Criminal liability for the creation of a criminal organization and criminal community, as well as their leadership

Abstract

The article is devoted to the study of actual theoretical and practical problems related to the most dangerous forms of the objective side of the crime provided for in Art. 255 of the Criminal Code of Ukraine, – the creation of organized criminal associations and their management.
 It has been established that the manifestations of the creation of a criminal organization and criminal community, as well as their leadership, can be different, depending on the purpose of these organized criminal associations, their structure, other individual characteristics and the environment of operation. A criminal organization can be created by one or several persons. At the same time, it is usually managed by two or more subjects, including the head of the structural unit. A person who created a criminal organization usually remains its leader until conviction, death or replacement by another leader. In addition to organizational and managerial functions, it usually commits crimes covered by the purpose of association, and therefore its actions require additional qualification according to the set of criminal offenses.
 It is argued that the management of a criminal organization does not cover the management of individual criminal offenses committed by its members, and requires additional qualification under the relevant part of the article containing grounds for criminal liability for these torts. Therefore, the management of a criminal organization or criminal community is primarily the management of their criminal activities in general.
 In order to eliminate discrepancies in uniform criminal law prohibitions, it is proposed to unify the provisions on the leadership of the structural part of organized criminal associations in the Criminal Code of Ukraine and its draft.
 Separation of the manager in Part 6 of Art. 255, as well as other articles of the Criminal Code of Ukraine (Part 5 of Article 110-2, Part 2 of Article 258-3, Part 4 of Article 258-5) was recognized as a mistake by the legislator, which needs to be resolved by amending the law on criminal liability.