Encouraging rule on exemption from criminal liability for the circulation of falsified medicines: problems of legislative construction

Abstract

The article is devoted to the analysis of the legislative structure of the encouraging rule, which contains a special type of exemption from criminal liability for the circulation of falsified medicines. It is argued that the effectiveness of the incentive norm is primarily determined by qualitative approaches to formulating the content of the grounds and conditions of exemption from criminal liability. The specificity of this special type of exemption from criminal liability is determined by a set of objective and subjective features of the crime under Article 321-1 of the Criminal Code of Ukraine. The public danger of this crime is significant, which is confirmed by its classification by the legislator as serious and especially serious crimes. It is established that the provision in the structure of this article of a legislative compromise in the form of encouragement, first of all, pursues the goal of rapid detection and prevention of crime by encouraging a certain type of positive post-criminal behavior of the guilty.
 The position on recognizing as a condition for exemption from criminal liability the commission of actions that are alternatively provided for in part one of Article 321-1 of the Criminal Code of Ukraine, namely the manufacture, purchase, transportation, shipment, storage for sale of counterfeit medicines. It is noted that in the chain of actions aimed at introducing counterfeit drugs into circulation according to the degree of public danger, these forms of the objective side are equivalent.
 In contrast to the positions previously expressed in the science of criminal law, it is proposed to determine the objective (danger of the most falsified drugs in terms of the composition of substances contained in it) and sub effective criteria (awareness of the person who acts in accordance with Part 1 of Article 321-1, these dangerous signs).
 It is established that the existence of alternative grounds for dismissal creates problems in the application of this rule. The expediency of refusing to indicate the source of purchase of counterfeit medicines is justified, as active assistance in solving the crime includes this circumstance. Emphasis is placed on the inclusion in the legislative structure of the encouraging rule also to add the limits of the implementation of post-criminal behavior - to criminal prosecution. Based on the above, an updated version of the considered encouraging rule is proposed.