Derkach V. Criminal liability for violation of the procedure for entering and leaving the temporarily occupied territory of Ukraine

In the dissertation the complex scientific task consisting in definition of the criminal-legal characteristic of elements and signs of structure of the criminal offense provided by Art. 332-1 of the Criminal Code of Ukraine, and the establishment of the absence of social conditionality of criminal liability for violation of the procedure for entry into and exit from the temporarily occupied territory of Ukraine. In particular, for the first time on the basis of studying the materials of law enforcement practice, foreign experience of criminal law protection of state borders, especially those countries whose parts were or are occupied, the expediency of decriminalization of entry into and exit from the temporarily occupied territory was proved as a crime. Art. 332-1 of the Criminal Code of Ukraine. The expediency of applying the method of analogy in criminal law science in the case when the study of a new criminal law phenomenon, concept or category requires to investigate similar in content already established criminal law (Article 332-1 of the Criminal Code of Ukraine "Violation of order in ' driving to and leaving the temporarily occupied territory ”is unique, and therefore it was studied in conjunction with the provisions of criminal law aimed at protecting state borders as a whole). The position of the science of criminal law on the preliminary wrong decision of the legislator in the context of constant attempts to solve acute socio-economic problems by amending the Criminal Code of Ukraine has been improved. A doctrinal provision has been developed that if the objective aspects of an administrative and criminal offense coincide, it gives the law enforcer excessive powers to independently attribute each violation of the order of entry into and exit from the temporarily occupied territory to either an administrative or criminal offense. as the purpose of harming the interests of the state is too broad a concept and in practice concerns mainly the transport or carrying of foodstuffs. It has been further argued that if a study of the grounds and principles of criminalization of any criminal offense reveals that most of them do not comply, ie are not socially conditioned, such an article of criminal law should be excluded. Consideration of objective and subjective signs of violation of the order of entry into and exit from the temporarily occupied territory of Ukraine showed that under the main direct object of violation of the order of entry into and exit from the temporarily occupied territory of Ukraine is - public relations in the field of regulated legal regime in the temporarily occupied territory of Ukraine, additional - public relations in the field of official activity (Part 2 of Article 332-1 of the Criminal Code of Ukraine). The victim of a violation of the order of entry into and exit from the temporarily occupied territory of Ukraine is the state whose interests have caused or may have caused minor damage. The objective side of the violation of the order of entry and temporary occupation of the territory of Ukraine and exit from it is characterized by the action of the form of action, and consists in entering and leaving the temporarily occupied territory of Ukraine. The criminal offense is considered completed from the moment of illegal crossing of the conditional line in the area between the temporarily occupied and controlled territories of Ukraine. The subject of violation of the order of entry into the temporarily occupied territory of Ukraine and departure may be both general and special. For part 1 and part 3 of Art. 332-1 of the Criminal Code of Ukraine, a natural sane person who at the time of committing a criminal offense has reached 16 years of age is subject to criminal liability. In accordance with Part 2 of Art. 332-1 of the Criminal Code of Ukraine, a special subject of a criminal offense is subject to criminal liability, namely an official who used his official position. From the subjective point of view, violation of the procedure for entering and leaving the temporarily occupied territory of Ukraine is committed only in the form of direct intent. The purpose of violating the order of entry into and exit from the temporarily occupied territory of Ukraine is to harm the interests of the state. However, the purpose of harming the interests of the state is too broad a concept, which in turn leads to a combination of administrative and criminal liability for violating the order of entry into and exit from the temporarily occupied territory of Ukraine.