Генеза вітчизняного законодавства про кримінальну відповідальність за державну зраду

The article is devoted to the issues of criminal liability for enforced disappearance in criminal law of Ukraine. The international legal conditionality of the appearance of this prohibition in the Criminal Code of Ukraine, its adequacy to the modern needs of combating this phenomenon as well as the compliance with the conditions of implementation of the provisions of international legal acts in the national criminal legislation are analyzed. It should be taken into account that international legal acts describe the need to criminalize socially dangerous behavior, and the form of such criminalization is chosen by states in accordance with national traditions of law-making. The article cites and analyses corpus delicti of the criminal offence provided for by Article 146-1 of the Criminal Code of Ukraine «Enforced Disappearance», which appeared in the criminal law as a result of the adoption of the Law of Ukraine «On the Legal Status of Missing Persons». Potential difficulties in applying the norm provided for by Article 146-1 of the Criminal Code of Ukraine to socially dangerous acts, cases of unjustified competition and conflict of norms are revealed. It is stated that the norm provided for by Part 1 of Article 146-1 of the Criminal Code of Ukraine, is partly special in relation to several norms provided for by other articles of the Criminal Code: Article 146 «Illegal confinement or abduction of a person»; Article 371 «Knowingly unlawful detention, compelled appearance, house arrest or taking into custody»; Article 365 «Excess of authority or official powers by a law enforcement officer»; Article 364 «Abuse of authority or office». It should be noted that before the introduction of Article 146-1 to the Criminal Code of Ukraine virtually all the behavior constituting enforced disappearance, the criminalization of which was the obligation of the Ukrainian state under the Rome Statute of the International Criminal Court and International Convention for the Protection of All Persons from Enforced Disappearance, constituted criminally prohibited behavior in accordance with the above mentioned «general» criminal law norms. The exception, in fact, is only the formal corpus delicti of indulgence, which is not covered by Article 364 of the Criminal Code of Ukraine and the introduction of which into the system of criminal offences under the current Criminal Code of Ukraine we completely approve. The article also analyses the prospects of the adoption of amendments to the Criminal Code of Ukraine, proposed in the draft Law of Ukraine «On Amendments to Certain Legislative Acts of Ukraine on the Implementation of Norms of International Criminal and Humanitarian Law», which offers to supplement the Criminal Code of Ukraine with Article 442-1 «Crimes against humanity». Thus, the Ukrainian legislator will react for the second time to its international legal obligations regarding the implementation of the norms of international humanitarian law. The following options for preventing real and potential threats in the criminal law regulation of liability for enforced disappearance are proposed: to borrow the German experience of criminal law regulation in this area of public relations as well as to adopt the law on international criminal law.

The current time context is dominantly marked by changes and development. In public discourse, it is often emphasized that change is the only constant. In the spirit of that statement, criminal law itself, as the most exclusive instrument of the state's reaction to crime, is in constant development - status semper reformandus. Changed social circumstances determine the dynamics and character of changes in the criminal legal framework. It should certainly be a rational and relatively consistent system of legal documents, but by no means sluggish and inadequate. Continuity of changes in criminal law provisions is present in all European criminal legislation, including the Serbian one. Changes as such are not always marked as necessary and adequate, but numerous are precisely of this type and are most prominent in the area of criminal offenses from the mala prohibita category. One of the segments that the criminal law protects is the legal and undisturbed performance of economic activity, the aspects of which are developing in several directions. The paper will analyze the peculiarities of the criminal protection of legal flows of insurance, its possibilities and scope, both in the provisions of the Criminal Code (CC) and in the provisions of secondary criminal legislation - in this case the Insurance Law (IL). This analysis refers both to the nomotechnical peculiarities of the criminal offense of insurance fraud in the CC, as well as to some fundamental problematic questions of determining the mutual conditionality of criminal law norms with the conditions of modern economic crime, the question of how criminality vice versa shapes insurance products. All classic research methods in legal sciences will be used in the work, primarily the dogmatic-legal and normative method. In conclusion, it is emphasized that criminal law provides protection to the legal functioning of insurance as an activity within the framework of the financial sector and as such directly protects economic activity, especially in relation to the group protection facility that the criminal offense of insurance fraud has within the framework of the Special Part of the CC. Criminal law norms are included in the framework of the lex specialis - the Insurance Law, which shows that this regulation in the field of criminal law protection is within the framework of secondary legislation, but as confirmed in the paper, it is legitimate and without unnecessary overlapping of incriminations.

The article is devoted to the issues of “large-scale” improvement of special banking, tax and criminal legislation, filling gaps and eliminating contradictions between certain norms of Criminal, Civil and Banking Law. The development of entrepreneurship in general and the capital market in particular requires a radical revision of not only the Criminal Code, but also a coordinated change in the entire block of criminal law regulations. The need to take urgent measures to improve legislation is also due to the fact that the sphere of banking capital has become one of the most criminogenic sectors of the domestic economy. The article examines certain issues related to the lagging behind the formation of a system of legislative support for new monetary relations from the pace of the formation of a free market. The improvement of the capital market requires an integrated approach to the improvement of criminal, banking and tax legislation, the achievement of full consistency, a clear formulation and assimilation of the basic concepts and categories of financial activity, the formation of strong business traditions. The sphere of financial and credit relations, due to the complete absence of legal regulation of new types of activities, turned out to be open to illegal encroachments, in connection with which the author comes to the conclusion that it is necessary to include new articles in the Criminal Code of the Russian Federation aimed at protecting “civilized” entrepreneurs from criminal encroachments. In conclusion, a proposal was made on the need to supplement the criminal legislation with a number of conceptual provisions that ensure the functioning of the capital market and the protection of civilized banking.

In the context of full-scale armed aggression against Ukraine, the issue of torture is becoming particularly acute. The use of torture in occupied territories, in places of detention, and against civilians and prisoners of war is not only a gross violation of human rights, but also a serious war crime. The classification of such acts is complicated by the specifics of martial law, the multiplicity of possible criminal offenses, and the need to simultaneously apply the norms of national criminal law and international humanitarian law. The lack of consistency in legislative norms, the absence of uniform judicial practice, and the need to comply with international human rights standards necessitate a scientific analysis of this issue. The correct legal classification of torture determines not only the effectiveness of criminal prosecution of the perpetrators, but also the restoration of justice for the victims and the formation of an evidence base for international courts. The article examines the problem of qualifying torture in conditions of martial law and armed conflict, which is particularly relevant in the context of contemporary challenges related to military aggression against Ukraine. It analyzes the norms of national criminal legislation, international legal acts, and the practice of international judicial institutions regarding the definition of torture, its composition, and characteristics. Particular attention is paid to the relationship between torture and war crimes, crimes against humanity, and violations of the rules of war. The problems of distinguishing torture from other crimes against human life, health, and honor are considered, as well as the peculiarities of qualification, taking into account martial law as a qualifying circumstance. The need to improve criminal law mechanisms for bringing to justice those who commit torture in armed conflict and to bring national practice into line with international human rights standards is justified. Keywords: torture, war crime, martial law, international law, criminal legislation of Ukraine.

Freedom is a natural-legal value that makes up the essence of human nature and therefore it is innate. The latter determines a research interest in how freedom in all the variety of its essential features (freedom, choice, freedom of will, boundaries of freedom, independence of an individual, etc.) manifests itself in various forms of human life, including such a segment of positive law as criminal law. Being a guarantee of personality development, allowing it to break out of the circle of diverse social connections determining its behavior, freedom, nevertheless, has certain limits of its activity. The establishment of these boundaries is necessary to ensure the freedom of each person so that the freedom of one does not become the non-freedom of the other. These boundaries are set by all positive law, including criminal law. Hence, ensuring personal freedom should be the goal of criminal law-making and criminalization of dangerous forms of human behavior. However, ensuring freedom and educating a person in the spirit of a conscious and responsible choice is not the same thing. Therefore, mixing or combining these goals in criminal law is contrary to the goals of legal regulation and testifies to the right of paternalism, incompatible with the purpose and possibilities of law in general and criminal law in particular. The realization of freedom outside is the act of a person, which is the result of a conscious choice of one of the many options for the behavior of the individual as a rational being. Consequently, a set of conscious behaviors themselves, as well as criminal ones which have not gone beyond the limits of its mental activity, i.e. not taken place in the act, under no circumstances can be declared criminal. Hence, the authors once again emphasize that the occurrence and revealing intent to commit a crime are indifferent to the criminal law and are outside its scope. Freedom as a choice embodied in a person's deed is ensured by the establishment of norms in criminal law aimed at protecting external freedom. The latter, through criminal law, legally guarantees an individual the possibility of unimpeded movement, choice of place of residence, place of stay, acting in this capacity as a prerequisite for the realization of freedom in its anthropological dimension. But human freedom manifests itself most vividly as a sign of guilt, which is an indispensable sign of any corpus delicti – the only basis for criminal liability and, therefore, the most serious personality restrictions. It should be noted that the principle of guilt (liability for guilt) is enshrined in the criminal law (Article 5) among the fundamental principles of the industry. Subject to Art. 5 of the Criminal Code of the Russian Federation criminal liability is possible only if there is guilt as a conscious-volitional attitude of a person to the deed and its consequences.

This article is a criminal law axiological study of the protection of electoral rights of citizens of the Russian Federation in modern conditions. The object and subject of research were determined on the basis of the analysis of current Russian legislation. The immediate object of the study are the Articles of the Criminal Code of the Russian Federation determining liability for obstructing the exercise of electoral rights or the work of electoral commissions; for violating the procedure of financing a candidate’s electoral campaign, electoral union, work of an initiative group conducting a referendum, or another group of referendum participants; for falsifying electoral documentation, documentation of a referendum, documentation of an All-Russian vote; for falsifying the vote’s results; for unlawful provision and obtaining of an electoral bulletin, bulletin for voting at a referendum, bulletin for an All-Russian vote. The main methodological instrument of the study is the «protection index» introduced into scientific discourse by representatives of the Ural Law School. In recent years the «protection index» has become widespread both in the general theory of law and in different branches of law, including criminal law. The use of this index lies behind an attempt to show the proportionality of sanctions for crimes against the electoral rights of citizens. The current article determines the methodology of the study, its goals and tasks. The authors suggest supplementing the existing methods with a new electoral protection index, which will allow them to better present the specific features of the subject under research. The diversity of criminal law sanctions for electoral crimes makes the research objectives considerably harder to achieve, but, at the same time, renders them more relevant and valuable from the practical viewpoint because the proportionality of sanctions is a problem not only of the theory of criminal law, but also the practice of determining punishments in criminal cases. Besides, the criminal law norm sanction is viewed not only as an element of the law norm, but also as a part of the criminal law regulation mechanism. The suggested method makes it possible to illustrate the proportionality of the sanctions for electoral crimes in criminal law norms and to formulate suggestions on improving the current legislation.

Purpose. Criminal legislation has the task of protecting the state system and social system, their individual structures and institutions. The peculiarity of the Criminal Code of 1903, regarding these tasks, is that it was adopted in an exceptional and special historical period of time. First of all, this circumstance is associated with the period of time that covered the development of criminal legislation during the 19th century, which was reflected in its system, structure and criminal law norms. Secondly, as noted in the preamble of the Criminal Code of 1903, it is adopted in the context of the ongoing state and social transformations, taking into account the requirements of new decisions. Significant changes related to the formation of criminal law provisions providing for liability for violation of the rules of management, use, maintenance and disposal of transport. It should also be noted that the Criminal Code of 1903 represented and was the basis for the development of criminal legislation of the new century, including criminal liability for transport crimes. Methodology: dialectics, abstraction, analysis, synthesis, deduction, — formal legal method, comparative law method. Conclusions. Firstly, the second half of the nineteenth century is characterized by the active construction of the transport system and its infrastructure; secondly, the need arose to form special governing bodies that were not previously provided for in the structure of government bodies of the Russian Empire; thirdly, the safety of traffic and operation of transport required full legal support for the management of the transport system; fourthly, the organization of transport traffic required the formation of institutions and employees for the training of specialized specialists; fifthly, the task of uninterrupted operation of the transport system and the movement of vehicles predetermined the need for systematic maintenance and repair of vehicles and transport infrastructure, sixthly, points/ stations for the formation of trains, loading/reloading of goods and boarding/transfer of passengers deserved to be formed and provided; seventhly, the need arose to form transport teams, determine for them the place and time of meals, rest and interchangeability, and then, as a necessary component of any activity, the function of monitoring the movement of vehicles, especially their technical equipment, was predetermined in order exclusion of accidents. Scientific and practical relevance. To specify the categories of the Criminal Code of 1903 under consideration in order to determine their meaning and place in the current national criminal legislation and in the science of criminal law. Use the results in the preparation of regulations providing for liability for encroachment on the safety of traffic and operation of vehicles, in a complex modern management system in the field of organization and operation of transport, especially in international and related areas, as well as in the educational process when training specialists in the field law enforcement.

The enactment of Criminal Code (Wetboek van Strafrecht) in Indonesia is based on the 1945 Constitution, Law No. 1 of 1946 and Government Regulation No. 2 of 1945. The existence of these regulations not only gives legitimacy to the implementation of the Criminal Code, but also provides 'boundary signs' in implementing them. This paper aims to examine the limitations of the enactment of the Criminal Code based on various provisions. The limiting signs include: first, the enactment of the Criminal Code is temporary until the Criminal Code is established based on the 1945 Constitution. This means that the Draft Law on the Criminal Code must be ratified immediately. It is a form of carrying out the mandate to renewal of criminal law as stated in the constitution. Second, there is a need to examine the norms of criminal law in the Criminal Code before it is applied (whether the criminal law norms are in accordance with the criteria "does not conflict with the position of the Republic of Indonesia as an independent state or not in conflict with the Constitution"), and third, the application of the articles in the Criminal Code must remain in the Indonesian context.

Topicality and issue of a subject-matter Collision of norms in criminal law is incompleteness of legal provisions concerning collision of norms in Criminal law, despite the fact that such legal provisions have been developed in legal doctrine and recognized in case law. Goal of an article is to summarize and show these legal provisions in order to help readers and law enforcers to discern between multiplicity and aggregation of criminal offences, and collision of norms of the Criminal law.In essence – collision of norms of Special part of Criminal law differs from multiplicity (especially a conceptual aggregation) of criminal offences with a count of criminal offences and bodies of the crime (corpus delicti) corresponding to such offences. In a case of multiplicity two or more separate (unitary) criminal offences correspond to two or more bodies of the crime (corpus delicti) which are set out in Criminal law. Collision of norms of Special part of Criminal law occurs where two or more bodies of the crime (corpus delicti) corresponds to one, separate (unitary) criminal offence.In collision between general and special norm of a Special part of Criminal law, special norm (provision) must be applied.In collision between partial (narrower) and complete (broader) norm of Special part of Criminal law, broader norm (provision) must be applied. If such partial (narrower) norm sets out more severe punishment than a complete (broader) norm, both norms must be applied in accordance with rules of conceptual aggregation.In collision between aggravating and mitigating norms (provisions) mitigating norm must be applied, that is – a norm with a lesser punishment.In collision between mitigating norms (provisions), more mitigating norm must be applied.In collision between aggravating norms, more aggravating norm must be applied, that is – a norm wish sets out more severe punishment.Collision of norms (provisions) in administrative violations law is also decided in accordance the same rules of legal norm collision resolution, despite the fact that Latvian Administrative violations code does not contain relevant legal provisions.

The article considers the rule of law, the rule of criminal law. When studying the norm of criminal law, I rely on the fact that it is a mandatory rule of conduct for failure to commit a criminal offense under the criminal law of the Special Part of the Criminal Code of Ukraine, organically related orders, compliance with which is ensured by coercive potential criminal law influence. The norm of criminal law consists of: 1) conditions for the implementation of criminal law (hypothesis); 2) criminal law normative – obligatory legal requirement for non-commission of an act provided by the instruction of the Special Part of the Criminal Code (disposition); 3) sanction for non-compliance with these legal requirements. Mandatory requirements (rules) contained in the articles of the General and Special Parts of the Criminal Code and organically supplement (clarify) the content of the relevant structural part of the criminal law or contain procedural issues for its application and implementation. The article analyzes the hypothetical, dispositional and sanctioning dictates of the draft Criminal Code of Ukraine. It is concluded that the draft Criminal Code of Ukraine does not significantly change the approaches to understanding the rules of criminal law as a system of established (sanctioned) by the Verkhovna Rada of Ukraine and legally secured universally binding criminal law norms and organically related commands. project composition, their rights and responsibilities, tasks of the Criminal Code, legal facts, etc.), compliance with which is ensured by the coercive potential of the means of criminal law influence. The considered norm in a broad sense provides for a three-tier structure and is fixed in the criminal law. At the same time, the structural elements of the norm of criminal law in the «broad» sense are placed in the articles of both the General and Special parts of the draft Criminal Code of Ukraine. Further research should focus on understanding the concept and structure of criminal law, as it will help both the legislator and the court. Proper interpretation of the concept and structure of criminal law encourages parliamentarians to more fully and accurately reproduce in the text of the Criminal Code of Ukraine all the necessary elements of criminal law in view of the purpose of its development and adoption, and the judge, investigating judge (court) – to find, compare and understand these elements, to establish their interrelations and the legal will of the legislator fixed in this norm, and also to provide its reliable realization according to a letter of the law. This knowledge allows members of society to navigate the system of criminal law obligations for their implementation.

In Indonesian, the main source of criminal law is in the Criminal Code and other Criminal laws and regulation. However, it is possible that customary law is considered as the source of law with certain limitations. This study aims to determine and analyze application of criminal sanctions to indigenous people and relevance of the legality of criminal law to customary law sanctions. The methodology used is juridical normative research method using a statutory and conceptual approach. With this research, the finding or conclusions are obtained that application of sanctions to customary law communities is recognized by several communities, and they believe that the customary court is a legal system that is still used by some indigenous peoples, and stipulation of customary criminal law sanctions is often not in accordance with the principle of legality which based on the principle and norms of criminal law as stipulated in the revisions of Article 1 Paragraph (1) of the Criminal Code. Therefore, in conclusion, the application of legality principle in imposition of criminal sanction to customary society still benchmark the customary law within the society itself.

This article focuses on the resolution of issues and difficulties legal professionals encounter when qualifying criminal acts under Item e.1 of Part 2 of Article 105 of the Criminal Code of the Russian Federation (Item e.1). The issues and difficulties appeared when the 1996 Criminal Code entered into force and still exist. They are associated with the absence of a legal definition of blood feud in the text of the Criminal Code and other federal statutes, and also with the fact that Decision No. 1 of the Plenum of the Supreme Court of the Russian Federation, On Judicial Practice in Murder Cases, of 27 January 1999, both in the previous and in the current versions, does not contain any comments and clarifications on the characteristics of Item e.1. The greatest difficulties in investigative and judicial practice appear when determining the subject of the given crime. For a long time, the question of what kind of subject of the crime - general or special - is the subject of the crime envisaged in Item e.1 (formerly Item k of Article 102 of the Criminal Code of the RSFSR) continues to be controversial and open in the Russian criminal law theory. The author of the article has made a comprehensive critical analysis of the points of view, opinions, and approaches available in the criminal law doctrine regarding the definition of the type of subject in Item e.1 - murder motivated by blood feud; this has an important qualification value and directly affects the legal assessment of the criminal act provided for in this item. The article presents and examines the doctrinal provisions, court decisions, and norms of criminal law in terms of determining the type of subject of murder motivated by blood feud. The author proposed, explained, and scientifically substantiated a uniform approach to the definition of the subject in Item e.1; this approach can order the Russian law enforcement practice and resolve all the problems. The author also formulated conclusions supported by arguments and reasons. The conclusions confirm the correctness of the scientific and legal approach, according to which the subject of the crime envisaged in Item e.1 is special and should belong to a group of population which cultivates the custom of blood feud.

The purpose of the study is to identify the problems of the effectiveness of the use of such a means of legal technique as fiction in the current criminal legislation and to offer recommendations for its improvement. The article briefly updates the essence and concept of fiction in criminal law, defines the definition of its effectiveness and examines the shortcomings of certain norms of criminal legislation formulated through fiction, namely: Part 4 of Article 18, Part 4 of Article 2041 and Part 4 of Article 2911 of the Criminal Code of the Russian Federation. Conclusions. The conducted research allowed us to formulate the wording of Part 4 of Article 18 of the Criminal Code of the Russian Federation, taking into account the operational situation and trends in combating crime, as well as to prove the redundancy and legal and technical insolvency of Part 4 of Article 2041 and Part 4 of Article 2911 of the Criminal Code of the Russian Federation. The constructed proposals are aimed at increasing the effectiveness of fiction in the current criminal legislation. In addition, there is currently an urgent research need for the formulation of universal rules for the use of fiction, aimed at improving its effectiveness in criminal law.

Transplant tourism is a negative consequence of the globalization of society. Trafficking in human organs has reached all countries and threatens their security. This international problem requires a response from states, their legislative institutions and international organizations. The purpose of this article is a comprehensive study and systematization of the norms of international law and national legislation, which determine the legal regime of the circulation of human anatomical materials, as well as the identification of shortcomings in the criminal-legal protection of the field of transplantology in Ukraine and the search for ways to improve domestic criminal legislation in the context of the European integration of our country. Various research methods were used to achieve this goal. In particular, the elements and features of the composition of criminal offenses of the current legislation and the relevant novels were analysed using the dialectical method of cognition. Thanks to the use of the historical method, a number of international legal acts have been established that prohibit the trade in human organs. The dogmatic method made it possible to reveal the actual content of legal norms that regulate the circulation of human anatomical materials. The system-structural method was used during the study of normative legal acts of a universal, regional and national nature. Using the comparative legal method, norms of international law and national legislation of Ukraine in the field of transplantology were compared. The paper proves that the most important international legal standard dedicated to the fight against the illegal circulation of human anatomical materials is the Council of Europe Convention against Trafficking in Organs, which provides for criminal law prohibitions that must be implemented by the participating states in their national legislation. All conventional prohibitions are combined into four related groups and compared with criminal offenses provided for by the Criminal Code of Ukraine. Novels of the draft criminal law, which provide for responsibility for illegal transplantation, trafficking in human organs and other illegal circulation of human anatomical materials, were also studied. A comprehensive analysis of the legal regime in the field of transplantology gave grounds for the conclusion of the need to ratify the Council of Europe Convention against trafficking in human organs on the way to the European integration of Ukraine. The research also established that some conventional prohibitions in the field of transplantology are at the same time types of corruption offenses, which are provided for in the current Criminal Code. This indicates the further need for a detailed analysis of such norms, establishing their features, interrelationship and correlation with the relevant provisions of the legislation of Ukraine.

The aim of the research is to address the problem of regulation and implementation of criminal responsibility for illegal migration organisation and to determine, on this basis, the course of action to enhance Article 3221 of the Criminal Code of the Russian Federation containing the corpus delicti and its application in practice. The problem is the absence of the necessary coherence of Article 3221 of the Criminal Code of the Russian Federation with the international law provisions aimed at illegal migration organisation countering. Alongside this challenge, there is another one: of inadequate legal certainty of this criminal legal norm disposition, which complicates its uniform interpretation and further practical application in allowing for competition with the articles of the Code of Administrative Offences of the Russian Federation, establishing liability for related criminal acts. The general dialectical method of enquiry, general scientific and specific scientific methods, including the comparative legal method, the method of statistical analysis and the method of legal modelling are used in this article to address the issue. As a result of the conducted research, the authors conclude that the existing approach to improving the legislative framework and practice of countering the organisation of illegal migration in the Russian Federation needs to be changed. More specifically, given the need to harmonise Russian and international legislation in this field, the authors propose to complement the mental element of the corpus delicti of the irregular migration organisation with an indication of the mandatory aim in the form of the perpetrator's desire to obtain, directly or indirectly, financial or other material benefit. As a result, this criminal law prohibition will be aligned with the provisions of Paragraph 1 and Article 6 (2)(c) of the Protocol against the Smuggling of Migrants by Land, Sea and Air. Furthermore, this research substantiates the need to specify the disposition of Article 3221 of the Criminal Code of the Russian Federation in terms of the content of actions that comprise the illegal migration organisation actus reus and to mark which specific types of migration legislation violations constitute the crime, as well as to explicitly indicate that this criminal law norm shall be applied, if the act is not covered by Art. 322, Art. 3222 or Art. 3223 of the RF Criminal Code. Based on administrative and criminal legislation analysis, the authors argue for the deletion of criminal liability for a single violation of migration legislation, including for organizing a foreign citizen's or a stateless person's irregular migration committed by a person who is not subject to an administrative penalty for a misdemeanor in the migration field. Thus, the authors underline the need of systematic cross-sectoral changes in the current migration legislation.