Thesis for a Candidate Degree in Law, specialty 12.00.08 – Criminal Law and Criminology; Criminal Enforcement law. – Higher Educational Institution «National Academy of Management», Kyiv, 2018.
The dissertation is devoted to the complex development of the theoretical provisions of the criminal-legal description of a crime of illegal destruction of election documents or referendum documents.
In this scientific thesis, the sources and genesis of criminal responsibility for the illegal destruction of election documents or referendum documents are investigated. The peculiarities of the historical development of the legislation of Ukrainian lands in terms of responsibility for the illegal destruction of election documents or referendum documents since the XI century are revealed.
The notion of a crime of illegal destruction of election documents or referendum documents is formulated, as well as the social and legal conditionality of this criminal-legal prohibition is investigated. The following factors of the criminal prohibition stipulated in the Article 158-2 of the Criminal Code are clarified: socio-criminological; constitutional adequacy; normative-legal; ethical; cultural-historical; international legal, – and their characteristics are carried out. These factors convince of the need to preserve the mentioned criminal prohibition in criminal law. The author adheres to a position which duly justifies that the analysis of the preconditions for the criminalization of an act provided for in Article 158-2 Criminal Code belongs to the field of criminal law research.
By revealing the criminal-legal characteristic of a crime of illegal destruction of election documents or referendum documents, the author carries out a comprehensive analysis of objective side (actus reus) of a crime of illegal destruction of election documents or referendum documents, analyzes the generic and direct objects of this crime, finds out a target of a crime in the form of destruction or damage of the election documentation. Grounding on the research the author proves that the objective side (actus reus) of a crime, provided for in Part 1, Article 158-2 of the Criminal Code is characterized as an action, as well as an inactivity, crime scene and time of commission of a crime as compulsory elements of the objective side (actus reus) of a crime, stipulated by Article 158-2 of the Criminal Code. It is also found that the crime scene is the state archival institutions and the Central Electoral Commission, and time of the commission of a crime is a period after the holding of elections or referendum beyond the established time limits of storage of election documents or referendum documents.
The work sufficiently investigates the subjective elements of a crime of illegal destruction of election documents or documents of the referendum. The author argues that the perpetrator of crime provided for in Part 1, Article 158-2 of the Criminal Code, is a general one. The dissertation reveals the subjective elements of this type of crime. In addition, the author argues that the intention in this crime can only be direct because this crime refers to so-called formally defined crimes. The intellectual moment of the intent upon committing a crime of illegal destruction of election documents or referendum documents includes awareness of the socially dangerous nature of its act (actions or inactivity). The author argues that such awareness must include two components: first, the perception of the actual content and nature of the event that forms the act, as an act of will; and, secondly, the perception of social utility or conversely the harmfulness of person’s behavior for relations protected by the investigated article of the Criminal Code. Volitional moment of an intention is characterized by the desire to commit such actions provided for in Part 1 or 2, Article 158-2 of the Criminal Code. Further, in the dissertation, the qualifying attributes of a crime are investigated.
In the course of the delimitation of a crime of illegal destruction of election documents or documents of a referendum and related crimes the distinctive features of the mentioned crime are revealed. The comparative legal analysis of a crime of illegal destruction of election documents or documents of a referendum according to the legislation of Ukraine and the legislation of some foreign countries is provided.
Proposals for improvement of the provisions of Article 158-2 of the Criminal Code and their practical application are suggested.
