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

{"title":"Violence against the person - criminal offenses against human dignity","authors":"Nataliia Savinova","doi":"10.21564/2311-9640.2021.16.244431","DOIUrl":"https://doi.org/10.21564/2311-9640.2021.16.244431","url":null,"abstract":"The article proves the need to determine human dignity as a generic object of violence against a person. The article describes the state of the description of criminal offenses against human dignity under the Criminal Code of 2001 (as of 2021). According to the author, the author considers the presence of violence against a person to be an act of \"crime against dignity\" in the actions of the group \"crime against dignity\". \u0000The article proves the need to determine human dignity as a generic object of violence against a person. The article describes the state of the description of criminal offenses against human dignity under the Criminal Code of 2001 (as of 2021). According to the author, the author considers the presence of violence against a person to be an act of \"crime against dignity\" in the actions of the group \"crime against dignity\". \u0000In the content of the article, the author argues that crimes against human dignity include: all forms of domestic violence, discrimination, bullying and stalking. Under these conditions, the main unprecedented objects of these acts is the dignity of man in its psychological sense. It is this dignity that suffers in the case of abusive actions against the individual. \u0000The author, however, does not combine the understanding of mental safety and human dignity, because he considers these phenomena not identical. This approach is due to the understanding of the understanding of human dignity as a unity of components: self-assessment of their own qualities, abilities, worldview, their behavior and social significance. \u0000The text of the article provides proposals for the prospects of correct inclusion of such acts in the draft Criminal Code in the process of developing Section 4.5. \"Crimes against personal freedom and human dignity.\"","PeriodicalId":387320,"journal":{"name":"Herald of the Association of Criminal Law of Ukraine","volume":"32 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":"129776662","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":"On the issue of criminal liability for negligent joint infliction of criminal - illegal consequences","authors":"Maryna Yevhenivna Grigoryeva","doi":"10.21564/2311-9640.2021.16.244426","DOIUrl":"https://doi.org/10.21564/2311-9640.2021.16.244426","url":null,"abstract":"The article is devoted to the consideration of problematic issues related to criminal liability for negligent joint infliction of criminal consequences. Issues related to the negligent joint infliction of criminal consequences do not lose their relevance at the current stage of development of Ukrainian criminal law. The article defines the concept of negligent joint infliction of criminal consequences and provides a thorough description of its mandatory features. It is separately stated that correctly determining the basis of criminal liability of persons who jointly caused negligent damage, qualifying their actions and establishing rules for sentencing them is an important task for law enforcement and therefore it requires detailed justification and elaboration of general theoretical issues. legal consequences and the development of features of such a definition. It is proved that negligent joint infliction of criminally illegal consequences is the commission by two or more subjects of a certain criminal offense, illegal, objectively interconnected and mutually conditioned act, which is part of the objective side of a criminal offense that has a negligent form of guilt, and creates a single, common to all subjects socially dangerous result provided by criminal law. It is established that in case of negligent joint infliction of criminally - illegal consequences there is an objective interdependence and interaction of actions (actions or inactions) of such subjects who took part in achievement of those socially dangerous consequences which are provided by the criminal legislation.","PeriodicalId":387320,"journal":{"name":"Herald of the Association of Criminal Law of Ukraine","volume":"29 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":"123865172","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":"Liability of legal entities as a prerequisite for the implementation of the Medicrime Convention","authors":"T. Mykhailichenko","doi":"10.21564/2311-9640.2021.16.244390","DOIUrl":"https://doi.org/10.21564/2311-9640.2021.16.244390","url":null,"abstract":"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. \u0000An 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. \u0000It 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). \u0000It 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.","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":"115446857","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":"General rules of qualification of a criminal offense taking into account its stages","authors":"Yurii Vasylovych Grodetsky","doi":"10.21564/2311-9640.2021.16.247584","DOIUrl":"https://doi.org/10.21564/2311-9640.2021.16.247584","url":null,"abstract":"The conceptual apparatus which is a starting point for qualification of a criminal offense taking into account its stages is considered. General rules for qualifying a criminal offense, taking into account its stages, are proposed.","PeriodicalId":387320,"journal":{"name":"Herald of the Association of Criminal Law of Ukraine","volume":"28 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":"121611528","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":"Formation of the modern paradigm of countering gender-based violence in the activities of international organizations","authors":"Viktoriia Rufanova","doi":"10.21564/2311-9640.2021.16.244320","DOIUrl":"https://doi.org/10.21564/2311-9640.2021.16.244320","url":null,"abstract":"The author conducted a retrospective review of the activities of international organizations through the prism of their role in forming the legislative foundation for combating gender-based violence. It is noted that for the first time at the international level the norm of equality of all people was enshrined in Art. 2 of the Universal Declaration of Human Rights in 1948. An important step towards combating gender-based violence was the signing in 2011 of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence. The Istanbul Convention visualizes the issue of gender-based violence. It has been determined that women and girls are increasingly exposed to severe forms of violence, such as domestic violence, sexual harassment, rape, forced marriage, crimes committed in the name of so-called \"honor\", and genital mutilation, which constitutes a significant violation of human rights. for women and girls and is a major obstacle to achieving equality between women and men. \u0000The author singles out three conditional periods of formation of the modern paradigm of counteraction to gender - based violence in the activity of international organizations: 1) 1945 - 1974. The basic foundations of gender equality are laid at the level of the UN Charter and the Universal Declaration of Human Rights. Combating gender-based violence was not considered through the prism of sex discrimination. The activities of the world community were aimed primarily at combating discrimination against women in the political, socio-economic and cultural spheres of society. 2) 1975-2010.During this period, all 4 World Conferences on the Status of Women were held. In 1979, the General Assembly adopted the Convention on the Elimination of All Forms of Discrimination against Women. Articles 30 of the Convention clearly define discrimination against women and propose an agenda for action at the national level to end such discrimination. The Declaration on the Elimination of Violence against Women, adopted by the General Assembly in 1993, contains a definition of violence against women. 3) 2011 - to the present time. This period covers the process of realizing the scale of the spread of gender-based violence. A key event of this period was the adoption in 2011 of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence. Activation of the world community to intensify the fight against gender-based violence. Adoption of sustainable development goals, in which gender equality is recognized as the general idea (Goal 5) and condition of sustainable development.","PeriodicalId":387320,"journal":{"name":"Herald of the Association of Criminal Law of Ukraine","volume":"27 2 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":"116709412","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":"About system legislative viruses and social foundations of creating a new system of the Criminal Code of Ukraine","authors":"Vasyl Mykolaiovych Kyrychko","doi":"10.21564/2311-9640.2021.16.244456","DOIUrl":"https://doi.org/10.21564/2311-9640.2021.16.244456","url":null,"abstract":"The article contains critical remarks about the draft of the new system of the Criminal Code of Ukraine, which is presented for discussion by its developers and is characterized by the presence of many new provisions. It is established that this system has significant shortcomings, which are associated with the incorrect reflection in the content of criminal law norms of the essential social features of crimes. \u0000To identify such shortcomings in the system of criminal law, the concept of \"system legislative viruses\" is highlighted and the need to have protection against such viruses in the system is substantiated. The necessity to distinguish between the legislative virus, the negative consequences of which in the form of human rights violations are local in nature, and the system legislative virus, the negative consequences of which are large-scale, is substantiated. Legislative viruses that result in violation of the principle of proportionality between punishment and social characteristics of acts are analyzed. \u0000 Proposals for improving the system of the Criminal Code of Ukraine have been formulated. In particular, they concern the use of the category \"public danger\", which must perform a human rights function in the system of the Criminal Code of Ukraine. It is proposed to classify crimes using the social values ​​they encroach on and the extent of the damage that has been or may be caused. Emphasis is placed on the need to allocate at the law enforcement level the severity (danger) of the crime: 1) with particularly mitigating circumstances, 2) with mitigating circumstances, 3) without mitigating and aggravating circumstances, 4) with aggravating circumstances and 6) with especially aggravating circumstances. The court must impose penalties based on these degrees and the legal restrictions associated with them. \u0000The necessity of providing legal certainty on the social basis of criminal liability and restriction of rights for committing a crime, as well as on the legislative assessment of cases of simultaneous commission of several crimes and the rules of their qualification is substantiated. \u0000It is proposed to supplement the Criminal Code of Ukraine with Article 2-1 \"Rule of Law\", which will ensure justice in cases of errors made by the legislator and in other cases where there is a discrepancy between formal legal requirements and social characteristics of the crime.","PeriodicalId":387320,"journal":{"name":"Herald of the Association of Criminal Law of Ukraine","volume":"54 5 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":"125740564","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":"Subjective side of \"Concealment of a crime\" (Article 396 of the Criminal Code of Ukraine) and its impact on qualifications","authors":"T. M. Hud","doi":"10.21564/2311-9640.2021.16.243952","DOIUrl":"https://doi.org/10.21564/2311-9640.2021.16.243952","url":null,"abstract":"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. \u0000The 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. \u0000The 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. \u0000The 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.","PeriodicalId":387320,"journal":{"name":"Herald of the Association of Criminal Law of Ukraine","volume":"1 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":"126430963","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":"Criminological legislation of Ukraine in the field of road safety","authors":"A. Kalinina","doi":"10.21564/2311-9640.2021.16.244739","DOIUrl":"https://doi.org/10.21564/2311-9640.2021.16.244739","url":null,"abstract":"The level of road safety in Ukraine cannot be estimated as high. According to the reports of the Patrol Police, in Ukraine in recent years, on average, 3.5 thousand people die from road accidents every year. \u0000An increase in the level of road transport safety determines the development of a theoretical basis for legislation to ensure the prevention of offenses, primarily criminal ones. The criminological legislation in the field of road safety can be such a theoretical basis. \u0000The legislation, the norms of which are aimed at ensuring road safety, is significantly branchy and widely held in norms of laws of different legal force, forming, on the one hand, a large layer of legal norms, and on the other, laying the foundations for the prevention of offenses in this area. \u0000Criminological legislation in the field of road safety is a separate structural element of the criminological legislation of Ukraine. The subject of legal regulation in this case is public relations in the field of regulation of the prophylaxis and prevention of offenses (both administrative and criminal) in the provision of road traffic. \u0000According to their functional purpose, the norms of the criminological legislation of Ukraine in the field of road safety can be divided into conceptual, programmatic, regulatory and preventive ones. \u0000Conceptual norms include the norms through which the system of views and constructive ideas of the state about the road safety improving is revealed. The program norms of criminological legislation in the field of road safety include the provisions of documents aimed at the implementation of conceptual norms. Regulatory norms are the norms of legislation aimed at observing the rules, norms and standards for the operation of transport, ensuring the rules for organizing road safety and other prescriptions that determine the rules for road users. Preventive provisions include the norms of administrative and criminal legislation that determine responsibility for violations in the field of road safety and transport operation, thereby performing prophylactic and preventive functions.","PeriodicalId":387320,"journal":{"name":"Herald of the Association of Criminal Law of Ukraine","volume":"18 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":"130407926","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":"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)","authors":"V. R. Filipenko","doi":"10.21564/2311-9640.2021.16.243741","DOIUrl":"https://doi.org/10.21564/2311-9640.2021.16.243741","url":null,"abstract":"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.","PeriodicalId":387320,"journal":{"name":"Herald of the Association of Criminal Law of Ukraine","volume":"1 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":"130246095","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":"Qualification of child sexting, sextorsion and online grooming","authors":"I. A. Kopyova","doi":"10.21564/2311-9640.2021.16.244349","DOIUrl":"https://doi.org/10.21564/2311-9640.2021.16.244349","url":null,"abstract":"          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.\u0000         Key words: child pornography, sexting, sextorsion, online grooming.","PeriodicalId":387320,"journal":{"name":"Herald of the Association of Criminal Law of Ukraine","volume":"8 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":"131616324","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}