论乌克兰刑法与法律确定性原则的合规性或不合规性

Mykola Khavroniuk
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引用次数: 0

摘要

本文对刑法中法律确定性原则的内容问题进行了探讨。对这一原则的十项一般要求进行了定义和系统化:法律在其形式和内容方面的法律确定性要求(无障碍;溯及性的禁止;稳定;合法的期望;清晰;含混标准;防止滥用自由裁量权)以及在法律的适用和解释方面(解释和适用的统一性、法院判决的可得性、其约束性和可执行性)。事实证明,乌克兰《刑法》及其适用的实践并不符合法律确定性原则的所有要求。特别说明了在起草新的《乌克兰刑法典》期间所使用的确保这种遵守的方法:确定《刑法典》中法律确定性原则的概念;由最高法院全体会议核查《治罪法》修正案是否符合这一原则;规定修订乌克兰刑法的时限,并延长向人民普及刑法规定的时间;引入术语表(法典文本的词典)、自己的计算单位和不同类型损害的统一数额;确定《守则》的逻辑结构;总则的其他形式条款(一个逻辑条款-该条的一部分)和特别部分的条款(一个行为-该条的一款);10种罪行的严重程度和10种制裁(而不是现有的150多种);将改变罪行严重程度的各种情况分类,并确定罪行严重程度改变所依据的规则;确立刑法资格规则;刑事救济,如处罚、缓刑、犯罪记录、安全措施、赔偿和赔偿、没收财产和扣押财产,与对法人的刑事救济相统一;免除刑罚、特赦、赦免等理由的典型化。有人建议通过新的《乌克兰刑法典》和《行政犯罪法》,并遵守统一解释和适用法律的要求- -在最高法院保留一份《乌克兰刑法典》的对照本,其中逐条载有最高法院法官小组、分庭、联合分庭或大分庭的决定。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Regarding Compliance or Inconsistency of the Criminal Code of Ukraine with the Principle of Legal Certainty
The article examines the problem of the content of the principle of legal certainty in relation to criminal law. Ten general requirements of this principle are defined and systematized: requirements of legal certainty of the law in the context of its form and content (accessibility; prohibition of retroactivity; stability; legitimate expectations; clarity; unambiguity; prevention of abuse due to discretion) and in the context of application and interpretation of the law (unity in the interpretation and application, availability of court decisions, their binding nature and enforceability). It is proved that the Criminal Code of Ukraine and the practice of its application do not meet all the requirements of the principle of legal certainty of the law. The methods of ensuring such compliance used during the drafting of the new Criminal Code of Ukraine are demonstrated, in particular: defining the concept of the principle of legal certainty in the Code; introduction of verification by the Plenum of the Supreme Court of amendments to the Code for compliance with this principle; establishment of time limits for amendments to the Criminal Code of Ukraine and increase of time for bringing its provisions to the population; introduction of a glossary (dictionary to the text of the Code), own unit of account and uniform amounts of damage of different types; determining the logical structure of the Code; other forms of articles of its General Part (one logical provision – one part of the article) and articles of the Special Part (one act – one paragraph of the article); 10 degrees of gravity of crimes and 10 types of sanctions (instead of the existing more than 150); typification of lists of circumstances that change the severity of crimes, and determination of the rules under which the severity of crimes changes; establishing the rules of criminal law qualification; unification of criminal remedies, such as punishment, probation, criminal record, security measures, restitution and compensation, confiscation of property and seizure of property and criminal remedies against a legal entity; typification of the grounds for release from punishment, amnesty and pardon, etc. Proposals were made to ensure this compliance by adopting the new Criminal Code of Ukraine and the Code of Administrative Offenses, and compliance with the requirement of uniform interpretation and application of the law – by maintaining in the Supreme Court a control copy of the Criminal Code of Ukraine with article-by-article materials with decisions of the panel of judges, the chamber, the joint chamber or the Grand Chamber of the Supreme Court.
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