On the question of qualification rules of factual error in the draft of the new Criminal code of Ukraine (updated as of 05/22/2023)

Abstract

The article analyzes separate rules for the qualification of a factual error in accordance with the draft of the new Criminal Code of Ukraine as of May 22, 2023.
 The author concludes that the regulation of factual error in the draft Criminal Code of Ukraine has both positive and negative aspects. Among the positives, in particular, the very fact of the appearance of provisions on factual error and the attempt of drafters of the draft law to formulate at least the basic rules of criminal-legal qualification of situations related to factual error.
 Specific provisions of the draft Criminal Code of Ukraine are being studied. A number of specific comments and proposals have been formulated. In particular, according to the authors, the wording of part 2 of Art. 2.4.6 of the project «unreasonably believed» needs to be clarified, since it does not have a clearly defined content.
 The article also substantiates the need to make changes to the provisions provided for in Clause 1, Part 2 of Art. 2.4.6 of the draft Criminal Code of Ukraine, as its current edition raises serious questions regarding its content.
 In the opinion of the author of the scientific publication, the wording «unreasonably believed» is also unjustified, which is used in paragraph 2 of part 2 of Art. 2.4.6 of the draft Criminal Code of Ukraine, since in this case groundlessness or reasonableness does not affect the criminal-legal assessment of the situation.
 As a conclusion, the article notes that the variety of factual errors and their legal consequences excludes the possibility of formulating two generalized categorical rules of qualification (as proposed in Part 2 of Article of the draft CC). With the help of specific examples, it is proved that there should be many more such rules.
 The conclusion was formulated that the rule of qualification of excusable factual errors provided for in Part 3 of Art. Article 2.4.6 of the draft Criminal Code of Ukraine needs to be brought into line with the provisions on negligence, and an option for such coordination is offered. The proposed version: «The criminal law qualification does not take into account the elements of the criminal offense that the person did not understand and did not have the obligation or could not understand.»