MIXED GUILT IN THE CRIMINAL LAW OF UKRAINE: ITS TYPES AND IMPACT ON THE QUALIFICATION OF CRIMINAL OFFENSES (Part two)

Author
, associate professor, Kharkiv, Pushinska, 77
, associate professor, Kharkiv, Pushinska, 77

In heading

 Law;

Signed print

 26.05.2023

Issues number

 2023-№2 (53)

Page

 48-65

Type of articles

 Scientific article

Code UDK

 343.001

ISSN print

 2411-5584

Abstract

 Problem setting. The current trends in the development of domestic criminal law require the deepening of established ideas about the essence of such a criminal legal phenomenon as «mixed» guilt, new approaches to the analysis of the subjective side of complicated criminal offenses with «mixed» guilt and the rules of their qualification.
In this article, the authors do not pretend to provide an exhaustive solution to the issues raised, but consider it a source material for further, more in-depth clarification of the phenomenon of «mixed» guilt in criminal law, taking into account modern views on the understanding of law.
Recent research and publication analysis. Clarifying the peculiarities of the subjective side of complex single criminal offenses in the science of criminal law was carried out by the following scientists, as: Bazhanov M. I., Borisov V. I., Burchak F. G., Vereshha R. V., Korshansky M. Y., Matyshevskyi P. S., Navrotsky V. O., Pinayev A. A., Svetlov O. Ya., Kharchenko V. B., etc.
However, for the most part, in their scientific works, a complex study of the subjective side of criminal offenses with mixed guilt was not carried out, the different mental attitudes of a person to a socially dangerous act (action and inaction) and their consequences were not analyzed, and possible options for combining within one composition of a criminal offense were not considered intellectual and volitional moments of intentional and negligent forms of guilt.
Similarly, the legislative trends of both domestic and foreign criminal legislation regarding the possible enshrining in the law of the concept of «mixed» guilt were not studied separately.
Paper objective. The purpose and task of the publication is to propose a holistic approach to clarifying the essence of such concepts as «mixed» guilt, «double» guilt, «complex» guilt, «combined» guilt on a sound theoretical basis.
Paper main body. In connection with the above, the task of this publication is to propose, on a thorough theoretical basis, a holistic approach to clarifying the essence of such concepts as «mixed» guilt, «double» guilt, «complex» guilt, «combined» guilt. According to the authors, each of these concepts has the right to exist. They should not be opposed to each other, because they have the same legal nature and reflect the features of the complicated subjective side of some criminal offenses.
Also, thanks to the use of the integration method of research, analysis of the content of the relevant concepts, the authors seek to prove that «double», «complex» and «combined» guilt’s are types of a broader, so to speak, generic concept of «mixed» guilt, as well as to show the features of these criminal legal phenomena and their influence on the qualification of criminal offenses.
Conclusion of the research. First: the problem of «mixed guilt» in the theory of criminal law, as well as in the practice of its application, is not new to the relevant field. However, the debate and controversy regarding the definition, the list of components of criminal offenses, which, by the way, is inherent in «mixed guilt» and terminological disagreements in its designation determine the relevance of further research of this legal phenomenon.
The second: all torts in which «mixed guilt» is observed are characterized by such a mental attitude of a person to the committed action or inaction and its consequences, for which both signs of intent and signs of carelessness are simultaneously observed within the same composition of the criminal offense. A detailed analysis of the concept of «mixed guilt», its types and features of the qualification of criminal offenses in which it occurs, will be continued by the authors in the next article.
Third: «mixed guilt» is not a separate form of guilt. It should be considered exclusively in the context of specific features of the subjective side of some criminal offenses, the objective side of which is complicated. Within the specific subjective content inherent in the corresponding criminal offense, at least three types of «mixed guilt» can be distinguished, which should be designated using such terms as: «double», «complex» and «combined» guilt.
Fourth: each of the positions expressed in the scientific literature in defence of this or that term to denote the features of the subjective side of complicated criminal offenses has the right to exist and they (these terms) should not be excluded from scientific circulation.
Fifth: it is advisable to use the category «mixed guilt» as a generic concept that indicates the complicated subjective side of individual criminal offenses of a certain type. As it seems to us, this is exactly what A. Feuerbach had in mind when he introduced the appropriate terminology.
According to this understanding, the legal categories of «mixed guilt», as well as «double», «complex» and «combined» wine are related to each other as a generic concept with its types.
Sixth: as a «de lege ferenda» we propose to supplement Chapter V of the General Part of the Criminal Code «Guilt and its Forms» with the norm of the following content: «Mixed guilt is such a mental attitude of a person to the committed action or inaction provided for by this Code and its consequences, for which in within the limits of one and the same composition of a criminal offense, the intentional and careless forms of guilt coincide at the same time. At the same time, if as a result of the commission of an intentional act, grave consequences are caused that were not covered by the person’s intention, criminal responsibility for them arises only in cases where the person foresaw their occurrence, but frivolously counted on their aversion, or did not foresee their occurrence even though he should have could foresee them.
In general, such a criminal offense isrecognized as having been committed intentionally. In criminal offenses, where the act consists in a deliberate or careless violation of certain rules (that is, an administrative or disciplinary offense), a person’s attitude to socially dangerous consequences can only be careless. In general, such an act is recognized as a criminal offense committed out of carelessness».
Finally, the seventh: in order to harmonize the domestic criminal law with the criminal legislation of the EU countries, it seems appropriate, when reforming the Criminal Code of Ukraine, to use foreign experience regarding the normative consolidation of the concept of «mixed guilt».
Short abstract for an article
Abstract. The authors, based on a holistic approach to solving the problems posed in their first article in the collection of scientific works «Economic Theory and Law», No. 1 (52), 2023, substantiated the feasibility of defining mixed guilt as a generic concept that denotes a special, heterogeneous mental attitude person to the committed act and its consequences within the subjective side of the same сomposition of the criminal offense. It was proved that within the limits of the specific subjective side, inherent in some types of criminal offenses, there are at least three types of mental attitude of a person to the committed act and its consequences, which are expediently denoted by such terms as «double», «complex» and «combined» guilt. At the same time, they should not be opposed to each other, because they reflect the peculiarities of the subjective side of one or another component of a criminal offense and in themselves are types of the broader concept of «mixed» guilt.

Keywords

 the subjective side of the criminal offense, guilt, mixed guilt, double guilt, complex guilt, combined guilt.

Reviewer

External reviewer

Article in PDF

 48-65

Bibliography

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Code DOI

 https://doi.org/10.31359/2411‑5584‑2023‑53‑2-48

26.05.2023