The dissertation presents a theoretical generalization and a new solution to a scientific problem that consists in explaining the concept of malice, and on this basis proposes to improve the Criminal Code of Ukraine and practice of its application in the part of the regulation of responsibility for crimes, which are a sign of malice.
Existing studies on the concept of "malice" have been proven to be fragmentary, ie only partially related to the concept being investigated, and are generally related to the interpretation of this feature in relation to the composition of a particular crime. In none of the studies analyzed, malice was not comprehensively considered as a cross-cutting criminal concept, but was investigated, as a rule, from one angle or another, depending on the composition of the particular crime, where it is provided as a constructive feature. None of the analyzed authors offered their own definition of "malice" as a cross-cutting feature provided by the Criminal Code of Ukraine, as a whole, and did not provide clear and unambiguous suggestions for its interpretation.
The notion of "malice" in domestic criminal law means intentionally steadily directing a person to commit homogeneous acts that do not individually constitute a high level of public danger and are not criminal, but in the case of repeated (systematic) committing them in their totality when the whole act becomes a crime.
A historical and legal study of the concept of "malice" in the memorials of domestic criminal legislation was conducted, which allowed to distinguish and characterize nine historical periods of its genesis and regulation. It was stated that the "malice" in the criminal legislation of the Soviet Union was regulated as an evaluation trait that could be extended to interpretation and served as an effective instrument for the unjustified prosecution of a wide range of persons, depending on the social and political situation. Therefore, the placement of "malice" in the articles of the current Criminal Code of Ukraine should be considered a tribute to the Soviet period of time.
It is substantiated the opinion that when qualifying an act under Art. 391 of the Criminal Code of Ukraine should take into account that violation of the requirements of the regime in the form of disobedience acquires signs of "malice" in the case of repeatedly violations, for which the person was subjected to the disciplinary penalties listed in the disposition of the aforementioned article and the very commission of the latter, if not expired, to prosecute a person under that article. The main thing, when declaring disobedience “malicious”, should be the fact that the convicted person was previously subjected to a punishment in the form of transfer to a chamber type (solitary confinement) or such a person was transferred to a more severe punishment regime, rather than a certain amount previous regime violations.
It is proved that the most optimal way to improve the articles of the Criminal Code of Ukraine, which contain the concept of "malice" will be a complete exclusion from their dispositions of the considered criminal-legal category, such that due to its emotionality and lack of a clear legal definition only creates unnecessary difficulties in law enforcement. Art. 389-2 and 391 in general, it is expedient to exclude from the text of the Criminal Code of Ukraine, as such, which do not correspond to the grounds of criminalization, as well as to such a principle of criminal law as the saving of criminal repression.
The rules of qualification of individual crimes, the sign of the compositions of which are "malice", are formulated. It is stated that the current state of solving the problems of qualifying crimes as a sign of "malice" is not to be considered as adequate because the proportion of proposals for their use are contradictory or receive ambiguous assessments from both theorists and practitioners, resulting in law enforcement authorities make mistakes in applying such rules.
A study of post-Soviet legislation shows that there is no single concept or interpretation of "malice". The terms "malicious" in the General part of the Criminal Code are used mainly in the construction of norms with criminal responsibility. The regulation of such liability should be placed not in the General part of the Criminal Code, but in the criminal law. It becomes a criminal liability only if certain acts that violate the established procedure and conditions of execution of penalties are included as separate articles in the Special Part of the Criminal Code, as is currently regulated in the Criminal Code of Ukraine, the Penal Code of Estonia and the Criminal Code of the Republic of Lithuania. It is advisable to draw on the experience of the legislators of the Kyrgyz Republic and the Republic of Uzbekistan in building the norms of the Special Part of the Criminal Code without using "malice".
