Using historical-legal and comparative-legal methods, the genesis of domestic legislation on criminal liability for war crimes from the years of Kievan Rus to the present is studied, as well as on the basis of general scientific methods the provisions of criminal codes and military-criminal laws of 28 near and far responsibility for disobedience.
The generic, specific and direct object of disobedience is investigated and it is concluded that the direct object of disobedience is the social relations between the chief and the subordinate, which are determined by the appropriate order of subordination (execution of orders) and military honor established by laws and military statutes.
The analysis of the object and the objective side clarifies the mechanism of harm to military service public relations through criminal influence aimed at the social connection between the commander (chief) and subordinate. The subordinate unlawfully opposes his will to the chief, does not obey the latter by refusing to carry out the order, which is binding, thereby distorting the static relationship between himself and the chief, which exists in connection with the performance of military service.
All the features inherent in the order, as one of the forms of interaction between the military commander and the subordinate and in its content is a kind of authoritative order of the commander, aimed at the subordinate, which should relate only to the interests of military service, while proving that forms the objective side of the composition of disobedience.
It is concluded that it is necessary to abolish the institution of unconditional execution of a military order and normative and legal consolidation of a special procedure for appealing by the executor of the legality of the order. Such a formal procedure should be a relatively lengthy and fragmented process of resolving a conflict situation in the interests of service and protection of human rights and freedoms that may be violated in the event of an illegal order.
It is proved that the onset of the legal fact of the beginning of military service cannot be measured by such an indefinite, lasting period of time as a day. It is seen that the term "day" in Article 24 of the Law of Ukraine "On Military Duty and Military Service" should be replaced by the term "time", this is also consistent with the term criminal law - "time of criminal offense".
When analyzing the mental attitude of a serviceman to the act committed by him, it is substantiated that the awareness of the social danger of disobedience follows from the awareness of its illegality, and not vice versa. This conclusion is based on a mixed illegality of disobedience, in which the serviceman violates not only the provisions of criminal law, but also the rules of military statutes.
It was found that the disposition of Art. 402 of the Criminal Code of Ukraine provides for two forms of non-compliance with the order: disobedience and other intentional non-compliance with the order. These two forms differ from each other only in the degree of reaction of the serviceman to the order given by the chief. In the first case, the serviceman categorically declares that he will not perform the actions required by the chief or he refuses to stop the actions required to be terminated by the chief and in fact does not carry out the order of the chief. Otherwise, the refusal to execute the content of the order is manifested in a silent form, when the subordinate by his actions, gestures, facial expressions demonstrates a lack of intention to carry out the order.
