The thesis is the first systematic and complex criminal research, which is devoted to criminal liability for civil draft evasion during a special period or in the case of targeted mobilization. The research performed by studying the criminal legislation development history on such an act and its prototypes and the international and foreign experience, considering actual problems of crime qualification and punishment, as well as the substantiation of proposals concerning the improvement of the current criminal legislation of Ukraine and application of its norms.
The evolution of Ukrainian legislation on criminal liability for draft evasion at emergency has been researched. Mandatory characteristics of the «Civil defense service» concept have been distinguished. The concept of «doing the Civil defense service», besides the characteristics of the Civil defense service, is proven to have the features as follows: h) initial time: from the moment of enrolment (assignment of a special rank and appointment to a position with mandatory oath taking ( for the first-time enrolled persons); i) functional and time: which is distinguished by the time of such service; j) final time: the last day is the day of exclusion from the State Emergency Service.
The thesis represents the generic object of civil draft evasion during a special period or in the case of targeted mobilization as a social relationship providing for the defense capability of Ukraine, Civil defense, security of information resources and the border area. The specific object of civil draft evasion during a special period or in the case of targeted mobilization (Article 336-1 of the Criminal Code) is determined as social relations providing for defense capability of Ukraine (staffing of military formations) and its Civil defense during a special period and target mobilization. At that, the direct object of the analysed crime is the social relations providing for the procedure of Civil defense service during a special period (except for the restoration period) or in the case of targeted mobilization.
The objective part of this crime has been noted to be characterized by (a) a socially dangerous action of Civil defense draft evasion ‒ this is the passive behaviour of a person («pure» inaction) or the combined active and passive behaviour («mixed» inaction), which is the impairment of legal obligations thereof, if the person had a real opportunity to do that (as per his or her personal qualities and circumstances); (b) alternative combined (complex) features, which are the «special period (but for the recovery period)» ‒ the time, the situation and, in certain cases, the site of the crime, and «targeted mobilization» ‒ the time, situation and the site of Civil defense draft evasion.
The types of a special period have been classified and the expediency of the «(but for the recovery period)» sentence exclusion from Art. 336-1 of the Criminal Code has been substantiated.
The peculiarity of target mobilization, associated with certain types of emergencies at the state level and with appropriate measures to ensure compliance through execution by Civil defense forces of their functions in such conditions has been emphasized. At that, these are particularly grave emergencies occurring only in peacetime.
The subject of Civil draft evasion in a special period (but for the recovery period) or in the case of targeted mobilization, which is considered to be special, has been determined. The varieties of such a special subject of crime include: a) the privates and the command staff of this service who are assigned to such positions under the contract; b) persons contracted to an educational institution of Civil defense; c) persons contracted to the reserve of Civil defense service, characterized by these common and additional features of a special subject of crime.
The crime state of mind under Art. 336-1 of the Criminal Code, with an analysis of the intent, its orientation, and other indicators has been determined. The punishment has been considered, and the expediency of its improvement has been substantiated, in particular, the introduction of an alternative basic punishment in the form of personal restraint.
The features for differentiation of crimes under Art. 336-1 of the Criminal Code and Art. 335‒337 of the Criminal Code and Parts 3, 4 of Art. 402, 409 of the Criminal Code have been distinguished. In particular, a socially dangerous act characterized by the different content of such a duty, in particular, its dependence on a particular type of the service and various ways of failure to perform a certain type of the official duty; crime time, site and situation, which characterize the conditions of a special period, the target mobilization, the combat situation; types of special subjects of these crimes. Considering the results of the scientific research, the expediency of improving the name of section XIV of its Special Part and the wording of Art. 336-1 of the CC.
