Herald of the Association of Criminal Law of Ukraine最新文献

{"title":"Novelization of the provisions of the Criminal Code on circumstances that exclude a criminal offense under martial law","authors":"Yurii Anatoliiovych Ponomarenko","doi":"10.21564/2311-9640.2022.17.256785","DOIUrl":"https://doi.org/10.21564/2311-9640.2022.17.256785","url":null,"abstract":"The article is devoted to the analysis of lawful behavior of civilians, who during and in order to protect Ukraine cause harm to the aggressor state. Relevant amendments to the Criminal Code of Ukraine (Articles 43-1 and 22 of the Final and Transitional Provisions), which were introduced during the large-scale war with Russia, have been studied.\u0000It has been established that both of these legal norms provide for a subjective right, but not a legal obligation, of an individual (not a combatant) to harm the lives of soldiers and government officials of the aggressor state, property interests of the aggressor state, etc. The basis for a person to exercise this subjective right has been determined. The signs that the lawful behavior of a person defending Ukraine from foreign aggression should correspond to are established. In particular, it is established that such conduct must be directed exclusively against the interests of the aggressor state and may not harm anyone else's interests. The lawful infliction of harm is possible at any time from the imposition of martial law to its termination. The purpose of the lawful establishment of the school is solely to protect Ukraine from foreign aggression.\u0000The limits of lawful infliction of harm to the aggressor are separately analyzed and it is concluded that the current criminal legislation of Ukraine allows the possibility of inflicting any kind and amount of harm to the aggressor. On this basis, it was concluded that it is impossible to exceed the limits of lawful harm to the aggressor, and hence – the impossibility of criminal liability for exceeding such limits.\u0000A number of recommendations for courts and pre-trial investigation bodies on the practical application of Art. 43-1 and paragraph 22 of the Final and Transitional Provisions of the Criminal Code. Separately formulated and substantiated proposals for amendments to the Criminal Code of Ukraine aimed at improving the analyzed norms.","PeriodicalId":387320,"journal":{"name":"Herald of the Association of Criminal Law of Ukraine","volume":"134 6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124253636","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Actual criminal law problems of war and peace (view from military Kharkiv)","authors":"Vasyl Mykolaiovych Kyrychko","doi":"10.21564/2311-9640.2022.17.258358","DOIUrl":"https://doi.org/10.21564/2311-9640.2022.17.258358","url":null,"abstract":"The article examines actual criminal law problems of war and peace on the basis of the Criminal Code of Ukraine and related international law and taking into account the immediate sense of the features of modern war, which is still ongoing in Ukraine. \u0000Emphasis is placed on the fact that the concept of war needs to be defined in international and national criminal law as reflecting the large-scale bilateral use of armed forces by states or the state and private armed groups. War is the most dangerous manifestation of armed confrontation, which always has its own special character. The choice of means of response to the war should be made taking into account this nature, because it depends on the correct choice of method of reconciliation of the warring parties. The importance of this method of response is increasing in modern warfare, which is conducted with the use of non-nuclear weapons of mass destruction and manifests itself in the form of total destruction of settlements. Armed conflicts are less dangerous manifestations of armed confrontation, but they can be a manifestation of external manipulative influence on the state and then transform into war. Private armed groups can take part in the war or act as an enemy. A systematic solution to the various options for responding to war and armed conflict in the world is proposed to be implemented through the development of a Code of War and Peace. \u0000The article analyzes the provisions of the Criminal Code of Ukraine and international law relating to war. Some of them require terminological coordination. The category of \"military necessity\" is important for determining the content of such provisions, as well as for the correct choice of means of response to war. \u0000Proposals have been developed to improve the criminal legislation of Ukraine, which consists in establishing criminal liability for the following acts: 1) non-state armed aggression against Ukraine; 2) development and implementation of a plan for an armed conflict of a non-international nature in Ukraine or provocation of such a conflict, or public appeals to take such actions; 3) intentional provocation of the continuation of war or other military conflict or their escalation; and other proposals.","PeriodicalId":387320,"journal":{"name":"Herald of the Association of Criminal Law of Ukraine","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122490940","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Principles of criminal law and their realization in war conditions","authors":"Liliia Yuriivna Timofeyeva","doi":"10.21564/2311-9640.2022.17.257510","DOIUrl":"https://doi.org/10.21564/2311-9640.2022.17.257510","url":null,"abstract":"The issue of realization of the principles of criminal law in the conditions of war is considered.\u0000The basic idea, essence and value of criminal law is to protect fundamental rights and establish a just punishment for their violation. Fair punishment must comply with the principles of criminal law. The meaning of criminal law is expressed through its principles. Among them are the principles of humanism, legality, proportionality, individualization and differentiation of criminal responsibility.\u0000It is established that the main idea of ​​the existence of the principles of criminal law in their comprehensive and balanced implementation of the subjects of criminal law. This requirement applies to the level of lawmaking and law enforcement, both in peacetime and in wartime.\u0000The problem facing Ukraine does not concern a single country, but all of humanity. After the aggressive military actions against Ukraine, there is a threat to the security of other countries of the world if an effective counteraction mechanism is not developed. It has been established that any armed invasion of the territory of another state in the 21st century is an encroachment not only on territorial integrity. This is an encroachment on European values. These values ​​have been built for centuries in response to the experience of war.\u0000The existence of law and order is a value. When a law is codified, structured, clear and concise, a person can compare his behavior with that law. If a person chooses to commit a crime, he does so taking into account the awareness of the illegality of such an act and the existence of appropriate punishment or criminal measure for such an act. Therefore, the government in this case has all the moral and legal grounds to prosecute such a person.\u0000The need to adhere to human rights standards in prosecuting those who have committed and been involved in crimes against humanity has been established. The civilized world must respond to and ensure security by civilized methods.","PeriodicalId":387320,"journal":{"name":"Herald of the Association of Criminal Law of Ukraine","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115267821","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Deprivation of the right to occupy certain positions or engage in certain activities as a type of punishment","authors":"V. I. Tiutiuhin","doi":"10.21564/2311-9640.2022.17.257857","DOIUrl":"https://doi.org/10.21564/2311-9640.2022.17.257857","url":null,"abstract":"The author analyzes the concept and essence of this type of punishment, the ground, procedure, thresholds and features of its application as the main and as an additional punishment, considers the types of discharges of serving it and the conditions of cancellation of conviction when sentenced to this type of punishment.","PeriodicalId":387320,"journal":{"name":"Herald of the Association of Criminal Law of Ukraine","volume":"105 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130366469","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Criminal responsibility for introductory use of humanitarian aid or one type of fraud","authors":"Olha Kryshevych","doi":"10.21564/2311-9640.2022.17.258361","DOIUrl":"https://doi.org/10.21564/2311-9640.2022.17.258361","url":null,"abstract":"In connection with the imposition of martial law, a number of laws were passed that increased criminal liability for a number of crimes, one of them in the misuse of humanitarian aid allocated to the needs of citizens who are in combat zones or who were forced to leave their homes. permanent residence. The subject of this criminal offense is humanitarian aid, charitable donations and gratuitous aid, the definition of which is given in the Laws of Ukraine \"On Humanitarian Aid\" and \"On Charitable Activities and Charitable Organizations\" of 05.07.2012. The provisions of the Law of Ukraine \"On Humanitarian Aid\" show that humanitarian aid is targeted targeted free aid, which is provided in cash or in kind, in the form of works or services. It should be emphasized that the sale of goods (items) of humanitarian aid; use of charitable donations, free aid for profit; concluding other transactions for the disposal of such property for profit, ie the amount by which the income exceeds the associated costs, as well as the purpose of profit can be proved by proving the actual profit or encroachment. The misappropriation, sale or exchange of other goods for personal gain is considered inappropriate. The key feature is free and useless assistance only to those who need it, or for clearly defined charitable purposes.","PeriodicalId":387320,"journal":{"name":"Herald of the Association of Criminal Law of Ukraine","volume":"11 4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128528079","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Prohibition to approach a certain distance and / or to certain persons, to be in a certain place as a measure of a criminal nature (on the example of the Penal Code of the Republic of Poland)","authors":"O. Cheban","doi":"10.21564/2311-9640.2021.16.244441","DOIUrl":"https://doi.org/10.21564/2311-9640.2021.16.244441","url":null,"abstract":"The article analyzes the provisions of the Polish Penal Code in terms of establishing a ban on being in certain environments or places, contact with certain people, approaching certain persons or leaving a special place of residence without the consent of the court, as a kind of criminal measure. Sais about  prohibitions to hold a specific position, engage in a certain profession or carry out certain types of economic activity. In the Polish Penal Code, the analyzed prohibitions apply to the perpetrator in the case of an intentional crime combined with violence, and are binding from the entry into force of the court decision in the criminal case. \u0000It is known that in Ukraine there are special measures to combat domestic violence in the form of an urgent injunction against the offender and a restrictive injunction against the offender. In its legal positions, the Supreme Court revealed the essence (legal nature) of the restrictive order as a temporary measure of restraint, which is not a measure of punishment for a person. The Supreme Court also justified the legitimacy of the restraining order in the form of a temporary prohibition on the offender to stay and approach real estate, even if he is its co-owner, because he committed domestic violence against relatives. \u0000Measures in the restrictive order in relation to the offender are taken to decide on the qualification of his actions and the decision on him in criminal proceedings. However, the danger of continuing or re-committing domestic violence, the occurrence of serious consequences for the victim remains after the case in court. Therefore, prohibitions to approach the victim at a certain distance, to be in a place of residence should not lose their force and relevance, and in turn, begin to play a preventive role as a measure of criminal law. \u0000The author proved the importance of expanding the list of «other measures of a criminal nature» by including a ban on approaching a certain distance and / or to certain persons, a ban on being in a certain place in Section XIV of the General Part of the Criminal Code of Ukraine.","PeriodicalId":387320,"journal":{"name":"Herald of the Association of Criminal Law of Ukraine","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127312572","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"LEGAL VIEW AT A DIGITAL HUMAN BEING","authors":"O. Radutniy","doi":"10.21564/2311-9640.2021.16.243743","DOIUrl":"https://doi.org/10.21564/2311-9640.2021.16.243743","url":null,"abstract":"In continuation of previous research, the article offers a legal view at certain features of the digital human being and the formulation de lege ferenda of the special characteristics of a person of the offense. One of the problems is the question about delusion or weakness of will for digital human being, the decision was made by artificial intelligence, which may call into question the fact that there is a factual basis for legal liability. Regarding the digital person, the possibility of escalation of improved intelligence in all spheres of economic, political, corporate, information and military confrontation is argued. It has been proven that artificial intelligence can eliminate the need to think by human and digital human being, and then eliminate the ability to do it.","PeriodicalId":387320,"journal":{"name":"Herald of the Association of Criminal Law of Ukraine","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116594903","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Public calls for criminal offenses in post-Soviet countries (comparative analysis)","authors":"M. Rubashchenko","doi":"10.21564/2311-9640.2021.16.244454","DOIUrl":"https://doi.org/10.21564/2311-9640.2021.16.244454","url":null,"abstract":"The article provides a comparative analysis of the criminal legislation of post-Soviet countries in terms of criminalization of public calls to commit criminal offenses. The criminal codes of the following countries have been studied: Azerbaijan, Belarus, Armenia, Georgia, Estonia, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Moldova, the Russian Federation, Tajikistan, Turkmenistan and Uzbekistan. \u0000Common features of criminalization of public appeals in the named post-Soviet countries are established. Their distinctive features in comparison with the Ukrainian variant of regulation are defined. The list of subsequent crimes in the studied codes is not the same, but there are those whose public appeals are typical of the criminal codes of the vast majority of countries, namely – to: a) aggressive war, b) terrorist crimes, c) encroachments on the constitutional order and territorial integrity, d) mass riots. \u0000Unlike many European countries, the criminal codes of post-Soviet countries do not provide for universal types of public appeals (ie appeals to crime in general). The maximum of universalization here is calls only for crimes of a certain kind, for example, calls for terrorist crimes or crimes against the state. That is, it is mostly a case-by-case approach to the criminalization of public appeals – responsibility is established for public appeals to certain actions. \u0000In addition, the article draws attention to the following: a) the degree of punishment of public calls, that is, the penalties contained in sanctions (unqualified or «simple» public calls  are mostly punishable by up to 3 years in prison or up to 5 years), b) the differentiation of responsibilities (aggravating circumstances), c) system and placement of special types of public calls in the structure of special parts of criminal codes.","PeriodicalId":387320,"journal":{"name":"Herald of the Association of Criminal Law of Ukraine","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115891397","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The system of international legal security of road-traffic safety","authors":"Maksym Hennadiiovych Kolodyazhny","doi":"10.21564/2311-9640.2021.16.243742","DOIUrl":"https://doi.org/10.21564/2311-9640.2021.16.243742","url":null,"abstract":"The article attempts to systematize international legal acts in the field of road-traffic safety. Its current state in the world is outlined. The general methodological bases of knowledge of a problem of the international legal security in the studied field are specified. Some components of the research methodology are directly identified in the system of international legal security in this area. Based upon the features of the system of legislation that takes place in the theory of law, a number of characteristic features of the system of international legal security of transport safety. This made it possible to offer an author's definition of this concept. The system of international legal security of road-traffic safety is represented by the classification of relevant international documents adopted during the last 70 years by the UN, WHO and other international institutions. Their division is carried out on the subject of legal regulation in the general field of road-traffic safety. This made it possible to identify eight groups of international legal acts: as for the formation of a global road-traffic safety policy; the creation of uniform traffic rules; in the field of passenger transportation and passenger transport; in the field of cargo transportation; in the field of accident prevention; in the field of road-traffic safety of youth; as for the road transport infrastructure; as for the punishment of persons for criminal offenses in the field of road-traffic safety and transport operation. Proposals are made for possible supplementation of the existing conventions taking into account the current state of development of the transport industry and the introduction of new technologies.","PeriodicalId":387320,"journal":{"name":"Herald of the Association of Criminal Law of Ukraine","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116488377","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Coercing to sterilization: classification of species","authors":"A. Gornostay, V. Iemelianenko","doi":"10.21564/2311-9640.2021.16.244437","DOIUrl":"https://doi.org/10.21564/2311-9640.2021.16.244437","url":null,"abstract":"The article provides a concept of coerced sterilization and structuring of its varieties. The problems and the status of protecting the realization of reproductive rights both at national and international levels have been studied. This research is based on the analysis of the experience and legislation of such countries as Ukraine, Central America and Africa countries, USA, Germany, China, Uzbekistan, Tunisia, Singapore, India, Czech Republic, Japan, Armenia, Azerbaijan, Kyrgyzstan, Kazakhstan, Moldova and others, illustrating the coercion of persons to surgical sterilization. The UN, WHO and other international and governmental organizations' international legal acts, laws, decisions of the European Court of Human Rights (ECHR) have been studied. The authors have used statistics from international organizations, expert opinions, doctrinal ideas and views on this issue. \u0000First, it is proved that this type of sterilization occurs under the pressure of psychological, political, material circumstances. Many states either contribute financially to this phenomenon or establish discriminatory rules against those who do not wish to undergo this medical procedure. \u0000Then the classification of this type of sterilization is given: convicted persons, transgender people, HIV-infected persons and representatives of the poorest layers of the population in overpopulated regions are subject to coerced sterilization. The existence of this problem is also due to insufficient legal regulation, gaps in solving the problem of the responsibility for bribery or mental coercion to sterilization, which leads to profanity, so we can overcome obstacles to human reproductive rights only by eliminating or reducing the negative impact of these factors. \u0000On the basis of the conducted research it is offered the ways on improving the prevention and punishment of cases of forcing individuals to renounce the right to reproduce one's kind.","PeriodicalId":387320,"journal":{"name":"Herald of the Association of Criminal Law of Ukraine","volume":"76 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123622071","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}