ACTUAL PROBLEMSOF QUALIFICATION OF CRIME BY THE ART. 109 OF THE CRIMINAL CODE OF UKRAINE

2017 ◽  
Author(s):  
Hryhoriy Kraynik ◽  
◽  
Vitaliy Perzhul ◽  
Keyword(s):  
National Security ◽  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Code ◽  
Legal Certainty ◽  
Constitutional Order ◽  
Judicial Practice ◽  
The Media ◽  
The Subject ◽  
Important Object

This article is devoted to the analysis of the relevant Criminal Code of Ukraine, namely Art. 109 on the subject of legal certainty of its individual formulations, resulting on numerous problems that face relevant state bodies during the qualification of acts under this the norm. This article provides the criminal liability for the acts, aimed at forcible change or overthrow of the constitutional order, or seizure of state power. Along with this, article focused on the issue of increasing of criminal liability, when these acts are committed with the use of the media. It was figured out the specific judicial practice and demonstrated that the problems that arose in practice were not due to poor efficiency of the relevant state bodies, but due to the presence in the formulation of the content of the Art. 109 of Criminal Code of Ukraine of a large number of assessments in terminology. By resolving these criminal law conflicts of terminology and concept within crimes against the foundations of national security under Art. 109, it seems to be appropriate the replacement of ambiguous concepts on clear and specific provisions and their official interpretation directly in the Criminal Code of Ukraine. Deserves attention also the fact that the foundations of national security are particularly important object of protection by criminal law, as noted in Art. 17 of the Соnstitution of Ukraine, the protection of these foundations is the most important function of the state and the deal of the entire Ukrainian people. Therefore, we believe that the rules that ensure the protection of these goods must be clear and act on performance of tasks on protection of national security and other tasks of the Criminal code of Ukraine specified in its Art. 1.

scholarly journals TINJAUAN YURIDIS TENTANG GABUNGAN TINDAK PIDANA SEBAGAI HAL YANG MEMBERATKAN PIDANA Studi Kasus: Putusan Perkara Nomor:141/Pid.B/2018/PN Mrj (Pencurian)

2021 ◽  
Vol 3 (2) ◽  
pp. 212-226
Author(s):  
Failin Failin
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Code ◽  
Deterrent Effect ◽  
District Court ◽  
Prison Sentence ◽  
Legal Certainty ◽  
The Family ◽  
Sense Of Justice

In criminal law there is no penalty if there is no wrongdoing, this basis is about the accountability of a person for the actions he has done. Therefore, in criminal law there are exceptions to such criminal liability, for example contained in Articles 48, 49, 50 and so forth. In addition, there are burdensome things that will be imposed on the accused for crimes committed, such as samenloop, recidive and so on. In the Muaro Sijunjung District Court there is one case concerning a combination of criminal acts, namely theft crimes accompanied by violence and moreover this theft is carried out among families (theft in the family). In this case the judge has decided the prison sentence for 6 (six) Years. But according to the analysis of the author there is no sense of justice for the victim because this perpetrator is the husband of the victim's child so that there is no deterrent effect for the perpetrator, the reason that there is no more theft in this family because no matter how small the crime committed by a person must be taken action in order to obtain justice and legal certainty. In principle, judges have the freedom to determine the measure of punishment to be imposed on the perpetrators of crimes, as long as it does not exceed the maximum provisions specified in the Criminal Code. Therefore, the sentencing of the accused for a combination of crimes committed by means of pure absorption Stelsel that is If a person commits several acts that are several delik each threatened with a different kind of criminal

scholarly journals PROBLEMS OF CRIMINAL LAW EVALUATION OF PATENT TROLLING

2020 ◽  
Vol 30 (2) ◽  
pp. 282-288
Author(s):  
V.V. Rovneyko
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Code ◽  
Good Faith ◽  
Judicial Practice ◽  
Legal Nature ◽  
Sufficient Degree ◽  
Legal Costs ◽  
The One ◽  
Abuse Of Law

The article deals with the issues of criminal law and legal assessment of patent trolling, which, on the one hand, is a kind of abuse of law and violation of the principle of good faith of participants in civil legal relations, and, on the other hand, has a sufficient degree of public danger and prevalence to be the basis of criminal liability. The author's conclusions are based on the study of media materials and judicial practice. Most of the “victims” of patent trolling pay money, not being mistaken about the legality of the claims, but being guided by the desire to avoid legal costs and other problems associated with litigation. Establishing the criminal legal nature of patent trolling is somewhat problematic, since it is a combination of fraud and extortion in the broad sense of these concepts. Signs of existing crimes, such as fraud (article 159 of the criminal code) and extortion (article 163 of the criminal code), contain definitions of these concepts in a narrow sense. This does not allow such actions to be classified as specified crimes.

scholarly journals Subject Of A Crime Under French Criminal Legislation

2021 ◽  
Vol 03 (01) ◽  
pp. 63-68
Author(s):  
Khurshida Mirziyatovna Abzalova ◽  
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Code ◽  
The Subject ◽  
Criminal Legislation ◽  
Legal Entities

This article deals with the issues of criminal liability of persons (the subject of the crime) for committing crimes under the Criminal Code of France. It is noted that the French criminal law does not contain any special chapter devoted to the subject of the crime, but provides for important provisions on the responsibility of individuals and legal entities. Based on the analysis, it was concluded that it is necessary to apply the experience of France in terms of liberalizing the responsibility of minors and introducing the responsibility of legal entities.

scholarly journals RECONSTRUCTION OF PROSTITUTION LAW IN PERSPECTIVE OF RELIGIOUS NORMS AND RENEWAL OF CRIMINAL LAW

2020 ◽  
Vol 1 (2) ◽  
pp. 105-112
Author(s):  
Noor Fajari Rofiq
Keyword(s):  
Criminal Law ◽  
Sex Workers ◽  
Criminal Code ◽  
Service Users ◽  
Legal Certainty ◽  
Conceptual Approach ◽  
The Subject ◽  
The Law ◽  
The One ◽  
Legal Concepts

Cases of prostitution as the subject of commercial sex workers (Pekerja Sex Komersial) and sex service users until now are free to undergo without the threat of punishment. Until now, there has been no rule that can punish prostitutes or prostitutes and their customers .then there needs to be a legal reconstruction to achieve a responsive law then need to reform the law to achieve the law in the goal. This research aimed to know and understand the Construction of Prostitution Crimes in the Criminal Code, and The Penal Code Bill is associated with Religious Norms. And Know and understand the Construction of Formulation of Prostitution Crimes that are Ideal and in line with religious norms for Indonesian society, as for normative juridical research methods. The approach used in this writing is a statutory approach or (statute approach) and the analytical and conceptual approach analysis of legal concepts. The results show that it is necessary to explore the concept of philosophical, sociological, and juridical basic values that the state to have legal certainty in society in the Criminal War draft stage. So digging into the philosophical value of the 1st  Pancasila,  The One Godhead (Ketuhanan yang Maha Esa), the five religions apply in Indonesia, including Islam, Christianity, Catholicism, Hindu, Buddha, and Confucian has asserted that the practice of prostitution is legally prohibited.

scholarly journals Problems of criminal liability for illegal amber mining in Ukraine

2021 ◽  
pp. 113-117
Author(s):  
R.O Movchan ◽  
A.A Vozniuk ◽  
D.V Kamensky ◽  
O.O Dudorov ◽  
A.V Andrushko
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Main Type ◽  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Offense ◽  
Scientific Methods ◽  
Illegal Mining ◽  
General Scientific ◽  
The Subject

Purpose. Critical analysis of the criminal law provision on illegal mining of amber, identification of its shortcomings, development of proposals for their elimination. Methodology. The system of philosophical, general scientific and specific scientific methods and approaches, which have provided objective analysis of the subject under consideration, in particular, the method of systemic and structural analysis, specific sociological, statistical, comparative, formal-logical methods. Findings. Shortcomings of the criminal law provision on illegal mining, sale, acquisition, storage, transfer, shipment, transportation and processing of amber, in particular, unjustified expansion of the criminal law prohibition under consideration, unsuccessful design of the main and qualified components of the criminal offense under review, as well as unjustified sanctions. Originality. The authors have been among the first researchers in the domestic criminal law doctrine to provide a comprehensive critical understanding of the provision dedicated to the regulation of criminal liability for illegal amber mining, which has made it possible to develop scientifically based recommendations for improving domestic criminal law. Practical value. Based on the research results, specific proposals addressed to domestic parliamentarians have been developed, which can be taken into account in the process of further lawmaking in terms of updating relevant provisions of the Criminal Code of Ukraine. It is argued that the improved Art. 240-1 should only cover illegal mining of amber. The main structure of the researched criminal offense is proposed to be designed as material. It has been proven, including through references to specific law enforcement materials, that sanctions of Part1 of Art. 240-1 of the Criminal Code of Ukraine should provide for a fine as the only non-alternative main type of punishment, while referenced to alternative punishments in the form of a fine and imprisonment should be included in Parts 2 and 3.

scholarly journals Problems of criminal law protection of the national security of the state against subversive acts

2021 ◽  
Vol 10 (44) ◽  
pp. 307-315
Author(s):  
Oleksiy Pasyeka ◽  
Ruslan Shekhavtsov ◽  
Oleh Marmura ◽  
Stepan Burda ◽  
Taras Lutskyi
Keyword(s):  
National Security ◽  
Criminal Law ◽  
Criminal Liability ◽  
The State ◽  
Criminal Offense ◽  
The Subject ◽  
Criminal Legislation ◽  
Logical Semantic

The purpose of the article is to study the main problematic aspects of the regulation of liability for sabotage in the legislation of Ukraine. The subject of the research is the problematic aspects of the regulation of criminal liability for sabotage under the laws of Ukraine. In order to obtain reliable results, a number of methods are applied: dialectical, formal-logical, hermeneutic, logical-semantic, statistical, comparative-legal, etc. The results of the conducted research: modern threats to the national security of any state require effective measures of counteraction, including the qualitative criminal legislation. The main shortcomings of the regulation of liability for sabotage under the laws of Ukraine are due to the imperfection of the components of this criminal offense, as well as the misinterpretation of its provisions by the enforcer. In addition, it is determined that one of the important problems of liability for such action is the parallel existence of a terrorist act in the criminal legislation of Ukraine, and the components of a terrorist act by its content and nature in most cases coincides with the components of sabotage. A number of changes and additions to the criminal legislation of Ukraine on elimination of the specified problems are proposed.

LEGAL CONTENT OF CATEGORY“PREPARATION FOR PERFORMANCE OF AN INTENTIONAL CRIME”

2020 ◽  
pp. 39-45
Author(s):  
V. F. Lapshin ◽  
E. H. Nadiseva
Keyword(s):  
Criminal Law ◽  
Scientific Literature ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Cases ◽  
Judicial Practice ◽  
Special Part ◽  
Criminal Legislation ◽  
Principle Of Legality

The implementation of criminal liability for an unfinished crime, interrupted at the stage of preparation, is not consistent with the basic criminal law requirements, since the act committed at the stage of preparation, clearly does not contain any signs of a crime or its composition. At the same time, the imposition of punishment is carried out in accordance with the sanction of the norms of the Special part of the criminal code, which indicates the existence of an act not actually committed by the convicted person. This allows us to raise questions about the legality and necessity of bringing a person to criminal responsibility for an act recognized as preparation for the Commission of an intentional crime. The analysis of provisions of the current criminal legislation, sources of scientific literature, and also materials of judicial practice on criminal cases about incrimination of preparatory actions, allowed to draw a conclusion according to which attraction of the person to responsibility for Commission of the act characterized as preparation for Commission of crime, contradicts the principle of legality and justice. In this regard, it is proposed to change the current criminal legislation, eliminating the rules on the preparation of the Institute of unfinished crime.

scholarly journals About Some Problems of Criminal liability Regulation for Terror Crimes

2018 ◽  
pp. 21-24
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Code ◽  
Legal Responsibility ◽  
Practice Improvement ◽  
Judicial Practice ◽  
Individual Article ◽  
Financing Of Terrorism ◽  
Criminal Legislation

The article is devoted to the problem of criminal legal responsibility regulation for terror crimes. The authors analyze the legislative design of such crime compositions, provided by Ch. 24 of the current RF Criminal Code, first of all, the novels included in the Criminal Law in 2013 - 2017, the sanctions on criminal law norms, as well as the effectiveness of their implementation in practice. Critical remarks are made and proposals are introduced aimed at criminal legislation, as well as law enforcement practice improvement. The authors raise the problems of punishment imposition for committed crimes, in particular, criticize the legislator’s position on the imposition of less stringent sanctions for more dangerous forms of assistance to terrorists, and on the imposition of stricter sanctions for less dangerous forms of assistance to terrorism. Judicial practice is analyzed with the purpose to reveal the effectiveness of individual article provision application from RF Criminal Code. They performed the comparison of the criminal law revisions, and they analyzed the introduced changes. The authors make specific proposals to amend certain provisions of the criminal law, in particular, on the criminalization of responsibility for the financing of terrorism as an independent crime.

scholarly journals REPEATING AND RECURRENCE OF INTENTIONAL MURDER UNDER AGGRESSIVE CIRCUMSTANCES

2020 ◽  
pp. 352-361
Author(s):  
М. О. Василенко
Keyword(s):  
Criminal Law ◽  
Criminal Code ◽  
Criminal Record ◽  
Separate Study ◽  
Criminal Offense ◽  
Criminal Proceeding ◽  
Judicial Practice ◽  
Special Part ◽  
The Subject

In the article, the author conducted a study of recurrence and recurrence as forms of multiplicity of premeditated murder under aggravating circumstances. The relevance of this work is that this issue has not been the subject of a separate study among modern scholars of criminal law. In the work the author found that the recurrence of premeditated murder under aggravating circumstances, it is necessary to distinguish from a criminal offense under paragraph 13 of Part 2 of Article. 115 of the Criminal Code of Ukraine (premeditated murder committed by a person who previously committed premeditated murder, except for murder under Articles 116-118 of the Criminal Code of Ukraine), which is considered a qualifying (aggravating sign) premeditated murder. After all, in the case of premeditated murder by a person who has previously committed premeditated murder, with the exception of murder provided for in Articles 116-118 of the Criminal Code of Ukraine, a single crime is necessarily meant. The author also emphasizes that the recurrence of premeditated murder under aggravating circumstances is available only if the person has previously been convicted of premeditated murder, but the conviction has not yet been removed and not expunged. Or when a person has committed premeditated murder under aggravating circumstances provided by the same part of the article of the Special Part of the Criminal Code of Ukraine two or more times, and all episodes are considered in one criminal proceeding. In addition, the paper found that recurrence and recidivism, as forms of multiplicity of premeditated murders under aggravating circumstances, are not mutually exclusive and can be used by the court as a whole. It is concluded that in judicial practice there are many cases when courts do not clarify the issue of expungement or removal of a criminal record when imposing a penalty for repeated intentional homicides in aggravating circumstances. Therefore, the solution of this issue, in our opinion, needs legislative consolidation. After all, the recurrence of premeditated murder under aggravating circumstances is available only if the person has previously been convicted of premeditated murder, but the conviction has not yet been removed and not expunged. Or when a person has committed premeditated murder under aggravating circumstances provided by the same part of the article of the Special Part of the Criminal Code of Ukraine two or more times, and all episodes are considered in one criminal proceeding.

scholarly journals Consequences of failure to pay a court fine

2020 ◽  
Vol 11 (3) ◽  
pp. 639-650
Author(s):  
Nina Yu. Skripchenko ◽  
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Prosecution ◽  
Judicial Practice ◽  
The Supreme Court ◽  
Legislative Regulation

The article discusses issues that arose during enforcement of the new grounds for exemption from criminal responsibility, enshrined in 2016, in connection with a court fine (Article 76.2 of the Criminal Code). Despite the criticism of its legislative regulation, demand for a new way of ceasing criminal prosecution began to appear in connection with the non-payment of a fine. Having determined the voluntary execution of a court fine, the legislator did not settle the issue of the further execution of the fine in cases where there are valid reasons for non-payment. After analyzing the existing proposals to solve this problem, the author confirms that the elimination of the gap would be facilitated by the legislative obligation of the bailiff to establish the circumstances by which the judicial penalty is not paid, as well as the addition of the list of decisions made by the bailiff to suspend enforcement proceeding. Analysis of judicial practice showed that Art. 76.2 of the Criminal Code began to be applied in cases where the court has justification for implementing less onerous grounds for the defendant to be exempt from criminal liability. Legislative duplication of the conditions under which criminal prosecution can be terminated for various reasons calls into question the wide alternative of the latter, as well as the embodiment of the idea of humanizing criminal law, which is the basis for securing a new ground for exemption from criminal liability. The article substantiates the proposal to supplement the Resolution of the Plenum of the Supreme Court dated June 27, 2013 with a provision allowing the release of a person from criminal responsibility with a judicial fine in cases where the court has no basis for suspending criminal prosecution for unconditional types of exemption from criminal liability. The author draws attention to the gap in the legislation, part 3 of Article 78 of the Criminal Code, which is related to the renewal of the statute of limitations for criminal liability when an individual avoids paying a court fine.

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