Sm fitkovskyy Researcher of the Department of Criminal Law and Procedure Universities \

Sm fitkovskyy Researcher of the Department of Criminal Law and Procedure Universities ' National Academy of Management




НазваSm fitkovskyy Researcher of the Department of Criminal Law and Procedure Universities ' National Academy of Management
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CRIMINAL legal analysis of the perpetrator Clause 1 Part 2 of Art . 115 CC UKRAINE
SM Fitkovskyy

Researcher of the Department of Criminal Law and Procedure

Universities ' National Academy of Management »
Statement of the problem . Development of Ukraine as legal, democratic and social state should be primarily aimed at the protection of human and civil rights, ensuring their rights and freedoms. The Constitution of Ukraine defines the man and his life as the highest social value in Ukraine . The State's duty to protect human life is defined by law , which is reflected in the establishment of the state criminal liability for attempt on life .

In recent years, marked increase in the number of murders with aggravating circumstances, one of which is the murder of two or more persons , but because the problem subject of the offense features high gain relevance. Illustrative example of this is a tragic accident September 26, 2012 in Kyiv at the mall "Caravan ", which is unknown shot three private security guards .

The relevance of this topic is also due to several factors : first , the state of crime in Ukraine , including a large number of unsolved murders . Thus, according to the Ministry of Interior only nine months of 2012 in Ukraine committed 82 murders 18 were not disclosed . [12] Second, incorrect qualification of crimes related to homicide , third, the adoption of the new Criminal Procedure Code of Ukraine , which entails the preparation of a number of laws on amendments to the Criminal Code.

 Analysis of recent research and publications. Problems criminal responsibility for murder and features of the subject of this crime are discussed in the works of many scientists, including: AI Alekseev , MI Bazhanov , V. Baulina , AV Vladimirov , VA Glushkov , AA Shaves, O. Gorokhovsky , VK Grischuk , VT Dziuba , AP Zelinsky, MI Korzhanskoho , MP Korolenka AP Litvin , VM Mamchur , VA Navrotsky , VI Osadcha, VS Orlov , VG Pavlova, MI Panova, OR Ratinova , V. Stashys , VJ Trays, SD Shapchenka , SS Yatsenko et al. However , the state and the logic of the previous research , the current investigative practice , the requirements of the Constitution of Ukraine and international legal acts of the Convention on Human Rights called for new approaches to the subject of the crime.

All of the above resulted in the choice of topic and article that is relevant and has theoretical and practical value.

The purpose of the article. Expand the features of the subject offense under Part 2 of Article 115 Paragraph 1 of the Criminal Code of Ukraine .

The main results of the study. Question of the perpetrator is very important in the theory and practice of criminal law , because an offense is one of the required elements of the crime and organically linked to the objective side , the object and the subjective side .

The legislation stipulates that the perpetrator of the crime - a person of sound mind who committed a crime under the age of which can occur criminal responsibility ( Part 1 of Art . 18 of the Criminal Code of Ukraine) . [1]

These characteristics of the individual as the perpetrator of the criminal law or defined as total binding. An offense which the only common characteristic ( required ) signs recognized general [2 ].

Exploring Clause 1 of Part 2 of Art. 115 of the Criminal Code of Ukraine, which includes responsibility for the murder of two or more persons, we conclude that the crime can be committed only by a general subject. This is evidenced by the fact that the disposition of the said rules are no indications of any additional features that characterize the subject.

Thus , it allows us to assert that an intentional killing of two or more persons are characterized by three essential characteristics that characterize it . It should be:

1) a natural person ;

2) sane ;

3) to reach the age at which criminal liability may occur .

The first sign of the perpetrator - an individual - the inability to establish criminal liability of legal persons for any offense . That is, recognizing the offender only individual ( man as a biological being , endowed with certain social characteristics ) , it is clear that criminal law treats crime as a social phenomenon , and therefore consistently held the line that the offender can only be a person who has a mind and will of relative freedom [3 , p. 258 ].

In this regard, one of the essential features of the subject offense under Section 1 of Part 2 of Art. 115 of the Criminal Code of Ukraine, sanity is the person who committed the wrongful intentional infliction of death to two or more persons. Sanity is always an integral part of , the feature of a person subject to criminal liability [4 , p. 55]. In Part 1, Art . 19 Criminal Code of Ukraine stated that sane is a person who at the time of the offense could be aware of his actions (inaction ) and manage them. Fully support the interpretation of these signs VJ Trays, which determines the ability of a person while committing the offense aware of their actions (inaction ) means a proper understanding of the actual objective evidence of a crime ( object dangerous consequences ) and to be associated with the ability to monitor, control their actions. Here, the mind and will of interdependent and only together determine the behavior of a person in a particular situation [ 5, p. 131].

In general , the content of insanity as a legal basis guilt and criminal responsibility includes the ability of the person at the time of commission of offense under Section 1 of Part 2 of Art. 115 of the Criminal Code of Ukraine, the right to realize the features of the act, the situation, time and place of its commission, socially dangerous consequences , the causal relationship between the act and the consequences of , and the ability to consciously control his actions , manifested in the form of premeditated murder of two or more persons .

The third prerequisite for holding a person criminally responsible for the murder of two or more persons is the statutory age. For a detailed analysis of the feature of this type of crime should apply to determine age. In legal encyclopaedia states that it must be understood under the age period from birth person to any point of reference ( chronological age ) and characteristics of a period of life that reflects anatomical and physiological state of the organism ( human biological age ) [8, with. 471 ].

Age as a sign of the perpetrator - an integral part of and directly affect the criminal responsibility of perpetrators of crime. It is clear that the achievement of a certain age - one of the prerequisites for bringing a person to justice. The basis of the definition of age is not the severity of the offense , and the ability of individuals to realize how perfect it socially dangerous , illegal act and thereby deliberately plot against the criminal legal prohibitions [6 , p. 86].

As a general rule , criminal liability shall be persons who, in the commission of the crime was sixteen years old. In the theory of criminal law is defined as the total age of criminal responsibility. However, the legislation provided for the so-called reduced the age at which criminal liability may occur . Accordance with Part 2 of Article 22 of the Criminal Code of the person who committed the crime at the age of fourteen to sixteen years of age shall be criminally liable for a number of offenses listed therein .

From the analysis of art. 22 Criminal Code of Ukraine shows that reducing the age of criminal responsibility is set for grave and especially grave crimes in the amount of forty-seven , which are different from other degree of public danger. The need to establish in law the minimum age of criminal responsibility due to the fact that this fact is related to the ability of individuals to realize the nature and the danger of his actions or control them. In this context is not allowed to bring the person responsible for the actions , the social importance of which it is aware.

However, setting the minimum age limit for the calendar of criminal responsibility should be justified socially and Criminology . This takes into account a number of factors :

- The degree of physical and mental development, social and psychological characteristics (intellectual , volitional , emotional ) person , the level of socialization as individuals that determine the ability of the entity during the commission of the act to realize its actual nature and social danger ;

- Criminological indicators (prevalence of acts of this type among people of a certain age , their weight , etc.);

- Principles of penal policy (eg feasibility of establishing criminal legal ban) [9 , p. 35].

As you know , criminal responsibility for murder of two or more persons coming from fourteen years of age , which corresponds to the provisions of Part 2 of Art. 22 Criminal Code of Ukraine .

However, the liability of a minor for the murder of two or more persons is only possible when the actions of the perpetrator covered by a single intent and committed, usually in the same place at the same time or with a small interval of time. With this motivation murder of two or more persons may be different.

To date , the scientific literature , many scholars have suggested about lowering the age of criminal responsibility for the murder.

Thus , VF Frost offers teenagers aged 11- to 14 -year-old to prosecute criminally liable if they commit heinous crimes of aggression ( murder , grievous bodily harm , rape , intentionally committing acts that could cause an accident Train ) [10, with. 9]. Slightly wider range of offenses VM offers Burdin , who believes that minors between the ages of 11- to 14 -year-old can be brought to criminal liability only for intentional murder (Article 115 of the Criminal Code of Ukraine), grievous bodily harm (Article 121 of the Criminal Code of Ukraine) , rape ( art. 152 of the Criminal Code of Ukraine), forcible sexual unnatural way (Article 153 of the Criminal Code of Ukraine) , theft (Article 185 of the Criminal Code of Ukraine) , robbery (Article 186 of the Criminal Code of Ukraine) , robbery (Article 187 of the Criminal Code of Ukraine) , with known false report of a threat to the safety of citizens , destruction or damage of property (Article 259 of the Criminal Code of Ukraine) [ 11, p. 41-42 ].

This point of view has a right to exist, but we believe that the age of criminal responsibility fourteen reasonably defined as a subject at an early age rather aware of the fact of causing the death of several persons . Thus, quite reasonable opinion OD Sitkovskiy that based on the overall assessment studies the age of criminal responsibility of psychologists and lawyers found that mostly all the authors characterize the age period of 14 to 15 years as a period of fairly rapid development of intellect and will, well as the individual himself, allowing his motives relate to the social norms of behavior [ 7, p. 109].

Conclusions. In summary , we believe it possible to draw the following conclusions:

1) the offender under paragraph 1 of Part 2 of Art. 115 of the Criminal Code of Ukraine, is a natural , sane person who has reached the age of fourteen ;

2 ) reducing the age of criminal responsibility due to:

- The severity and degree of public danger, the offense ;

- The ability of individuals aged 14 years and understand the nature of the danger of his actions or control them ;

3) for the subject offense under Section 1 of Part 2 of Art. 115 of the Criminal Code , the only prerequisite is the intent to commit murder of two or more persons.
REFERENCES

1. On Amendments to Certain Legislative Acts of Ukraine regarding liability for corruption offenses : Law of Ukraine № 3207-17 of April 7, 2011 / / BD. - 2011. - № 41. - Art. 414.

2. Vladimirov , VA Subъekt crime in Soviet criminal law : [ lecture ] / VA Vladimirov, GA Levitsky . - Moscow: Higher School MOOP RSFSR , 1964. - 59 p.

3. The course of criminal law . Obschaya part. - Vol 1: Scientists at the crime / [ ed. NF Kuznetsovoy and IM Tyazhkovoy ]. - Moscow: Izd Mirror , 1999. - 592 p.

4. V. Pavlov Subъekt crime and uholovnaya responsibility / VG Pavlov. - St. Petersburg: Lan , St. Peterburhskyy Inst Ministry of Internal Affairs of Russia , 2000. - 192 p.

5. Criminal Law of Ukraine : General: textbook. for students. Legal. special. high. educational institutions / MI Bazhanov, Y. Baulin VI Borisov et al , [ ed. prof. MI Bazhanov , VV Stashys , VJ Trays ]. Kyiv - Kharkiv : Yurinkom Inter -Law , 2002. - 416 p.

6. Sotula OS Criminal responsibility for the attempt on the life of the state or public figure : dis. candidate. Legal. sciences: 12.00.08 / Sotula Alexander Sergeyevich. - Kharkov, 2003. - 201 p.

7. Sytkovskaya OD Psychology uholovnoy liability / OD Sytkovskaya . - Moscow : Norma , 1998. - 285 p.

   8. Legal Encyclopedia : The 6 t / [ redkol . : YS Shemshuchenko ( vidp.red . ) And others. ]. - K.: Eng. Encyc. , 1998. - Vol.1 : A-D . - 672 p.

    9. SCIENTIFIC and practical commentary to the Criminal Code of Ukraine / [ PS Matyshevska , EV Fesenko, SD Shapchenko et al .] , For the Society. eds. SS Yatsenko . - [ 4th ed . , Revised. and add. ]. - K.: ASK , 2005. - 848 p. - ( Statutory records and documents ).

10. Claus V. Delinkventnist children under the age of fourteen ( criminological problems) : Author. candidate. Legal. sciences specials. 12.00.08 " Criminal law and criminology, penal law" / VF Frost. - Kharkov, 1999. - 19 p.

11. V. Burdin Features criminal responsibility of minors in Ukraine dis. candidate. Legal. sciences: 12.00.08 / Vladimir N. Burdin . - Kyiv , 2002. - 225 p.

12. Status and structure of crime in Ukraine : Ministry of Internal Affairs of Ukraine. Official web site: [electronic resource] / / 11/12/2012 . - Access mode . - Http:// mvs.gov.ua /. - The name of the screen.
Фітьковський С.М. Кримінально-правовий аналіз суб’єкта злочину, передбаченого п. 1 ч. 2 ст. 115 КК України

У статті на основі чинного законодавства, наукових праць та досліджень проводиться аналіз особливостей суб’єкта злочину, передбаченого п. 1 ч. 2 ст. 115 КК України, особлива увага приділяється питанню віку, як однієї з головних ознак суб’єкта даного злочину.

Ключові слова: суб’єкт, умисне вбивство, фізична особа, осудність, вік, кримінальна відповідальність.
^ Фитьковский С.Н. Уголовно-правовой анализ субъекта преступления, предусмотренного п. 1 ч. 2 ст. 115 УК Украины

В статье на основании действующего законодательства и научных робот проводится исследование особенностей субъекта преступления, предусмотренного п. 1 ч. 2 ст. 115 УК Украины, особенное внимание уделяется вопросам возраста, как одного из главных признаков субъекта данного преступления.

Ключевые слова: субъект, умышленное убийство, физическое лицо, вменяемость, возраст, уголовная ответственность.
Fytkovskyi S.M. Criminal and legal analysis of the subject of crime under paragraph 1, part 2 of the Article 115 of the Criminal Code of Ukraine

Based on the current legislation, academic papers and the research studies, the article offers an analysis of specific features of the subject of crime under paragraph 1, part 2 of the Article 115 of the Criminal Code of Ukraine. Special emphasis is made to the issues of age, as one of the main characteristics of the subject of the above crime.

Keywords: subject, intended murder, natural person, sanity, age, criminal liability.



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