刑事诉讼目标中的刑事犯罪保护

V. Novozhylov
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The status of the person carrying out the counteraction to the offence is the criterion of differentiation between defence and protection from delinquent offence.The author analyses the current legal construct of the objective of criminal procedure “protection from crime and misdemeanour” and concluded that it is not entirely accurate due to the fact that it is impossible to establish and prove the presence of all necessary conditions of crime or misdemeanour at the time of criminal procedural counteractions is needed to be issued.Substantiation of illegality (that is the delinquent offence is prescribed directly in the Criminal Code of Ukraine) as a necessary and sufficient condition of the criminal offence which should be counteracted and eliminated to fulfil the protection as the objective of criminal procedure was provided.The possibility to use social danger as a condition for the enforcement of the protection from delinquent offences as the objective of criminal procedure is analysed. The author stated that social danger of the offence should be evaluated only by a legislative body in the process of criminal law amendments including changes in the classification of criminal offenses. The social danger evaluation of the criminal offence the illegality of which is prescribed in the Criminal Code of Ukraine is not the objective of criminal procedure in any of its stages because social danger is not a formalised notion, unlike conditions of criminal offence that are prescribed in the Criminal Code and should be proven on the trial.The author’s definition of “the protection from criminal offences as the objective of criminal procedure” is derived, according to which this is the activity of the subject who is external to the criminal offence and whose authority or rights are prescribed by criminal procedural norms or initiate the enforcement of these norms, and this activity is aimed at creation of obstacles for a certain delinquent offence the illegality of which is determined by criminal law, suppresses it, prevents or minimizes negative consequences of it.An overview of objects of protection in criminal procedure is provided. 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The concept of “atypical counter-protection” was proposed, which means protection of individuals, community, society, and the Ukrainian People from illegal delinquent offences performed by empowered subjects of criminal procedure.The author suggests two criteria for effectiveness evaluation of criminal procedural activity on the protection from criminal offences: (1) its timeliness and (2) proportionality of applied measures and the criminal offence.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":" ","pages":""},"PeriodicalIF":0.0000,"publicationDate":"2022-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":"{\"title\":\"Protection from Criminal Offences as the Objective of Criminal Procedure\",\"authors\":\"V. 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引用次数: 0

摘要

本文重点研究了刑事诉讼目标中刑事犯罪概念保护的确定问题。保护的概念可分为广义和狭义。保护作为一个广泛的概念意味着旨在确保、执行和恢复受害者的权利和自由或社会利益的某些活动。根据这一定义,一切刑事诉讼都可视为法律保护的执行行为。保护作为一个狭义的概念,是指在刑事犯罪之外的主体针对该犯罪所进行的活动。对犯罪实施反击的人的地位是区分防卫与保护的标准。本文分析了我国现行刑事诉讼目标“防止犯罪和轻罪”的法律结构,认为在需要提出刑事诉讼对抗时,不可能确立和证明犯罪或轻罪的全部必要条件的存在,因此这一目标并不完全准确。证实非法行为(即违法行为在乌克兰《刑法》中有直接规定)是刑事犯罪的必要和充分条件,应当予以抵消和消除,以实现作为刑事诉讼目标所提供的保护。分析了将社会危险作为刑事诉讼目的保护的实施条件的可能性。发件人指出,只有立法机构在修改刑法的过程中,包括改变刑事犯罪的分类,才能对这种罪行的社会危险性进行评估。对《乌克兰刑法典》所规定的非法性的刑事犯罪进行社会危险评价,在其任何阶段都不是刑事诉讼的目标,因为社会危险不是一个正式的概念,不像《刑法典》所规定的刑事犯罪条件,应在审判中加以证明。根据作者对“作为刑事诉讼目的的刑事犯罪保护”的定义,这是指处于刑事犯罪之外的主体的活动,其权力或权利由刑事诉讼规范规定或发起这些规范的执行,这种活动的目的是为某种由刑法确定为非法性的违法行为制造障碍,压制它;防止或减少它的负面影响。本文概述了刑事诉讼中的保护对象。作者建议将个人、社区、社会和乌克兰人民列为免受刑事犯罪保护的对象。作者认为,只有特定的主体才能实现作为刑事诉讼目的的对犯罪的保护。他们包括(1)有权逮捕罪犯的官员,(2)在犯罪发生后立即逮捕罪犯的任何人,(3)调查法官,(4)检察官,(5)调查员,(6)询问者,(7)在上诉时进行程序前调查活动的犯罪侦查单位,为刑事犯罪进行法律惩处准备的刑事程序前调查,(八)对依法应受处罚的犯罪准备或者正在进行的犯罪请求进行审前侦查的个人、法人。提出了“非典型反保护”的概念,即保护个人、社区、社会和乌克兰人民免受被授权的刑事诉讼主体实施的非法犯罪行为的侵害。笔者提出了刑事诉讼保护活动有效性评价的两个标准:(1)其及时性;(2)适用措施与刑事犯罪的相称性。
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Protection from Criminal Offences as the Objective of Criminal Procedure
The study focuses on the issue of determination of protection from the criminal offences concept as the objective of criminal procedure. The concept of protection can be defined widely and narrowly. Protection as a wide notion means certain activities aimed at ensuring, implementing, restoring the rights and freedoms of victims or the interests of society. All criminal procedures can be considered as the action of legal protection enforcement according to this definition. Protection as a narrow notion means the activity of the subject who is external to the criminal offence aimed against this offence. The status of the person carrying out the counteraction to the offence is the criterion of differentiation between defence and protection from delinquent offence.The author analyses the current legal construct of the objective of criminal procedure “protection from crime and misdemeanour” and concluded that it is not entirely accurate due to the fact that it is impossible to establish and prove the presence of all necessary conditions of crime or misdemeanour at the time of criminal procedural counteractions is needed to be issued.Substantiation of illegality (that is the delinquent offence is prescribed directly in the Criminal Code of Ukraine) as a necessary and sufficient condition of the criminal offence which should be counteracted and eliminated to fulfil the protection as the objective of criminal procedure was provided.The possibility to use social danger as a condition for the enforcement of the protection from delinquent offences as the objective of criminal procedure is analysed. The author stated that social danger of the offence should be evaluated only by a legislative body in the process of criminal law amendments including changes in the classification of criminal offenses. The social danger evaluation of the criminal offence the illegality of which is prescribed in the Criminal Code of Ukraine is not the objective of criminal procedure in any of its stages because social danger is not a formalised notion, unlike conditions of criminal offence that are prescribed in the Criminal Code and should be proven on the trial.The author’s definition of “the protection from criminal offences as the objective of criminal procedure” is derived, according to which this is the activity of the subject who is external to the criminal offence and whose authority or rights are prescribed by criminal procedural norms or initiate the enforcement of these norms, and this activity is aimed at creation of obstacles for a certain delinquent offence the illegality of which is determined by criminal law, suppresses it, prevents or minimizes negative consequences of it.An overview of objects of protection in criminal procedure is provided. The author proposed to attribute the individual, community, society and the Ukrainian People as objects of protection from criminal offences.The author states that only certain subjects can realize the protection from the criminal offence as the objective of the criminal procedure. They include (1) officials who have the right to arrest an offender, (2) any person who has apprehended an offender immediately after the offence, (3) investigating judge, (4) prosecutor, (5) investigator, (6) inquirer, (7) operative units on detection of crime that performed preprocedural investigative activity when they appeal to initiate the criminal procedural pre-trial investigation of the punished-by-law preparation for a criminal offense, (8) individuals and legal entities that appeal for initiation of pre-trial investigation of the punished-by-law preparation for a criminal offense or of the continuing or ongoing criminal offense. The concept of “atypical counter-protection” was proposed, which means protection of individuals, community, society, and the Ukrainian People from illegal delinquent offences performed by empowered subjects of criminal procedure.The author suggests two criteria for effectiveness evaluation of criminal procedural activity on the protection from criminal offences: (1) its timeliness and (2) proportionality of applied measures and the criminal offence.
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