Karpova N. The offences against justice, which are related to the limitation of the right of a person to be defended

Українська версія

Thesis for the degree of Candidate of Sciences (CSc)

State registration number

0418U002627

Applicant for

Specialization

  • 12.00.08 - Кримінальне право та кримінологія; кримінально-виконавче право

12-06-2018

Specialized Academic Board

К 26.122.01

The Academy of Advocacy of Ukraine

Essay

The dissertation is devoted to the study of the criminal-legal characteristic of the offences against justice, which are related to the limitation of the right of a person to be defended.The generic and the specific objects of the elements essential to the offences against justice related to the limitation of the right of a person to be defended are formulated.The notions of "justice", "activity contributing to the administration of justice", "rights to be defended",“a person who has the right to be defended” in accordance with the current legislation of Ukraine are defined. A complete list of persons who have the right to be defended is offered and therefore may be victims of an offence, which is provided by the article 374 of the Criminal Code of Ukraine is formulated. The improved list of subjects of violation of the right of a person to be defended is proposed.The point of view that the offense, which is provided by the Article 374 of the Criminal Code of Ukraine, is a special type of the misfeasance in office of the officers of the law and the officers of court is supported. The offence which is provided by the article 374 of the Criminal Code of Ukraine is compared with a breach of disciplinary, which is provided by Law of Ukraine "About the Judicial System and Status of Judges", a collision is revealed, and the ways of its elimination are proposed. The EU legislation regulating the observance of the right of a person to be defended is analyzed. The definitions of the notions "defender", "function of defense", "the defenders’ lawful activity of legal assistance" are suggested. A complete list of the victims of the offences, which are provided by the articles 398, 399, 400 of the Criminal Code of Ukraine is proposed. It is proposed to determine the nature of the criminal actions of an official who abuse his office while interfering into the defenders’ or the representatives’ activity, as "actions committed by an official by abusing his office."It is proved that the criminal-law norm, which is provided by the article 397 of the Criminal Code of Ukraine, correlates with the criminal-law norms, which are provided by the articles 398, 399, 400 of the Criminal Code of Ukraine, as general with special ones, excluding the qualification of these offences in cumulative by the article 397 of the Criminal Code of Ukraine. Therefore, the improvement of the disposition of the article 397 of the Criminal Code of Ukraine is proposed by adding to it the words "besides to those provided by other articles of the Criminal Code". Тhe subsystem of the offenses against justice, related to the limitation of the right of a person to be defended is proposed: the articles 374, 397, 398, 399, 400 of the Criminal Code of Ukraine have one common specific object, the article 374 has a main direct object, which belongs only to it, the articles 397, 398, 399, 400 have a common main direct object, the articles 398, 399, 400 differ from the article 397 due to the presence of additional objects. It is proved that the offences, provided by the articles 398, 399 of the Criminal Code of Ukraine are the compound offences, whereas the offence, which is provided by the article 400 of the Criminal Code of Ukraine is the polyobjective, but not a compound offence. The usefulness of raising the age of criminal responsibility to the general - 16 years for causing bodily injuries of moderate severity, qualified by part 2 of the article 398 of the Criminal Code of Ukraine and the commission of offences provided by part 3 of the article 398 of the Criminal Code of Ukraine, part 2 and part 3 of the article 399 of the Criminal Code of Ukraine. In this regard, it is proposed to exclude part 2 of the article 398 of the Criminal Code of Ukraine, part 3 of the article 398 of the Criminal Code of Ukraine part 2 of the article 399 of the Criminal Code of Ukraine, part 3 of the article 399 of the Criminal Code of Ukraine from the list of offences in part 2 of the article 22 of the Criminal Code of Ukraine defining the criminal liability of a person who committed offences aged from fourteen to sixteen. The notion "death of people" in the part 3 of the article 399 of the Criminal Code of Ukraine is analyzed and its specification is proposed. It is proved that the notion "encroachment on life" in the article 400 of the Criminal Code of Ukraine is a special legal construction that does not coincide in its scope with the notion "murder"

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