Do negative features of corpus delicti exist?

Abstract

The article deals with the main approaches to the essence and criminal legal nature of the negative features of corpus delicti. The author finds out that representatives of the first of them use the terminological phrase “negative features of corpus delicti” in their research, indicate the absence of such features in a certain corpus delicti, and, at the same time, persistently search for their “place” within this very same corpus delicti. Representatives of the second approach try not to use this terminological phrase, and if they do, they understand them as “ordinary” features of a specific corpus delicti, the peculiarity of which is the way they are expressed using negative (denying) concepts.On the basis of a critical understanding of the specified approaches, the author concludes that from the entire set of legislative instructions, which “by tradition” are called “negative features” of corpus delicti, only a part are signs of corpus delicti. At the same time, two types of such instructions are distinguished:the first type really reflects the features of corpus delicti, which are expressed with the help of negative (denying) concepts: it goes, for example, about such features as “incapacitated parents” (feature of a special victim), “violence that is not dangerous to the life or health of the victim” (manner in corpus delicti) etc. Taking into account the arguments presented in the article, they should be called so – features of corpus delicti expressed by negative concepts; the second type of instructions reflect not the features of corpus delicti, which are expressed using negative concepts, but the local rules of criminal legal qualification provided for by the Special Part of the Criminal Code of Ukraine: “in the absence of features of state treason” (Part 6 of Article 111-1 of the Criminal Code of Ukraine), “in the absence of features of a criminal offense against property” (Part 1 of Article 222 of the Criminal Code of Ukraine), “except for the cases provided for by other articles of this Code” (Part 1 of Article 182 of the Criminal Code of Ukraine)” etc. These rules imperatively determine the “sequence” of establishing the features of a group of corpora delicti, in which one or more of such corpora delicti have priority.