Problematic issues of subjective attitude of the guilty party to qualifying objective fea- tures of a criminal offense’s corpus delicti

Abstract

The paper is focused on the problem of the mental attitude of a person to the objective features of a criminal offense’s corpus delicti, which aggravate criminal liability. Particular attention is paid to the mental attitude of the guilty party to qualifying features that are objective in nature. They include the particular features of the victim (age, occupation), the object (cost, size), objective aspect (generally dangerous method, special place of encroachment), consequences (severe consequences, significant damage, death of a human being). It is substantiated that the prin-ciple of subjective attitude to the guilt requires in the criminal law of Ukraine that the subjective assessment of the guilty party should be extended to such circumstances that aggravate criminal liability (qualifying features). The criminal legislation and a number of monographic works of modern Ukrainian experts in criminal law have been analyzed. The approaches of the legislator and representatives of the criminal and legal doctrine on the options of the subjective attitude of the offender to the objective qualifying features of encroachment sufficient to prosecute him, have been revealed. The author has found out the following tendencies in the field of legislative regulation and professional theoretical interpretation of the subjective attitude of the perpetrator to the qualifying features of criminal offenses, which have the objective nature: a) selectivity and fragmentation of the research of the specified issue; b) the lack of stable judicial practice, which would serve as an authoritative guide in solving the specified problem; c) the presence of debatable points of view in regard to the same qualifying features; d) uncertainty of experts regarding the content of the subjective attitude of the perpetrator to many typical aggravating (qualifying) circumstances; e) unsatisfactory legal regulation of the issue on admissible options of the mental attitude of the perpetrator to the qualifying features; f) unsuitability for the direct application of the formulas of guilt and its forms to the solution of the specified issue.