V.I. Lutchyn Classification of criminal offenses under the criminal law of Ukraine and of the Republic of Poland: comparative analysis. – Qualification scientific work, manuscript copyright.
Thesis for the degree of Doctor of Philosophy in specialty 081 – Law, Ivan Franko National University of Lviv Ministry of Education and Science of Ukraine, Lviv State University of Internal Affairs Ministry of Internal Affairs of Ukraine, Lviv, 2021.
The thesis is devoted to complex research and comparative analysis of the problems of classification of criminal offenses under the criminal law of Ukraine and of the Republic of Poland.
In the framework of the thesis, the following definition was formed: “Classification of criminal offenses is an objective, clear division of criminal offenses into mutually exclusive groups according to certain criteria that meet the objectives of the classification, are comprehensive and reflect the patterns of development of criminal offenses institution.” The proposed definition is suitable for both criminal law doctrines of Ukraine and the Republic of Poland as it corresponds to the doctrinal and legislative positions that exist in Ukraine and in the Republic of Poland. Additionally, the content of its key features has been revealed.
It has been established that the object of classification of criminal offenses under the criminal laws of Ukraine and of the Republic of Poland differs; namely, the difference lies in its substantive nature, because according to the Criminal Code of the Republic of Poland, criminal offense is considered socially harmful, whereas in the Criminal Code of Ukraine, it is considered as socially dangerous.
It has been proposed to distinguish two types of classification of criminal offenses – the legislative one and the doctrinal one. Legislative classification provides for the division of criminal offenses, which is enshrined in the current criminal law of the state. The doctrinal classification is carried out on the basis of elements and content of a criminal offense, as well as on the basis of other criteria which are reflected in the scientific literature. The doctrinal classification is inextricably linked with the legislative classification and acts as a supplement to the first, which is the main one. It provides the possibility to clarify the legal and social content of the relevant criminal offenses, and to deepen our understanding of their relationship.
A separate section of the thesis, which identifies the classification groups of criminal offenses depending on the features and elements of the criminal offense, was devoted to main criteria of the doctrinal classification of criminal offenses under the criminal law of Ukraine and of the Republic of Poland.
As result of the study of the criminal offense object as one of the main criteria of doctrinal classification in the criminal law of Ukraine and of the Republic of Poland, it is possible to claim about the existence of two different historically established concepts of its understanding and its essence. Thus, in the Polish criminal law doctrine there is a concept that the object of a criminal offense should be considered a “legal good”, which derives from the so-called “public good” and becomes legitimate as a result of its protection by criminal law. As for the Ukrainian legal doctrine, the set concept is that the object of a criminal offense should be understood as “social relations”, which are under the protection of the criminal law.
Due to the classification of criminal offenses by generic object, it has been established that it makes the basis for the construction of the Main Part of the Criminal Code of Ukraine and the Criminal Code of the Republic of Poland. By it, the criminal offenses are classified into the relevant sections. The Criminal Code of the Republic of Poland consists of the three following parts: General, Special and Military. Therefore, in Polish law, the generic object also serves to systematize criminal offenses in the Military part into appropriate sections. Thus, according to the generic object in the Special part of the Criminal Code of the Republic of Poland, twenty-one groups of criminal offenses and six groups in the Military part can be distinguished. As for the Special part of the Criminal Code of Ukraine, it can be divided into twenty groups of criminal offenses. An important difference is that, in the criminal law of the Republic of Poland, with the help of a generic object, treasury criminal offenses are singled out, and for them the criminal liability is established in the Treasury Code of the Republic of Poland (Kodeks karny skarbowy); they are the only type of criminal offenses, the criminal liability for which is not established in the Criminal Code of the Republic of Poland.
Having classified criminal offenses on the basis of the objective side of the criminal offense, it has been established that the only significant difference is that the subject of a criminal offense in the Polish criminal law doctrine refers to the optional features of the objective side of the criminal offense; concerning other features, they are common and distinguished by both Polish and Ukrainian scholars.
As a result of the comparative classification of criminal offenses on the basis of the age of the person which has to be reached for criminal responsibility for their commission, it has been established that the Criminal Code of the Republic of Poland indicates a higher age threshold from which a person may be criminally liable than the Criminal Code of Ukraine. Thus, in the criminal law of the Republic of Poland, the general age from which criminal liability may arise is 17 years, in contrast to the Ukrainian criminal law, where such age threshold is set at 16 years. The special age of a person under the Criminal Code of the Republic of Poland is 15 years, while the Criminal Code of Ukraine stipulates 14 years. Additionally, it has been established that the Criminal Code of the Republic of Poland does not provide for forms of complicity, but only establishes its types, which coincide with the types of complicity provided for in the Criminal Code of Ukraine.
As a result of the comparative classification of criminal offenses on the basis of the subjective side of the criminal offense, it has been established that the Criminal Code of the Republic of Poland provides in Art. 9 only the concepts of form of guilt, intent and negligence. However, it does not mention their types such as direct and indirect intent, criminally reckless misconduct and negligence. As for the criminal law doctrine of the Republic of Poland, all types of guilt are distinguished by all scholars. Unlike the Criminal Code of the Republic of Poland, the criminal law of Ukraine in Art. 23 contains the concept of guilt, from which its following forms are distinguished: intent and negligence.
It has been established that the legislative classification is contained in Art. 7 § 1 of the Criminal Code of the Republic of Poland. Thus, Art. 7 § 1 of the Criminal Code of the Republic of Poland provides that criminal offenses (przestępstwa) are divided into crime (zbrodnie) and misdemeanor (występek). With regard to Ukrainian legislation, Article 12 of the Criminal Code of Ukraine stipulates the classification of criminal offenses into crimes and misdemeanors. In addition, in Part 3 of Art. 12 of the Criminal Code of Ukraine in the amended version, the classification provides minor, serious and major crimes.
The study examines the formal and substantive criteria for the division of criminal offenses, which are distinguished by both Ukrainian and Polish scholars. The formal criterion of division in the criminal law of the Republic of Poland is determined by certain elements, such as the legal consequence and the condition provided by criminal law. As for the legal consequence, in this case we are talking about the type and term of punishment provided for in the sanctions of the relevant criminal regulation. A legal condition is a form of guilt, because according to Article 8 of the Criminal Code of the Republic of Poland, a crime can be committed only intentionally, and a misdemeanor, both intentionally and negligently. With regard to Ukrainian criminal law, the formal criterion for the division of a criminal offense consists only of a legal consequence, i.e. it is a question of the type and term of punishment provided for in the sanction of the relevant criminal regulation. As a result, we have proposed and substantiated a new version of Article 12 of the Criminal Code of Ukraine, which takes into account the form of guilt in the classification of criminal offenses. The draft of the article is provided in the Conclusions.
Due to the analysis of the provisions of the Criminal Code of Ukraine, two following types of misdemeanors have been identified: mixed and kindred. A mixed criminal offense is of one type, the main composition of which is a misdemeanor, and qualified (if any, and especially qualified) composition is a crime. Kindred is a criminal offense of one type, in which the main and qualified (if any, and especially qualified) composition is a misdemeanor or a crime.
As for the substantive criterion, it is the division of criminal offenses into crimes and misdemeanors depending on the severity of the criminal offense, which is determined in the criminal law of Ukraine by the degree of public danger of the act, whereas for the criminal law of the Republic of Poland it is determined by the degree of public harmfulness of the act. Circumstances and signs influencing the gravity of a criminal offense both in Ukraine and in the Republic of Poland have been highlighted. Additionally, the concept of substantive criterion of classification of criminal offenses into misdemeanors and crimes has been proposed and substantiated; the concept is based on philosophical provisions on the transition from quantitative to qualitative indicators. This means that when the required limit of the quantitative criterion is possible, a transition to a new quality is possible, speaking of criminal law, when the required degree of public danger of a criminal offense is achieved, we get a new category of its severity (transition from the misdemeanor to the crime group).
The issue of cases of “minor gravity” of criminal offenses provided for in the Criminal Code of the Republic of Poland is considered. As a result, the position is supported that this is a kind of privileged corpus of a misdemeanor, which is created by adding to the main structure of the phrase “less grave”.
The classification of crimes into minor, serious and major crimes in the criminal law of Ukraine has been considered. The signs that affect the severity of crimes were provided on the example of Section II of the Criminal Code of Ukraine “Criminal offenses against life and health”.
It has been established that the classification of criminal offenses is of intersectoral significance both in Ukraine and in the Republic of Poland.
Keywords: criminal offense, crime, misdemeanor, classification, legislative classification, legislative classification, formal criterion, substantive criterion, criminal offense object, objective side of criminal offense, subject of criminal offense, subjective side of criminal offense.
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