TO THE QUESTION OF THE TYPES OF COMPOSITION OF CRIMINAL OFFENSES WITH ALTERNATIVE FEATURES

Author
, associate professor, Kharkiv, Pushinska, 77
, Graduated student of the Criminal Law Department, Ukraine, Kharkiv

In heading

 Law;

Signed print

 05.09.2024

Issues number

 2024 - №3 (58)

Page

 57-75

Type of articles

 Scientific article

Code UDK

 343.232:343.238

ISSN print

 2411-5584

Abstract

 Problem setting. The study of individual criminal offenses, their features and types have great importance for domestic criminal law. First of all, because a single criminal offense is a structural element of multiple criminal offenses. Therefore, the resolution of many issues related to the establishment of the types of single criminal offenses, the delimitation of their adjacent components, etc., depends on how clearly the Criminal Code sets out the characteristics of the relevant components of single criminal offenses, which ensures the correct qualification and punishment for the committed act.
In the article, the authors make an attempt to investigate individual criminal offenses with alternative features, which are the least studied in the theory of criminal law, to draw conclusions about the peculiarities of their legislative constructions, legal nature and types, and consider this material as the basis for further, more in-depth studies of these offenses.
Recent research and publication analysis. Recently, in the domestic literature on criminal law, the multiplicity of criminal offenses, and individual criminal offenses and their types and structural elements of multiplicity, have been actively studied, but there is no unity of opinion among scientists.
Many works have been devoted to this problem in general or to its individual issues, among the authors of which are: M. I. Bazhanov, R. V. Veresha, I. O. Zinchenko, M. I. Korzhanskyi, V. O. Navrotskyi, A. O. Pinaiev, A. M. Risheliuk, V. I. Tiutiuhin, A. A. Stryzhevska, and others.
Most of their scientific achievements related to the study of various aspects of the institution of multiplicity of criminal offenses, its types and problematic issues of qualification. Individual criminal offenses were analyzed by the authors not as an independent criminal-legal phenomenon, but from the perspective of a structural element of plurality. Currently, there is only one scientific work in the domestic literature, which is devoted directly to the problem of individual criminal offenses. This is a monograph by I. O. Zinchenko and V. I. Tiutiuhin «Individual crimes: concepts, types, qualification» of 2010.
Paper objective. The purpose of this article is to theoretically determine the legal nature and types of individual criminal offenses with alternative features, to establish the legislative technique, with the help of which the corresponding compositions of criminal offenses are constructed. The authors also want to show the specifics of this type of individual criminal offenses and to consider certain problems of their qualification.
Paper main body. A simple single criminal offense should be considered a socially dangerous act with the composition of a minor crime or crime, in which the objective and subjective elements are not complicated by additional features.
In complicated individual criminal offenses, compared to their simple types, the objective or subjective side is more complex. The specified elements of such compositions of criminal offenses have additional features that give them an external resemblance to multiplicity, due to which, as a rule, in practice there are difficulties in qualifying and distinguishing the relevant torts from related criminal legal phenomena.
Compositions of criminal offenses with objective alternative features include compositions with alternative objects or subjects; compositions with alternative actions; compositions with alternative consequences and with an alternative development of the causal relationship; compositions with alternative ways and means of committing a criminal offense.
Compositions of criminal offenses with subjective alternative features should include: compositions with alternative subjects of criminal offences; syllables with alternative forms of sin; compositions with alternative purpose or motives.
Conclusion of the research. 1. Compositions of criminal offenses with alternative signs occur where, within the limits of one disposition of the criminal law norm, the legislator points to several alternative objective or subjective signs of a socially dangerous act, and in order to recognize the criminal offense as complete, it is sufficient to establish the presence of at least one of the specified signs
2. When constructing the composition of criminal offenses with alternative features, a special technique of legislative technique is used, which consists in enshrining in the disposition of the article of the Special Part of the Criminal Code a possible list of objective or subjective features of the corresponding socially dangerous act, while the establishment of at least one of the alternatively stated features is sufficient for the completed composition of the criminal offense.
3. According to the content, alternative features of the composition of criminal offenses, fixed in the dispositions of the articles of the Special Part of the Criminal Code, can be diverse and relate to either the external or internal side of the criminal offense. All сomponents of these criminal offenses should be divided into two types: 1) components of criminal offenses with objective alternative features; 2) composition of criminal offenses with subjective alternative features.
4. Compositions of criminal offenses with alternative actions are the most common in legislation. The objective side of such criminal offenses consists of several alternatively defined socially dangerous actions (sometimes in combination with inaction), the commission of each of which (or their sum) constitutes the complete composition of the corresponding criminal offense.
Short аbstract for an article
Abstract. In the article the concept of single criminal offenses with alternative features, which are the least studied in the theory of criminal law, is examined. Their legal nature is determined, the basis for classification is substantiated. The methods of legislative technique when formulating the relevant compositions of criminal offenses are analyzed. It has been proved that it is expedient to divide all the components of single criminal offenses with alternative features into components of criminal offenses with objective alternative features, and composition of criminal offenses with subjective alternative
features.

Keywords

 alternative features, multiplicity of criminal offenses, single criminal offense, composition of a criminal offense.

Reviewer

External reviewer

Article in PDF

 57-75

Bibliography

 1. Zinchenko, I. O., & Tiutiuhin, V. I. (2008). Mnozhynnist zlochyniv: poniattia, vydy, pryznachennia pokarannia [Multiplicity of crimes: concepts, types, purpose of punishment]. FINN [in Ukrainian].
2. Bazhanov, M. I. (2012). Vybrani pratsi [Selected works]. (Ed. by V. Ya. Tatsii). Pravo [in Ukrainian].
3. Veresha, R. V. (2023). Kryminalne pravo Ukrainy. Zahalna chastyna [Criminal law of Ukraine. General part]. Alerta [in Ukrainian].
4. Zinchenko, I. O., & Tiutiuhin, V. I. (2010). Odynychni zlochyni: poniattia, vydy, kvalifikatsiia [Individual crimes: concepts, types, qualification]. FINN [in Ukrainian].
5. Korzhanskyi, M. Y. (2004). Prezumptsiia nevynuvatosti i prezumptsiia vyny [The presumption of innocence and presumption of guilt]. Atika [in Ukrainian].
6. Navrotskyi, V. O. (2009). Osnovy kryminalno-pravovoi kvalifikatsii [Fundamentals of criminal law qualification]. Yurinkom Inter [in Ukrainian].
7. Pinaiev, A. O. (2005). Kryminalne pravo Ukrainy. Zahalna chastyna [Criminal law of Ukraine. General part]. Kharkiv yurydychnyi [in Ukrainian].
8. Rysheliuk, A. M. (2015). Zakonotvorchist v Ukraini [Law-making in Ukraine]. In-t zakonodavstva Verkhovnoi Rady Ukrainy [in Ukrainian].
9. Stryzhevska, A. A. (2004). Vyznachennia zmistu poniattia «povtornist zlochyniv» [Defining the content of the concept of «repetition of crimes»]. Prokuratura, liudyna, derzhava – The prosecutor’s office, the person, the state, 5(35), 57–62 [in Ukrainian].
10. Tatsii, V. Ya., Borysov, V. I., & Tiutiuhin, V. I. (Eds.). (2020). Kryminalne pravo Ukrainy. Zahalna chastyna [Criminal law of Ukraine. General part] (6th ed.). Pravo [in Ukrainian].
11. Busel, V. (Ed.). (2016). Ukrainskyi tlumachnyi slovnyk: blyzko 250 000 sliv [Ukrainian explanatory dictionary: about 250,000 words]. Perun [in Ukrainian].
12. Shevchenko, Ye. V. (2005). Zlochyny z pokhidnymy naslidkamy [Crimes with derivative consequences]. Vydavnytstvo SPD FO Vapniarchuk N. M. [in Ukrainian].
13. Shevchenko, Ye. V. (2012). Do pytannia pro strukturu kryminalno-pravovoi normy [On the question of the structure of the criminal law norm]. Problemy zakonnosti – Problems of legality, 118, 125–134 [in Ukrainian].
14. Baulin, Yu. V. (2004). Zvilnennia vid kryminalnoi vidpovidalnosti [Exemption from criminal liability]. Atika [in Ukrainian].
15. Demydenko, H. H., & Yermolaiev, V. M. (2017). «Pravda Ruska» Yaroslava Mudroho: pochatok vitchyznianoho zakonodavstva [«Pravda Ruska» by Yaroslav Mudryi: the beginning of domestic legislation]. Pravo [in Ukrainian].
16. Postanova VSU vid 07.02.2013 u spravi № 5-30ks12. (2013). [Resolution of the Supreme Court of Ukraine dated February 07, 2013 in case No. 5-30кс12]. https://zib.com.ua/ua/15822‑postanova_verhovnogo_sudu_ukraini_vid_07022013_5-30ks12_teks.html [in Ukrainian].
17. Postanova PVSU № 7 vid 04.06.2010 «Pro praktyku zastosuvannia sudamy kryminalnoho zakonodavstva pro povtornist, sukupnist i retsydyv zlochyniv i yikh pravovi naslidky». (2010). [On the practice of courts applying criminal legislation on repetition, aggregation and recurrence of crimes and their legal consequences. Resolution of the Plenum of the Supreme Court of Ukraine No. 7 dated June 04, 2010]. https://zakon.rada.gov.ua/laws/show/v0007700-10#Text [in Ukrainian].
18. Panov, M. I. (2020). Vybrani pratsi z problem pravoznavstva [Selected works on the problems of jurisprudence]. Pravo [in Ukrainian].

Code DOI

 https://doi.org/10.31359/2411-5584-2024-58-3-57

This post is also available in: Ukrainian

05.09.2024