Право і безпека (Jun 2022)
Criminal law characteristics of mass destruction weapons as a criminal offense constructive objective feature (Articles 439, 440 of the Criminal Code of Ukraine)
Abstract
The norms of international and national legislation, which determine the definition and meaning of the concept of mass destruction weapons, as well as each of its components – chemical, biological (in particular, toxin) and nuclear weapons – have been studied. It has been established that a constructive objective feature of the crimes provided for in Articles 439 and 440 of the Criminal Code of Ukraine is not any weapon of mass destruction, but only those prohibited by international treaties, the consent of which is binding on the Verkhovna Rada of Ukraine. Considering that the highest body of the legislative power of Ukraine has not ratified the international treaty on the prohibition of nuclear weapons, approved by the General Assembly of the United Nations on July 7, 2017, the position of the scientists who believe that as part of the crime of “use of mass destruction weapons” (Article 439 of the Criminal Code of Ukraine), nuclear weapons are not part of the concept of “weapons of mass destruction” has been supported. Doctrinal approaches to distinguishing the object, means and instrument of committing a criminal offense have been considered, on the basis of which it has been concluded that the object of the crime is a “passive” feature of the composition of the criminal offense, it is characterized by a criminal influence on it in the form of action or inaction, its properties are provided by the subject of the crime use in the more or less distant future. Weapons of mass destruction as part of the criminal offense provided for in Art. 440 of the Criminal Code of Ukraine, is the subject of this crime. The means of committing the crime is an “active” feature of the composition of the criminal offense, its properties are used by the criminal to create favorable conditions and facilitate the implementation of the illegal act. The instrument of the crime is also an “active” feature of its composition. Its properties are always used by the criminal directly when committing the crime to cause or threaten to cause significant damage to the object of criminal law protection. As part of the criminal offense provided for in Art. 439 of the Criminal Code of Ukraine, weapons of mass destruction are the means of committing this crime.
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