我国刑法第126条第1 -1款刑事责任追究的实践及提高其效率的途径

A. Politova
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引用次数: 0

摘要

关于批准《欧洲委员会关于防止对妇女的暴力行为和家庭暴力以及同这些现象作斗争的公约》(《伊斯坦布尔公约》),根据《乌克兰刑法》第126-1条进行起诉的做法问题。文章指出,打击家庭暴力的问题不仅不断引起法医科学家的注意,而且引起法官、律师和人权维护者的注意。审议了关于家庭暴力案件数目的统计数据。需要强调的是,在解释“与家庭暴力有关的刑事犯罪”的概念时,只提到《乌克兰刑法》第126-1条是不完全正确和正确的,因为《欧洲委员会关于防止对妇女的暴力行为和家庭暴力以及同这些现象作斗争的公约》和12月7日的《乌克兰法》所载的“家庭暴力”概念,2017年第2229-VIII号“关于预防和打击家庭暴力”比乌克兰刑事责任法更广泛。研究了将构成刑事犯罪的这种强制性特征解释为“有系统地实施身体、心理或经济暴力”的现有办法,并注意到司法实践中对其解释缺乏统一。值得注意的是,最高法院于2021年2月25日对第583/3295/19号案件作出的裁决,其中给出了该裁决的解释,并考虑了法院使用该裁决的问题。得出的结论是,有必要概括司法实践(截至2022年11月6日,一审判决总数为2137件),并在量刑时考虑到欧洲人权法院对这类案件的裁决。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Practice of bringing to criminal liability on Article 126-1 of Criminal Code and ways of increasing its efficiency
In connection with the ratification of the Convention of the Council of Europe on the prevention of violence against women and domestic violence and the fight against these phenomena (Istanbul Convention), the issue of the practice of prosecution under Art. 126-1 of the Criminal Code of Ukraine. The article notes that the problem of combating domestic violence constantly attracts the attention of not only forensic scientists, but also judges, lawyers, and human rights defenders. Statistical data on the number of cases of domestic violence were considered. It is emphasized that when interpreting the concept of "criminal offenses related to domestic violence", referring to them only Art. 126-1 of the Criminal Code of Ukraine is not entirely correct and correct, since the concept of "domestic violence" enshrined in the Council of Europe Convention on the prevention of violence against women and domestic violence and the fight against these phenomena and the Law of Ukraine of December 7, 2017 No. 2229-VIII "On prevention and combating domestic violence" is broader than the law of Ukraine on criminal liability. The existing approaches to the interpretation of such a mandatory feature of the composition of a criminal offense as "systematic perpetration of physical, psychological or economic violence" were studied and the lack of unity in judicial practice regarding its interpretation was noted. Attention is focused on the decision of the Supreme Court dated February 25, 2021 in case No. 583/3295/19, where its interpretation is given and problematic issues of the use of this decision by the courts are considered. A conclusion was drawn on the need to generalize judicial practice (as of November 6, 2022 – the total number of verdicts in the first instance is 2,137) and to take into account the decisions of the European Court of Human Rights in this category of cases when sentencing.
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