S tages of commission of a crime.
LECTURE 6. FUNDAMENTALS OF CRIMINAL LAW OF UKRAINE
PLAN
A c oncept of criminal law of Ukraine. The Criminal code of Ukraine.
A notion, types and attributes of a crime.
C omposition of a crime.
The s tages of commission of a crime.
C riminal complicity.
The c ircumstances, which e x lude criminality of an act and criminal responsibility.
A ttributes and grounds of criminal responsibility.
A n otion, aims and types of the criminal penalties.
The c ircumstances, which mitigate criminal punishment.
The c ircumstances, which aggravate criminal punishment.
Criminal responsibility of minors.
Amnesty and legislative pardon (legislative clemency).
- A concept of criminal law of Ukraine. The Criminal code of Ukraine.
Criminal law is the field of law, the system of legal rules, which determine the notion of a crime, the types of crimes and the types of penalties for offenders.
The subject of criminal law is criminal legal relations, which arise up between the state in the person, who committed crime.
The main source of criminal law of Ukraine is the Criminal code of Ukraine, which was accepted on the 5th of April in 2001.
The code consists of General and Special part. General part, which consists of 16 chapters, contains the norms, that determine the principles of the criminal law, its task, the notion of the crime, the concept and the grounds of criminal responsibility.
The Special part of the Criminal code of Ukraine consists of 20 chapters. There are crimes against:
- the fundamentals of the national security of Ukraine;
- life and health of an individual;
- freedom, honor and dignity of an individual;
- sex freedom and sex immunity of an individual;
- voter, labor and other personal human and civil rights and freedoms;
- property rights;
- in the field of business activity;
- environment;
- public safety;
- production safety;
- traffic safety and safe transport operation;
- public order and morals;
- in the field of circulation of narcotic substances, psychotropic agents, their analogs or precursors and other crimes against public health;
- in the field of protection of state secret, immunity of state borders, draft and mobilization to the army;
- authority of government bodies, local self-government bodies and associations of citizens;
- in the field of using computers, computer systems and networks, and telecommunications networks;
- in the field of service duties;
- justice;
- established order for doing a military service (military crimes);
- peace, safety of the humankind and the international legal order.
Citizens of Ukraine and foreigners and people without citizenship are subjects of criminal responsibility for the crimes on the territory of Ukraine, except people, who use diplomatic immunity. Citizens of Ukraine, and also people without citizenship, that constantly live on the territory of Ukraine, who committed the crime out of the territory of Ukraine are subjects of criminal responsibility in accordance with the Criminal code of Ukraine, if other is not foreseen by the international agreements.
- A notion, types and attributes of a crime.
A c rime is the publicly dangerous guilty act (action or inactivity), which is foreseen by the Criminal code of Ukraine, which was committed by a subject of a crime.
According to the Criminal code of Ukrain crimes are divided into׃ not grave crimes, middle grave crimes, grave crimes and very grave crimes (especially grave crimes).
A not grave crime is a crime, for which the Criminal code of Ukraine foresees imprisonment for a term not more than 2 years or other milder punishment (lenient penalty).
A middle grave crime is a crime, for which the Criminal code of Ukraine foresees imprisonment for a term not more than 5 years.
A grave crime is a crime, for which the Criminal code of Ukraine foresees imprisonment for a term not more than 10 years.
A very grave crime (especially grave crime) is a crime, for which the Criminal code of Ukraine foresees imprisonment for a term more than 10 years or life imprisonment.
Attributes of crime are:
- public dangerous act;
- guilty act;
- illegitimate act;
- punishability.
- C omposition of a crime.
C omposition of a crime is a system of objective and subjective attributes, which are foreseen by the Criminal code of Ukraine and characterize the publicly dangerous act as the crime. There are such elements of the composition of the crime:
- an object;
- an objective side;
- a subject;
- a subjective side.
O bjects of a crime are public relations, social values, which are guarded by the criminal law.
An objective side of a crime is exteriority of an offence. It consists of illegitimateacts
(action or inactivity), dangerous effects for society and causal connection between actions and
consequences. A place, time, method, instruments, circumstances of an offence are the elements of objective side of offence.
An action is an active publicly dangerous conduct of a person, which is foreseen by the Criminal code of Ukraine.
An inactivity is a passive conduct of a person, when a person doesn’t execute actions, which she or he had to execute.
The ideas and persuasions are not crimes, because they are not acts.
A subject of a crime is a sane natural person, who committed a crime in age of criminal responsibility (16, 14 for very grave crimes).
A s ubjective side of a crime is internal psychical attitude of a subject to the illegitimate act and consequences. The subjective side of a crime is characterized by guilt (misdemeanour), aim and reasons of crime.
Guilt (misdemeanour) is psychical attitude of a person to the publicly dangerous action, which she or he committed, and publicly dangerous consequences in form of intention or carelessness.
Guilt can be in two forms: intention (direct, indirect) or carelessness (criminal self-confidence, criminal negligence).
Aim is the idea of a person about a desirable result.
Motive is a reason of an offence.
S tages of commission of a crime.
The stages of commission of a crime are the stages of preparation and realization of crime. There are 3:
1) preparation to a crime;
2) attempt on a crime;
3) complete crime.
C omplete crime is the act, which contains all attributes of the composition of the crime, which isforeseen by the Special part of the Criminal code of Ukraine.
Unfinished crime is only the preparation to the crime and attempt on the crime.
Preparation to the crime is seeking or adaptation of instruments, seeking of other offenders or plot to commit the crime, removal of obstacles, and also other intentional creation of conditions for the commission of crime.
Attempt on the crime is when a person conducts the act (action or inactivity) with direct intention, which is the crime in accordance with Special part of the Criminal code of Ukraine, but the crime was not completed because of the reasons, which did not depend of the person’s will.
Voluntary abandonment is stopping of the preparation to the crime or attempt on the crime by the person’s will, if in this case the person was aware of possibility to see the crime through.
C riminal complicity.
Criminal complicity is the intentional common participating of a few subjects of a crime in the commission of the intentional crime.
There are such forms of criminal complicity: simple and complicated.
Simple form of criminal complicity is when there is no agreement before the commission of the crime, when all joint offenders carry out identical roles.
Complicated form of criminal complicity is characterized by the previous agreement of joint offenders, when they create the criminal group or organization with distribution of the roles and the duties.
The Criminal code of Ukraine determines such joint offenders:
- an executor is a person, who committed a crime;
- an organizer is a person, who organized commission of the crime (crimes) or managed it preparation or commission;
- a n instigator is a person, who by persuasion, bribery, by threat, compulsion or by another methods predisposed other participants to commit a crime;
- an abettor is a person, who abetted other joint offenders to commit a crime by advice, removal of obstacles, and also a person, who promised to hide a criminal, instruments of a crime etc.
- The circumstances, which e x lude criminality of the act and criminal responsibility.
In accordance with the Criminal code of Ukraine there are acts, which contain the attributes of the crimes, but they are not crimes. They are: necessary defence, imaginary defence, detention of a criminal, absolute necessity, physical or psychical compulsion, implementation of the order.
Necessary defence is an act of a person with the aim to defence the rights and interests of this person or other people and also public interests and interests of a state from publicly dangerous attempt, when this person inflicts harm to an offender, when this harm is necessary in this situation to stop the attempt, if there was no exceeding of the limits of necessary defence. In this situation the person wants to stop the other person or people, who want to inflict harm.
Every person has the right on necessary defence, but without exceeding of the limits of necessary defence. The exceeding of the limits of necessary defence is the intentional infliction of heavy harm, which does not correspond to the danger of attempt or situation of defence.
Imaginary defence is a dangerous action of a person, when there was no real public danger in the conduct of people, but the person estimated the actions of the offender or offenders wrongly, and saw the presence of the attempt by mistake.
There is no criminal responsibility for the person, when the person could not realize the mistake in conduct of the offender. If the person could realize that there was no real threat, the person is the subject of criminal responsibility. If the person exceeded the limits of defence, this person is the subject of criminal responsibility too.
Actions of a person or people for the detention of a person, who committed the crime, or to hand the offender to the bodies of state power are not the crimes if there was no exceeding of the limits in their actions, which were necessary for detention of the offender.
Absolute necessity is an act of a person with the aim to defence the rights and interests of this person or other people and also public interests and interests of a state from the publicly dangerous attempt, when this person inflicts harm, which is necessary in this situation to stop the attempt, if there was no exceeding of the limits of absolute necessity. In this situation the person inflicts harm to the rights of the people, their property and also to the public interests or interests of the state.
An absolute necessity is not a crime. But exceeding of the limits of absolute necessity is a crime.
An action or inactivity of a person, that caused harm to the law-enforcement interests, is not a crime, if this action or inactivity was committed under direct influence of physical compulsion, as a result of that the person could not manage the acts.
Action or inactivity of a person that caused harm to the law-enforcement interests, if it was with the aim of implementation of the order are legitimate, and the order is legal, if it was given in the proper order and within the limits of plenary powers of the corresponding person. Such orders must not conflict with legislation and must not violate constitutional rights and freedoms of the person and citizens.
A person, who was insane in time of a crime is not responsible for the crime. The person is insane, when this person in time of crime could not realize the actions (inactivity) or manage such actions (inactivity) as a result of chronic psychical disease, temporal disorder of psychical activity, imbecility or other sickly state of psyche. In accordance of the decision of a court the forced measures of medical character can be applied to this person.
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