Ways to improve provisions of the stages of committing a crime and voluntary refusal

Abstract

The article analyzes the draft of the new Criminal Code (hereinafter – the Draft), which was prepared by the working group on the development of criminal law within the Commission on Legal Reform, established by Presidential Decree No 584/2019 of 07.08.2019. The research is focused on the provisions of unconsummated crime and voluntary refusal in case of unconsummated crime, stipulated by section 2.4 of the Draft. It is established that these provisions do not fully comply with the principle of legal certainty, which is stipulated by Art. 1.2.3 of the Draft.The arguments provided in favor of the fact that the provisions of voluntary refusal in case of unconsummated crime (Article 2.4.4 of the Draft) and voluntary refusal in case of unconsummated crime committed in complicity (Article 2.4.5 of the Draft) should not be stipulated by section 2.4, which is called «Unconsummated Crime». The conclusion is proven that the provisions of voluntary refusal should be stipulated by a separate section of the General Part of the Criminal Code. This conclusion is made from the fact that these provisions have only their inherent legal nature, which is different from the legal nature of the provisions of the unconsummated crime. In addition, these provisions have the characteristics of an independent institution of criminal law. In this regard, the provisions of voluntary refusal may claim some separation in the system of criminal law. It is proposed to place the provisions of voluntary refusal in a separate section of the General Part of the Draft after the provisions of unconsummated crime and after the provisions of complicity in crime.Attention is drawn to the conceptual incompatibility of the concepts of «unconsummated crime» and «stages of committing a crime». The term «unconsummated crime» logically corresponds to the French legal system, while the «stage of committing a crime» – to the German. Simultaneous use of them in the Criminal Code causes contradictions in the interpretation of criminal-legislative provisions.It is proposed to eliminate this contradiction by choosing the French or German legal system by the developers of the Draft, which will then become a fundamental basis for developing conceptually agreed provisions.