SUBJECT OF DEVELOPMENT FROM THE ORDER OF PENALTY NOT RELATED TO THE IMPROVEMENT OF FUNCTION: THE FIRST PROBLEM ISSUES

Abstract

The purpose of the article is to interpret the concepts of «convicted», «the person serving the sentence» as subjects of the crimes provided for in Art. 389 and 390 of the Criminal Code, and analysis of judicial decisions in criminal case No. 390/757/16-k. The following main conclusions are drawn: the composition of the crimes provided for in Art. 382 and 389 of the Criminal Code of Ukraine — these are adjacent offenses of crime, and therefore during the criminal-legal qualification it is necessary to distinguish them; adjacent signs of syllables of crimes provided for in art. 382 and 389 of the Criminal Code of Ukraine, are the direct object and fault. And the delimitation is the subject of a crime and the subject of a crime. The subject of the crime provided for in Art. 382 of the Code, there is a verdict, a decision, a ruling, a court order, which entered into force, and the subject of a crime envisaged in Art. 389 of the Criminal Code of Ukraine, a court decision, which entered into force, in which the person was sentenced in the form of a fine or deprivation of the right to occupy certain positions or engage in certain activities. The subject of a crime envisaged in Art. 382 of the Criminal Code of Ukraine, there is a person who is obliged to execute a punishment (that is, a person who is endowed with powers of state authority within the framework of criminal-executive relations), and a subject of a crime stipulated in art. 389 of the Criminal Code of Ukraine, is convicted of sentences not related to deprivation of liberty (penalties in the form of a fine, deprivation of the right to occupy certain positions or engage in certain activities, public works or corrective labor). It is concluded that the concept of «execution of punishment» and «serving of punishment» in terms of logic are correlative concepts. At the same time under execution of punishment it is advisable to understand the legal activities of state-power subjects within the framework of criminal-executive relations, and for the serving of punishment — the adherence of prison terms to the regime of serving a criminal sentence. Taking into account the foregoing, the actions of a person who evade execution of a court order to replace the sentence in accordance with art. 82 of the Criminal Code of Ukraine, can not be classified in Part 1 of Art. 382 of the Code, since such person is not endowed with signs of a special subject of a crime envisaged in art. 382 of the Criminal Code of Ukraine.