Criminal Code Of Ukraine Research Articles

Qualification of child sexting, sextorsion and online grooming

Some characteristics of actus reus of Art. 3011 and of Art. 1561 of the Criminal Code of Ukraine are analyzed. The characteristics of sexting and sextorsion, the subject matter of which is child pornography, and online grooming are revealed. If the participant in the child sexting is an adult who received from the child through a means of communication its image in a sexually explicit manner, his actions must be assessed as the production of child pornography (part 3 of Art. 3011 of the Criminal Code) and its storage (part 1 or 2 of Art. 3011 of the Criminal Code depending on the absence or presence of the purpose of selling or distribution). In this case, the adult participant in the sexting uses a child who photographs or shoots himself in a sexually explicit manner as a «tool» for the production of child pornography. If the participant in the child sexting is a minor (who has reached the age of 16), the responsibility for such acts arises only if he has the purpose of selling or distribution child pornography. If an adult participant in sexting has the purpose to obtain an image of a child in a sexually explicit manner and then threatens to sell or distribute it in order to obtain new such images, then there is a sextorsion that should be qualified as the production of child pornography (part 3 of Art. 3011 of the Criminal Code), the storage of child pornography with the purpose of selling or distribution (part 2 of Art. 3011 of the Criminal Code) and forcing a minor under-18s or under-14s to participate in the creation of child pornography (part 3 or 4 of Art. 3011 of the Criminal Code). If the purpose of the sextorsion is to meet with the child online or in real life to commit any sexual or lewd acts with him or to involve the child in the production of child pornography, such sextorsion should be qualified as the production of child pornography (part 3 of Art. 3011 of the Criminal Code), the storage of child pornography with the purpose of selling or distribution (part 2 of Art. 3011 of the Criminal Code) and depending on the stage of the sextorsion: or as preparation for harassment of a child for sexual purposes, or as an attempt to commit a criminal offense, or as a completed harassment (Art. 1561 of the Criminal Code). Building a trusting relationship by adult with a child on the Internet for a future meeting with the purpose to committing any sexual or lewd acts against him or involving him in the production of child pornography constitutes online grooming and should qualify as preparation for harassment of a child for sexual purposes. Key words: child pornography, sexting, sextorsion, online grooming.

Liability of legal entities as a prerequisite for the implementation of the Medicrime Convention

It is examined in the article the provisions of current criminal law in terms of compliance with international legal obligations, which Ukraine has been taken while ratified the Convention on the counterfeiting of medical products and similar crimes involving threats to public health (the Medicrime Convention) in terms of liability of legal entities for the creation and circulation of counterfeit medical products. It was proved that in fact there is no such responsibility, and, therefore, the obligation is not fulfilled. A number of explanatory notes were also analyzed, which determined the range of criminal offenses for the commission of which measures of a criminal nature may be applied to a legal entity. It is established that no obstacles or arguments for non-inclusion in paragraph 1 of part 1 of Art. 96-3 of the Criminal Code of Ukraine there are no pharmaceutical crimes.
 An analysis of the leading international experience in the implementation of liability of legal entities for these acts, in particular, Spain, Germany and Switzerland. In addition, judgments of foreign states, which proves that pharmaceutical crimes are crimes that can be committed by transnational organized crime. Therefore, the obligation to expand the range of crimes under Part 1 of Art. 96-3 of the Criminal Code of Ukraine follows from the UN Convention against Transnational Organized Crime.
 It was emphasized that in order to effectively counter the spread of counterfeit medical products, it is necessary to expand the powers of the State Medical Service to control the quality of medical products without prior notice of inspection of business entities (Law of Ukraine" On Basic Principles of State Supervision (Control)" 2007 № 877).
 It is necessary to bring the national legislation in line with Art. 11 of the Medicrime Convention to escape from all drawbacks due to expansion range of crimes that could help to make responsible the legal entities in criminal law. For this purpose, it is mandatory to add paragraph 1 Part 1 of Art. 96-3 by reference to Articles 305 and 321-1 of the Criminal Code of Ukraine.

Subjective side of "Concealment of a crime" (Article 396 of the Criminal Code of Ukraine) and its impact on qualifications

The article considers the current problems that arise during the qualification "Concealment of a crime" (Article 397 of the Criminal Code of Ukraine), in particular on the basis of the subjective side. The problem of the correct qualification of a criminal offense depends on the correct establishment of all the features of the criminal offense, among which the greatest complexity are the features of the subjective side. To do this, it is necessary to disclose the content and characteristics of the subjective side, its mandatory features, and to determine the significance of the characteristics of the subjective side of the crime for the criminal assessment of the offense. The subjective side is a mandatory element of any criminal offense. Among its features are guilt, motive and purpose of the criminal offense.
 The analysis of judicial practice, scientific works gives the chance to develop scientific knowledge concerning the outlined question and to draw the following conclusions. The subjective side of concealment of a crime (Article 396 of the Criminal Code of Ukraine) is characterized by guilt exclusively in the form of direct intent.
 The qualification of concealment of a crime can be significantly affected by a person's legal or factual error. Motive and purpose are optional features of the composition of concealment of the crime, they do not affect the qualification of the perpetrator, but must be considered by the court in sentencing. At the same time, the selfish motive of concealment of a crime has a great social danger, but fixing it in the tort under investigation is considered inexpedient, as it may complicate the distinction between concealment of a crime committed for selfish motives and acquisition, receipt, storage or sale of criminally obtained property.
 The significance of the subjective side and its features for qualification is determined. The paper reveals the features of subjective signs of concealment of a crime on the basis of the provisions of the Criminal Code of Ukraine. Examples from judicial practice are analyzed.

Socially dangerous consequences of persistent failure to perform duties related to the care of a child or a person under guardianship or in the custody (Art. 166 of the Criminal Code of Ukraine)

The article is devoted to the study of socially dangerous consequences persistent failure to perform duties related to the care of a child or a person under guardianship or in the custody. Тhey are formulated as serious consequences іn Art. 166 of the Criminal Code of Ukraine. The article analyzes and reveals this concept, which is evaluative and needs to be established in each case. The types of consequences covered by this concept are clarified. In particular, the material consequences include physical (personal) harm, namely: impaired spiritual, social, intellectual or emotional development of the child, impaired physical or mental development of the child, severe, moderate or minor injuries that caused short-term health disorders or insignificant loss of ability to work of a child or a person with limited capacity (incapacity), their death, suicide or attempted suicide, unknown absence. Intangible consequences include violation of the right of a child and a person declared incapable or partially incapable to housing and sexual integrity. The case law on the application of Art. 166 of the Criminal Code of Ukraine (2010-2021). It has been found that the concept of «serious consequences» covers a wide range of types of socially dangerous consequences. It is established that as a result of commission of this crime damage is caused to public relations which are various on degree of significance. It is proposed to improve the responsibility for commission of the crime under Art. 166 of the Criminal Code of Ukraine, namely to clarify the types of consequences and to differentiate such responsibilities.

Problem of criminal legal qualification of domestic violence in law enforcement practice

Domestic violence is a phenomenon that can take the form of a socially dangerous act and be qualified as a crime under Art. 126-1 of the Criminal Code of Ukraine and other articles of the Criminal Code of Ukraine. It is the correctness of the criminal legal qualification of domestic violence that became the subject of our study. 
 The lack of systematic interpretation of Art. 126-1 of the Criminal Code of Ukraine leads in practice to the fact that the courts decide completely differently on the qualification of actions of a person. After all, domestic violence can be a manifestation of both an administrative offense and a criminally punishable act. That makes it impossible to further apply the restrictive measures of a criminal legal nature, enshrined in Art. 91-1 of the Criminal Code of Ukraine. Such situation has already become the basis for resolution in the order of review by higher courts and formation of a position on the most problematic aspects by the Supreme Court of Ukraine. In particular, in order to avoid the prohibited double conviction or punishment, the proceedings must be combined on a comprehensive basis and form a single whole. This means not only that the goal and the means used to achieve it must complement each other in nature and be linked in time, but also that the possible consequences of such legal response to appropriate behavior must be proportionate and predictable. for the persons to whom they relate. 
 Thus, the purpose of our study is to form a list of issues for the correct criminal legal qualification of actions under Art. 126-1 of the Criminal Code of Ukraine, for the correct separation from the administrative offense under Art. 173-2 of the Code of Administrative Offenses, as well as from other criminal offenses related to domestic violence. The task is to study the conclusions of the Supreme Court of Ukraine, to analyse the case law, to analyse the research conducted by non-governmental international organizations, as well as to analyse the positions of the doctrine of criminal and criminal procedure law on this issue.

Discrimination in sports as a gross violation of human rights in Ukraine

The urgency of the problem described in the article is the existence of an ineffective observance mechanism of athletes' and fans' rights in connection with the manifestations of discrimination in sports. Therefore, the purpose of the article is to find ways to improve Ukrainian legislation in terms of protection of human rights from any manifestations of discrimination. To achieve this goal, the system-structural method and the formal-legal method, the method of analysis, the formal-logical method were used. The Ukrainian legislation in the researched field is analyzed. The experience of other countries in combating discrimination in sports has been studied. It is proposed to create an institute of sports ombudsman in Ukraine and stressed the need not to improve the criminal legislation in terms of clarifying the provisions of Article 161 of the Criminal Code of Ukraine. The expediency of establishing administrative liability for non-compliance with anti-discrimination legislation, amending the Code of Ukraine on Administrative Offenses, which, in turn, will facilitate more prompt prosecution for human rights violations in sports. The practical value of the obtained results is that it can be taken as a basis for finding a mechanism to improve the fight against discrimination in sports.

ФІКЦІЯ В ЗАКОНОДАВЧІЙ КОНСТРУКЦІЇ ЗВІЛЬНЕННЯ ВІД КРИМІНАЛЬНОЇ ВІДПОВІДАЛЬНОСТІ У ЗВ’ЯЗКУ ІЗ ЗАКІНЧЕННЯМ СТРОКІВ ДАВНОСТІ

The essence and subject matter of fiction in the Criminal Code of Ukraine, namely fiction in the legislative structure of exemption from criminal responsibility in connection with the expiry of limitations period are analyzed in the article. The analysis of normative-legal acts, scholars’ views on the problem of fictitious norms is carried out. In particular, the author provides a description and analyzes the legislative structure of exemption from criminal responsibility in connection with the expiry of limitations period in the Criminal Codes of such foreign countries as: Poland, France, Germany. Based on the positive foreign experience, it is proposed to amend Article 49 of the Criminal Code of Ukraine with a new part 7 as follows: “The limitations period starts to be calculated from the moment of expiration. If the consequence that is a part of the act occurs later, the limitations period begins from this point”. It is mentioned that the exemption from criminal responsibility is an independent criminal and legal institution. However, its legal quintessence has the following features: since the de jure exemption does not result in the conviction of a person who has committed a criminal offense, such a person avoids the adverse criminal consequences that this person has as a result of the conviction. It is clarified that the essence of the legislative structure of exemption from criminal responsibility in connection with the expiry of limitations period has a controversial nature in the science of Ukraine’s criminal law. The view according to which the basis of existence in criminal law of institute of prescription is loss of public danger of the committed act remains actual. It is concluded that the fiction in the legislative structure of exemption from criminal responsibility in connection with the expiry of limitations period is expressed in the limitation of time limits of criminal responsibility with the law on criminal responsibility. The Criminal Code of Ukraine denies the criminal and legal significance of the committed act and its consequences outside the time limits of criminal responsibility. This lack of correspondence between the real facts and their legal consolidation is a fiction of the institution of prescription. Key words: expiry of limitations period, fiction, exemption from criminal responsibility, legislator, criminal offense.

System approach in criminal law: achievements and prospects of application

The solution of fundamental problems of criminal-law regulation should be carried out taking into account doctrinal scientific developments and the latest achievements of scientific and technological progress. In this sense, using of a system approach is expanded, which has now received significant instrumental support in the format of information technology and software. A system approach is a methodological direction of scientific knowledge of system objects by means of system engineering, which is implemented in two main areas – in the field of methodology and theory, and in the field of specific applications. The aim of the paper is a comprehensive description of using of system approach in domestic criminal law. The task is to outline the prospects of applying a system approach in domestic criminal law, taking into account the latest technologies of systems engineering. Criminal law in its essence can be understood as a system of information (knowledge) that outlines the criminal offenses’ types and criminal law measures of state reaction to them. As a systemic object, this phenomenon is characterized by several circumstances. System components of criminal law. First of all, the authors are talking about the systemic nature of a crime, according to which the system of criminal law regulation is oriented. The systems are also criminal law provisions. Their structural elements-subsystems are hypothesis, disposition and sanction The system of criminal law has its own structure. The initial elements of its structure are criminal law. This also includes atypical regulations: criminal law constructions, legal presumptions and fictions. According to the degree of generalization, legal norms and atypical normative prescriptions are united into legal institutions. The systemic structure of the studied system object is manifested in the multiplicity of relations between them. System connections of criminal law. In the system of criminal law, informational connections are realized. Functioning of criminal law system in the system environment. Through the mechanisms of rule-making, information from protected social relations is introduced into it from the outside, and through the mechanisms of law enforcement, it affects its environment. According to the system approach, a model of the crime system and the system of the Criminal Code of Ukraine is proposed, developed on the basis of IDEF0 notation

Criminal liability for illegal transplantation: past, present, future

Transplantation of human anatomical materials is an important method of treatment aimed at restoring human health, so improving the criminal law regulation of combating illegal transplantation is certainly important. This article provides a comprehensive scientific and practical analysis of the formation, development and reform of legislation that provides transplantation of anatomical materials to humans. To do this, the author systematically studied the regulatory legislation in the field of transplantation and the changes that have taken place in it, identified all the changes made to Art. 143 of the Criminal Code of Ukraine during its validity, the impact of these changes on the practice of application of Art. 143 of the Criminal Code of Ukraine. The study of the legal support of transplantation was conducted through three main stages of transformation of legislation during the independence of Ukraine. This allowed us to draw the following conclusions: 1) the subject of the crimes under Art. 143 today is human anatomical materials. This means that, in addition to human organs or tissues, it covers anatomical formations, human cells and human fetal materials; 2) the systematic change of regulatory legislation in the field of transplantation complicates the establishment of the current procedure and conditions of transplantation of human anatomical materials, and, as a consequence, complicates the detection of signs of illegal transplantation; 3) the current corpus delicti provided in Part 1 of Art. 143 of the Criminal Code, is material, which requires the establishment, in addition to the act, socially dangerous consequences (significant harm to the victim) and the causal link between the act and the consequence; 4) the subjective side of the crime provided by part 1 of Art. 143 of the Criminal Code, from the moment of adoption of the Criminal Code of Ukraine until December 28, 2019, both intentional and negligent violation of the statutory procedure for transplantation of human anatomical materials was criminally punished, and from December 29, 2019, the act can only be intentional and the attitude to consequences only negligent; 5) since the adoption of the Criminal Code of Ukraine and until now, the legislator has twice increased the penalties for crimes under Art. 143 of the Criminal Code. In the final case, the penalty was increased for all sanctions under Art. 143 of the Criminal Code without exception.

Restrictive measures of a criminal law nature in the system of legal regulation of prevention and to combat domestic violence

The article is devoted to the study of the system of state measures applied to persons, who are suspected, accused of committing or having committed domestic violence, as well as determining the place of restrictive measures of a criminal law nature in the proposed system. For this purpose, it is necessary to conduct an analysis of the legislative regulation of state measures applicable to persons suspected of committing or having committed domestic violence at all levels of №rmative legal regulation; to delimitate the terms “restrictive measure”, “precautionary measure”, “restrictive prescription” and “temporary prohibition injunction” and to analyse the expediency of the new term “security measures” proposed by the draft of the new Criminal Code of Ukraine. The result of the conducted study is an analysis of the existing state measures to combat domestic violence in order to form a system of special measures to combat domestic violence, as well as examination of the issue concerning the place of restrictive measures of a criminal law nature applicable to persons having committed domestic violence. So, today, the system of special measures to combat domestic violence consists of types of measures to temporarily restrict the rights and obligations of the perpetrator who committed domestic violence, as well as to a person suspected, accused or committed a criminal offense related to domestic violence. The types of such measures are taking the offender into preventive registration and carrying out preventive work with him; referral of the offender to the offender program; a temporary injunction; a restrictive prescription of a civil nature a restrictive measure of a criminal procedure nature applicable to persons suspected or accused of committing domestic violence; and a restrictive measure of a criminal nature nature applicable to persons who have committed domestic violence having different preconditions, grounds , subjects and the term of appointment, but have the sole intention of protecting persons suffering from domestic violence.

Development of legislation aimed to combat raidering

The author analyzes the development of legislation aimed to combat raiding, in particular, that establishes crimi-nal liability for crimes covered by the concept of “raiding”, namely: Art. 205-1, 206, 206-2 of the Criminal Code of Ukraine. Investigated normative use of the term “raiding” in the legislation of Ukraine. Analyzed signs of crimes, which consist in illegal seizure of business entities. The history of the phenomenon of raiding in Ukraine is stud-ied and the stages of its spread are singled out. The comparison of the Criminal Code of Ukraine of 1960 and the Criminal Code of Ukraine of 2001 in the context of “anti-raider” articles is made. Each legislative change of Art. 205-1, 206, 206-2 of the Criminal Code of Ukraine. Additionally, the innovations of the laws aimed at counteracting raiding were analyzed, namely such laws as: “On Amendments to the Law of Ukraine “On State Registration of Legal Entities and Individual Entrepreneurs” to prevent amendments to the Unified State Register of Legal Entities and Individual Entrepreneurs according to forged documents” № 815-VIII of 24.11.2015, “On Amendments to the Law of Ukraine “On State Registration of Legal Entities and Individual Entrepreneurs” and some other legislative acts of Ukraine on decentralization of powers for state registration of legal entities, individuals - entrepreneurs and public formations” № 835-VIII from 26.11.2015, “On limited and additional liability companies” from 06.02.2018 № 2275-VIII, “On amendments to some legislative acts of Ukraine to combat raiding” from 05.12.2019 № 340-IX.

Comparative Analysis of the Criminal and Legal Protection of Morality in the Legislations of Ukraine and Moldova

The article under studies relies on the understanding that the future of any state, society and mankind on the whole largely depends on the moral virtues of each individual. However, today's moral, spiritual and cultural basics are seriously challenged, annihilated and neglected.
 Resting on a comparative-legal analysis of the current criminal legislation of Ukraine and the Republic of Moldova, the article deals with the peculiarities of the criminal and legal protection of morality, identifies in the above legislations certain common and distinctive features in the context of existence and construction of legal norms, investigates their structural elements and, eventually, determines types of punishment.
 It has been substantiated that Ukrainian criminal legislation is rather progressive in terms of the criminal and legal protection of morality. It might be explained by the fact that respective criminal and legal prohibitions not only have been reflected in a special section of the Criminal Code of Ukraine, but are also described there in detail. In addition, these prohibitions are marked with partial, but at the same time significant and expedient changes and supplements that completely comply with the present-day challenges (for instance, in terms of liability for cruel treatment of animals, vandalizing a grave or other burial place or the body of the deceased, etc.). Particular emphasis has been laid on the fact that due to the recent changes in the Criminal Code, which came into force in March, 2021, especially striking are the elements of such crimes as access to child pornography, its acquisition, storage, import, transportation or other movement, production, sale and dissemination (Art. 301-1), and carrying out of entertaining action of sexual character with participation of the minor (Art. 301-2).
 On the other hand, the criminal legislation of Moldova does not contain a separate structural part, which would systematize all socially hazardous actions regarding morality. Instead, certain articles on the protection of social morality are enshrined in different chapters of a Special Part of the Criminal Code of the Republic of Moldova. It is also important that the article under discussion draws a conclusion that the protection of social morality in the criminal legislation of Moldova comprises both traditional for most states norms (for example, liability for pimping, illegal acts on pornographic objects, vandalizing a grave, etc.) and not quite common ones (liability for incest, obtaining child prostitution services; cruel treatment of animals by a person responsible for the care, protection and welfare of animals, for training or veterinary care; vandalism; debauched actions in the form of exhibitionism, compelling to participate in making pornographic performances, etc.).

Crime of domestic violence (Article 126-1 of the Criminal Code of Ukraine): analysis of judicial practice

The scientific article is devoted to the analysis of judicial practice of the crime of domestic violence. The urgency of the topic is due to the need to develop Ukraine as a modern democratic state governed by the rule of law and further expand legal regulation in the field of prevention and combating domestic violence. Methodology. Methodological tools are selected in accordance with the purpose, objectives, object and subject of research. The methodological basis of the study are philosophical, general and special-scientific methods of cognition. The theoretical basis of the study were the prescriptions of regulations of current legislation of Ukraine and scientific works of domestic scientists on domestic violence. Taking into account the specifics and complexity of the chosen subject of research, interdisciplinary and complex approaches were used, which allowed to work out and interpret the results of empirical research. The generally accepted principles of scientific knowledge are applied, in particular, the principle of determinism, the principle of conformity, the principle of subsidiarity.
 The methods, techniques, principles used made it possible to identify, distinguish, distinguish and prolong the relationship of part and whole, single and total selected sample, emphasizing the dialectical unity and difference between the properties, relationships and aspects of the subject.
 The empirical basis of the study is the information obtained from the analysis of case law, namely: acts of criminal law (court verdicts), the period of adoption from 01.01.2020 to 01.01.2021, the decisions of which are placed in the Unified State Register of Judgments of Ukraine. In the course of the research the concept, legal consequences and composition of the crime of Article 126-1 were revealed and characterized. Domestic violence of the Criminal Code of Ukraine. The variability of structural units of criminal-legal interaction of the offender-victim with the indication of the family-legal status of the participants in the crime of domestic violence is emphasized. Attention is paid to fragments of legal reality and to certain orientation units of lawful and wrongful behavior. The influence of genetic and environmental factors on the formation of the behavior of participants in deep conflict domestic violence is noted.
 Attention is paid to the commission of crimes based on personal hostility. Also, the interpretation of the sample data revealed that a significant number of crimes of domestic violence were committed by the perpetrator (suspect / accused) in a state of intoxication or under the influence of psychoactive substances (alcoholic beverages), which in turn indicates the problem of interdependent, addictive behaviors, psychologic emotional imbalance. Thus, the modular interrelationships of the participants in the deep conflict in the field of domestic violence, taking the form of a criminal act, are determined by a set of interconnected, interdependent factors of biological and social nature. This gives grounds to argue about the need to improve measures to prevent and correct deviant behavior in society.
 Based on the results of the study, conclusions and recommendations were formed regarding the improvement of social and legal influence in the field of prevention and counteraction to domestic violence. Among other things, it is expedient to modernize social policy, form, develop the institution of "family", "general family", as well as the development and implementation of targeted comprehensive programs for the prevention of domestic violence, legal education, structured according to psychological age, hierarchy of activities, neoplasms of consciousness and personality. The general conditions of such an approach are the successful acquisition of knowledge and skills of self-regulation of behavior, as well as the formation of motivational and demanding sphere of personality of the right direction.
 The obtained results can be used: in research work — for further research of legal, psychological specifics and structure of domestic violence; in law-making — to improve the legal regulation of the system of prevention, counteraction to domestic violence; — law enforcement activities — in the implementation of state policy in the field of prevention, combating domestic violence; in the educational process — in the preparation of lectures, seminars, practical classes; in legal and educational activities — to improve the modular guidelines of socio-legal behavior of the individual, aimed at raising the level of legal awareness, legal culture; as well as for all other professionals who deal with domestic violence.

Forensic examination of a dog's corpse with signs of violent death: A case review

Increasingly, in the media, social networks, we encounter reports of cruelty to animals by companions, which led to their injury or death. Animal cruelty in Ukraine and all over the world, unfortunately, still remains an urgent problem. In this regard, forensic investigators ask veterinary experts questions that are aimed at assessing the severity of the damage, the mechanism of their formation and establishing the cause of death of the animal. According to the pre-trial investigation and the forensic veterinary examination results of the corpse of a dog, which was conducted at the request of investigative authorities in the inquiry of a criminal offense on the grounds of a crime under Part 1. Article. 299 of the Criminal code of Ukraine, the open craniocerebral trauma of a head of a dog with multiple fractures of the facial bones is established. The left eyeball is missing. There is a rupture of the muscular base and the mucous membrane of the tip of the tongue. Open fracture of the mandible with the discrepancy between the symphysis of the right and left arches. During the necropsy, it was noted that the subcutaneous tissue contains a small amount of fat, skeletal muscle is moderately developed, the stomach is empty and the dog's corpse is exhausted. Which indicates that the dog has spent a loong time without proper care of the pet owner. A torn-scalped wound with signs of purulent inflammation and the presence of fly larvae was noted in the head area, which may indicate that the process is 3–7 days old. Extensive left hemorrhage in the meninges of the frontal area and generalized cerebral edema caused by momentary action of a mechanical factor, a blow in the lateral direction were observed during the study of the brain. Traumatic injuries found on the dog's corpse have a lifetime character and are in a direct causal relationship between the injuries and the cause of death of the animal.

Preparation for a Criminal Offence: Features of Criminal Liability under the Criminal Code of Ukraine

Preparation for a Criminal Offence: Features of Criminal Liability under the Criminal Code of Ukraine

The definition of criminal offense, it`s concept, signs and significance (criminal law aspect)

The article reveals the concept of a criminal offense as one of the main definitions in criminal law. Investigated its mandatory features, which are directly of great importance in the criminal legal assessment. It shows the lack of definition of the concept of a criminal offense in the draft of the Criminal Code of Ukraine dated by the 30 of May 2021, which consists lacking of a sign of public danger, and thereby ignores the continuity of the development of Ukrainian legislation on criminal liability and the achievements of the science of domestic criminal law. It covers the issues of differentiation of views on the concept of a criminal offense of the Government of Ukraine and the European Court of Human Rights, an example of one of the cases of this Court («Gurepka v. Ukraine» from the 6 of September 2005) is given and, because of reasoned conclusions, changes are proposed to improve the criminal legislation of Ukraine (which were also not considered in the preparation of the draft of the Criminal Code of Ukraine dated by the 30 of May 2021). The authors consider the importance of a criminal offense in the criminal and closely related criminal procedural legislation of Ukraine. Given the fact that the concept of criminal offense is used in international practice, in particular in accordance with the practice of the European Court of Human Rights, we consider it appropriate to establish the following deadlines for liability: 1) in Art. 63 of the Criminal Code of Ukraine «Imprisonment for a definite term» - a minimum term of three hours (not one year, as in the current Criminal Code of Ukraine, not three months, as proposed in the draft Criminal Code of Ukraine of May 31, 2021); 2) in Art. 32 of the Code of Ukraine on Administrative Offenses «Administrative arrest» - a maximum period of 3 hours of administrative arrest (and not up to 15 days, as now), as well as 3) the authors supported the view of amending Part 1 of Art. 60 of the Criminal Code of Ukraine «Arrest», stating this part as follows: «Punishment in the form of arrest is set for a period of one day to six months», or set an even shorter minimum term of arrest. The criminal-legal significance of a criminal offense is that it depends on: 1) criminal liability of a person (Articles 2, 11, Part 2 of Article 14, Article 17, Article 31 of the Criminal Code of Ukraine), 2) separation of a criminal offense from a minor act (Part 1 of Article 11 of Part 2 of Article 11 of the Criminal Code of Ukraine); 3) the type of sentence imposed from 12 possible for adults (Articles 51-59 of the Criminal Code of Ukraine) or 6 possible types of punishment for minors (Articles 98-102 of the Criminal Code of Ukraine) and the period during which the person will be punished; 4) a criminal record, which is provided only for the commission of a criminal offense and which is valid for a period specified by law (Articles 88-91, 108 of the Criminal Code of Ukraine); 5) the possibility of exemption from criminal liability (Articles 45-49, Article 106, Part 2 of Article 111, Part 2 of Article 114, Part 4 of Article 212, Part 5 of Article 258, Part 6 Article 260, Part 3, Article 263, Part 4, Article 289, Part 4, Article 401 of the Criminal Code of Ukraine etc.); 6) the possibility of release from punishment (Articles 75-87, 104-105 of the Criminal Code of Ukraine); 7) the right of the court to apply coercive measures of a medical nature (paragraphs 2 and 3 of Article 93, Articles 94-95 of the Criminal Code of Ukraine). Keywords: significance of a criminal offense, criminal legislation of Ukraine, decisions of the European Court of Human Rights.

Запобігання дефектів надання медичної допомоги в акушерстві та безпека пацієнтів

The question of determining the improper performance of their professional duties by health professionals due to negligent and dishonest relation to professional duties, which leads to serious consequences, including fatal ones, in patients remains open. To address these issues, criminal proceedings are opened, which are entered into the Unified Register of pre-trial investigations on the grounds of a criminal offense under Part 1 of Article 140 of the Criminal Code of Ukraine. The purpose of the study was to analyze the situation with the quality of medical care by obstetricians and gynecologists and the analysis and synthesis of defects identified during forensic examinations. Materials and methods. During the study, 30 cases of medical care by obstetricians and gynecologists were studied and analyzed, and an analysis of the identified defects in medical care was performed. Results and discussion. One of the medical specialties in which there are cases of improper performance of professional duties is obstetrics and gynecology. Special knowledge is required to clarify the circumstances relevant to the criminal proceedings, to establish the presence / absence of defects in the provision of medical care, as well as to establish a causal link between the identified defects in the provision of medical care and the occurrence of serious consequences for the patient, so there is a need for forensic examinations. As a result of our analysis, we found that obstetricians and gynecologists in most cases provide quality medical care, in accordance with generally accepted recommendations. However, during forensic examinations, defects in the provision of medical care were still observed both in the organization of medical care and defects in diagnosis, treatment and prevention. These can be both defects in the form of inaction of the doctor, and defects in the form of performance of action which is shown, but executed incorrectly by the doctor at rendering of medical care. In 22% of medical care for pregnant women we found the presence of defects (in the form of inaction of the doctor), which led to serious consequences. Сonclusion. However, it should be noted that these cases are unsystematic and rather an exception to the general practice. In the future, to prevent the occurrence of defects in medical care, it is necessary to timely identify defects and analyze them, conduct medical consultations, clinical conferences, continuous professional training of doctors, which will significantly improve the provision of medical care in obstetrics

IN SEARCH OF THE OPTIMAL MODEL OF CRIMINAL ANLEGAL COUNTERACTION TO ILLEGAL GAMING BUSINESS IN UKRAINE

The article discusses the problems of improving criminal liability for illegal activities in the organization or conduct of gambling, lotteries. The doctrinal positions on this issue, as well as the corresponding foreign experience, are analyzed. It is concluded that: 1) The Criminal Code of Ukraine should be supplemented by a general rule that will provide for criminal liability for all the most socially dangerous manifestations of violations of the established procedure for engaging in economic activities. Theoretically, such a projected prohibition could cover, among other things, unlicensed or other illegal activities related to the organization and conduct of gambling or lotteries, which, accordingly, would eliminate the need for the existence of a corresponding special rule; 2) however, the question of the inexpediency of the existence of a special criminal law norm dedicated to gambling and lotteries can be put on the agenda only when, based on the results of the corresponding painstaking expert developments, the following is formed: – firstly, a well-grounded and, which is no less important, a more or less stable circle of sublicensed types of economic activity, violation of the order of occupation of which should result in criminal liability; – secondly, an improved version of the corresponding general rule, the instructions of which should be correlated with the provisions of the regulatory legislation and within which there will be no room for those controversial aspects that were characteristic of the previously existing Articles 202 and 203 of the Criminal Code of Ukraine; 3) therefore, today the optimal way of criminal-legal counteraction to illegal activities in the organization or conduct of gambling or lotteries is the presence of an appropriate special norm (Article 203–2 of the Criminal Code of Ukraine).

THE TOPICAL ISSUES OF LEGISLATIVE REGULATION OF CRIMINAL OFFENSES AGAINST SEXUAL FREEDOM AND PERSONAL INVIOLABILITY

The article is devoted to the study of topical issues of legislative regulation of criminal offenses against sexual freedom and sexual integrity of the person, provided for Articles 152–1561 of the Criminal Code of Ukraine. In the process of research the author identified a number of shortcomings and gaps in their legislative regulation, namely: 1) contradictions in terms of «the child» (the Criminal Code does not specify which age group is included in this concept), «the minor» (a person aged 14 to 18 under Article 32 of the Civil Code of Ukraine) and «the person under 16 years of age». These contradictions arise between the content of the dispositions and the titles of Articles 156 «Corruption of minors» and 1561 «Solicitation of children for sexual purposes» of the Criminal Code of Ukraine; 2) it lack of legislative concretization of the concept of «indecent assault» in Art. 156 «Corruption of minors»; 3) dualism and competition of legal norms in the application of Part 4 of Art. 152 «Rape» and Art. 155 «Committing acts of a sexual nature with a person under the age of sixteen», associated with the presence in both articles of the possibility of «voluntary consent» of «the person under 14 years of age» to commit sexual intercourse; 4) clarification of the possibility of practical application of Art. 1561 «Sexual harassment of a child». The author proposed the following changes and additions to the provisions of the Criminal Code of Ukraine to eliminate these shortcomings: 1) to formulate the name of Art. 156 as «Corruption of a person under the age of sixteen» and Art. 1561 as «Solicitation for sexual purposes of a person under the age of sixteen»; 2) to define the concept of «lecherous acts» in Art. 156 «Corruption of minors», for example, as «acts related to the physical and/or intellectual depravity of the victim in the sexual sphere», including those related to «exposure or touching the genitals, incitement to natural and unnatural sexual intercourse, conducting cynical conversations on sexual topics»; 3) to exclude from the text of the disposition part 4 of Art. 152 the concept of «voluntary consent» and supplement Art. 155 by the part 3, that provides the next: «The acts provided in part one of this article, committed against a person under the age of fourteen, – will be punishable by imprisonment for a term of ten to fifteen years». It is the presence of legible, consistent and justified criminal law norms in criminal offenses against sexual freedom and integrity of the person will ensure reliable legal protection of moral values of the child and society in Ukraine and proper implementation of criminal law policy of the Ukrainian state.

Smuggling or violation of customs rules: actual questions of application of administrative and criminal liability

The article deals with the peculiarities of the application of legal liability for commercial contraband in accordance with the current legislation of Ukraine. In particular, the authors of the article investigate the feasibility of criminalization of the smuggling of a wide range of goods, and not only withdrawn from the circulation of things and forests, as recorded in the Criminal Code of Ukraine at this moment. In addition to a thorough analysis of the current legislation of Ukraine, the authors carried out a comparative analysis of Ukrainian legislation with the legislation of foreign countries, which helped to objectively assess the state of the studied issues in Ukraine. The methodology of the study includes general scientific methods, among which the methods of analysis and synthesis should be noted, as well as special-legal methods, among which it is necessary to distinguish system-functional, and comparative methods. As a result of the study, the authors concluded that the criminalization of commercial smuggling (in connection with additional corruption risks and an increase in law enforcement agencies) is inappropriate. Thus, it is proposed to leave the current legislation of Ukraine in the investigational sphere in the current state and do not make any changes to it.