legal requirements and social characteristics of the crime.