| Abstrakt: |
The article analyses the actual composition of the circumstances which exclude criminal unlawfulness/illegality of an act provided for in the current Criminal Code of Ukraine (performance of the duty to protect the Motherland, independence and territorial integrity of Ukraine - Article 43-1) and in the draft Criminal Code of Ukraine (protection of Ukraine from armed aggression - Article 2.9.3 and combat immunity - Article 2.9.11). Based on the analysis of scientific literature, the author identifies the main approaches of scholars to the formulation of the circumstance excluding criminal unlawfulness of an act under Article 43-1 of the Criminal Code of Ukraine and traces the ways to eliminate them in the text of two relevant circumstances in Articles 2.9.3 and 2.9.11 of the draft Criminal Code of Ukraine. It is concluded that the factual composition of these two circumstances, despite the fact that they have the same legal nature, since they arise from the duty to defend the Motherland, independence and territorial integrity of Ukraine, have a different factual composition. In particular, these circumstances differ significantly both in terms of primary and secondary facts and in terms of the conditions accompanying the secondary (main) fact. It is stated that this approach cannot be considered justified. It is concluded that the value of understanding the legal essence of circumstances excluding the unlawfulness of an act through the prism of their factual composition is precisely to develop a typical model of such circumstances which would include the same number of facts and conditions accompanying them with a variable component of some of them. In this case, variability may occur in relation to the conditions accompanying the secondary (primary) fact. As for the facts themselves - primary (non-basic) and secondary (basic) - their content should be the same for both the defence of Ukraine against armed aggression (Article 2.9.3 of the draft Criminal Code of Ukraine) and combat immunity (Article 2.9.11 of the draft Criminal Code of Ukraine). [ABSTRACT FROM AUTHOR] |
