The thesis is devoted to the legal characteristic of criminal liability for official negligence. Based on the study of the genesis of criminal liability for official negligence, the influence of the political regime on the formation, development and positioning of crimes in the official sphere as a whole and official negligence in particular, has been traced the grounds for the criminalization of this act and the social conditionality the existence of Art. 367 of the Criminal Code of Ukraine have been analyzed. It is determined that among all the factors that determine criminal liability for official negligence the decisive ones are: the social danger of this act, its relative prevalence, constitutional adequacy, international legal permissibility and the need for criminalization. It is established that the social conditionality of the existence of Art. 367 of the Criminal Code of Ukraine is confirmed by its social benefits, systemic legal consistency, the ability to combat the action through criminal legislation means and the impossibility of fighting through others, the availability of resources for criminal prosecution and the proportionality of the positive and negative consequences of the ban. In the context of the grounds for criminal liability, objective and subjective features of official negligence are considered. When considering the objective side of official negligence, has been for the uniform application of the law it has been proposed leave in the disposition of Art. 367 of the Criminal Code of Ukraine the wording "failure to perform or improper performance of duties." In the context of analyzing the socially dangerous consequences of official negligence it has been proved that causing intangible harm is socially dangerous, it meets other criteria of criminalization, therefore it is necessary to return to the previous wording of paragraphs 3 and 4 of the note to Art. 364 of the Criminal Code of Ukraine, which gave every reason to assert that substantial harm and socially dangerous consequences can have a tangible and intangible nature.
It has been subs proved that inaction can cause socially dangerous consequences. If official negligence is committed in the form of an action, the causal relationship may be direct or conditioning, in cases where the form of the act is inaction, the causal relationship can only have a conditioned character.
When characterizing the subjective signs of official negligence, it was concluded that in the overwhelming majority of cases, official negligence is positioned by practitioners as a careless / reckless crime. However, taking into account the current legislation, there are grounds for asserting the possibility of committing this crime with indirect intent.
When considering the subject of official negligence, it is noted that he is special - an official of public law and an official of private law. It is substantiated that given the significance of the powers concentrated in the hands of persons engaged in professional activities related to the provision of public services, in the event of non-fulfillment or careless performance of their duties, substantial harm to the rights, freedoms and interests of individual citizens, state or public interests or interests of individual legal entities. Therefore, it is advisable to determine the auditor, appraiser, expert, notary, arbitration manager, independent mediator, member of labor arbitration and arbitrator as the subject of official negligence by amending the name and disposition of Art. 367 of the Criminal Code.
In the context of the mechanism of criminal law regulation, it is determined the criminal law measures applied to persons who have committed official negligence. It is substantiated that, taking into account the specifics of the subject of the crime, provided for by Art. 367 of the Criminal Code of Ukraine, features of its objective and subjective signs one of the most effective ways to achieve the goal of special prevention in relation to persons who have committed official negligence, is the use of such penalties as fines, deprivation of the right to hold certain positions or engage in certain activities, and public works.
There is a large percentage of the application to persons who have committed a crime under p. 2 of Art. 367 of the Criminal Code of Ukraine, exemption from criminal punishment with probation. It is proposed to avoid probable impunity to implement probation programs. For this proposed changes in p. 2 of Art. 76 of the Criminal Code of Ukraine, by means of a prediction alongside such an additional measure as the use of probation programs, an indication that within the framework of probationary programs, it is possible to use unpaid work in favor of society.
