THE DEFINITION OF CRIMINAL OFFENSE, IT`S CONCEPT, SIGNS AND SIGNIFICANCE (CRIMINAL LAW ASPECT)
THE DEFINITION OF CRIMINAL OFFENSE, IT`S CONCEPT, SIGNS AND SIGNIFICANCE (CRIMINAL LAW ASPECT)
DOI 10.37566/2707-6849-2021-3(36)-6
HrygoriiKRAINYK,
Associate Professor of Criminal Lawand administrative law,
Kharkiv University,Doctor of Law
YuliiaCHUB,
Student, Kharkiv University
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.
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