Structure of Mechanism of Implementation of Criminal Legislation

Under the mechanism of implementation of criminal legislation of Ukraine it is necessary to understand the totality of processes (system or method) of implementation of rights and obligations of subjects of criminal legal relations in the form of observance, enforcement, use and application in the life enshrined in criminal law. The mechanism of implementation of criminal legislation of Ukraine can be represented in the form of a system of certain elements. In this regard, its structure should be considered. Since there are no substantive developments on this issue in the theory of criminal law, the structural elements of adjacent legal as well as criminal legal mechanisms must be explored.

According to the goal, the following tasks need to be performed: taking into account the current achievements of theory of domestic criminal law, to reveal controversial issues regarding mechanism of implementation of criminal legislation in the form of a process and to consider the theoretical provisions regarding the peculiarities of realization of criminal legal relations by subjects of criminal law with regardto acts of implementation of criminal legislation envisaged by legislation on criminal responsibility within one of four forms - compliance, enforcement, application or use; to substantiate new approaches to understand the mechanism of implementation of criminal legislation as a system of objective and subjective elements; to formulate and substantiate concrete proposals concerning its structural elements.

Presentation of the main material

Scientists express conceptually distinct views on the structure of mechanism of realization of law in general, as well as in relation to its certain branches. As for the problem of implementation efficiency, T. Falkina argues that mechanism of the realization of law - a system of legal means, which includes the following elements: 1) related to the activities of the subject of law itself; 2) connected with the state-power activity; 3) which determine the legal procedure for implementation of subjective law and legal obligation; 4) which characterize the level of legal awareness and legal culture of subject of law (Tarusina, 2014, p. 314324). Instead, K. Kaverina notes that in its content the mechanism of implementation of administrative law rules includes three blocks: normative-institutional, administrative-procedural and instrumental, the leading of which is the normative-institutional. The concept of "mechanism" in the usual word-formation has a rather voluminous content (Beshukova, 2016). Components of structure proposed by scientists are certainly entitled to exist. Researchers use different approaches to designing mechanism by expanding the relevant elements in different styles. Obviously, further development of the problem will give an opportunity to take a new look at the system (structure) of law and its branch divisions, in particular the system of criminal law (Chirkov, 2009, p. 36).

More similar are views of scientists on the elements of mechanism of legal regulation, although here the thoughts of scientists also vary. A. Abramova include legal fact, norm of law, legal relationship, an act of application to the elements of the mechanism of legal regulation; O. Zakharchenko states the same on norms of law, legal relations, legal personality, legal facts and legal consciousness; L. Volodina - on norms of law, legal relations, acts of law implementation, legal consciousness and legal culture; S. Alekseev - on legal norms (normative basis), subjective rights and duties (legal relationships), acts of realization of rights and obligations. In addition, the latter among the main elements names acts of use, expressing the state- forced, individualized operation of the mechanism of legal regulation. Legal consciousness, as well as legitimacy, has general significance of this mechanism forming its grounds, core of the whole mechanism. The system of mechanisms, specific methods of forming the law, through which the legal system of society moves, is determined at the level of basic legal acts of the state (Trofimov, 2013, p. 1770).

So, in legal science, the main elements of mechanism of legal regulation are: norms of law, legal facts, legal relations, acts of the application of norms of law, acts of the implementation of norms of law, legal personality, legal consciousness, legal culture. Point of view expressed by S. Alekseev that all other legal phenomena - normative acts, interpretation, legal technique, legal liability, etc. - join to one or another of the main links of the mechanism (can be attached to them) should be paid an extra attention. Some of the criteria acquire new content, more substantiated and relevant to modern reality (Danilenko, 2009).

In modern legal science, two approaches have been formed to identify elements of the legal regulation mechanism.

1. Broad approach, characterized by a set of elements involved in the organization of social relations: 1) the rule of law, which determines the model of possible and necessary behavior of subjects of social relations; 2) regulatory act - legal document that provides a legal norm of a formal, determined, official and obligatory nature; 3) legal facts - specific life circumstances that result in the rule of law; 4) legal relations - a kind of social relations, regulated by legal norms which perform functions of interaction of such norms with a specific subject and the definition of specific behavior for the personified entities; 5) interpretation - activity aimed to determine the true meaning of rule of law in case of its incomprehensibility or non-compliance with the requirements of legal technology; 6) realization of right - implementation of legal norm by observance, enforcement, use and application; 7) legality, as one of the principles of implementation of legal norms through compliance with requirements of law by subjects of law; 8) legal awareness, as the level of awareness of legal prescriptions by subjects of law; 9) legal culture, as a kind of general culture, consisting of spiritual and material values that relate to legal reality; 10) lawful conduct - a conscious activity of subjects in accordance with the law, for socially useful purposes and within the limits established by legislation; 11) unlawful behavior - behavior contrary to legal requirements; 12) legal responsibility - a measure of state coercion (personal, property or organizational nature) applied to actors who committed an offense and involves imposing on them a new additional obligation.

2. A narrow approach to the structure of the legal regulation mechanism covers only those elements that form the basis of the regulatory function of law. Among them - norms of law, legal acts, legal relations, realization of law, legality. Each of the elements of this system performs a kind of function in satisfying the interests of subjects, regulating social relations, achieving the effectiveness of legal regulation (Bostan, 2013, p. 242-243).

These elements are also characteristic to the mechanism of criminal law regulation.

Yu. Baulin argues that mechanism of criminal legal regulation includes: 1) relevant norms of criminal law, hypotheses of which involve signs of a crime committed by a person, and dispositions (sanctions) - criminal legal sanctions, which authorities bodies of power are authorized to apply to a certain offender; 2) legal fact - the commission of a crime (completed or unfinished, one-person or in complicity, for the first time or repeatedly, etc.); 3) acts of application of a certain criminal law - hypotheses at the stage of pretrial investigation and hypotheses and dispositions of the criminal legal norm by court. P. Berzin believes that structure of mechanism of criminal legal regulation includes the following main elements: a) criminal law; b) legal facts; c) criminal legal relations; d) acts of application of criminal law; e) acts of the implementation of criminal law. According to S. Shapchenko, structure of mechanism of criminal legal regulation includes the following main elements: a) criminal legal norms (criminal law in its proper sense); b) legal facts; c) criminal legal relations; d) acts of application of criminal law; e) acts of implementation of criminal law (Shapchenko, 2000, p. 64).

O. Naden notes that mechanism of legal regulation is a consistent chain of changes in individual legal phenomena: the norm of law, which regulates criminal social relations - the legal fact - the rights and obligations that exist in criminal legal relations that arose on his grounds, - realization of these rights and fulfillment of duties. M. Kropachev under mechanism of criminal legal regulation understands the system of successively interconnected elements: the subject of legal regulation, whose peculiarities determine the limits of measures used by society that restrict the will, honor, dignity and property interests of the individual, and hence the possibility to encroach on them; legal norm; legal facts; regulatory and security criminal legal relations; criminal responsibility. O. Groshev argues that mechanism of criminal legal regulation includes three main elements - criminal legal norm, criminal legal relations, criminal responsibility. This is due to the fact that Criminal Code does not contain the concept and list of both types of measures of criminal legal influence (Truntcevskii, 2015), as well as elements of mechanism of criminal legal regulation.

So, in theory of criminal law criminal legal norms, legal facts, acts of criminal legal norms application and criminal legal relations are recognized as elements of mechanism of criminal legal regulation.

Similar components of mechanism of legal regulation are distinguished by scientists in the field of criminal proceedings. So, A. Bakhta understands a single system of legal means, which consists of norms of criminal procedural legislation, criminal procedural relations, application of criminal procedural norms, applicable criminal procedure acts that provide effective legal regulation and influence in the field of criminal justice as a mechanism of criminal procedural regulation. This is confirmed by the fact that some of these elements have virtually universal character for several branches of law.

At the same time, assignment of realization of rights and fulfillment of duties to such elements, as it offered by O. Naden, is illogical. Realization of rights and fulfillment of duties is a certain process both within mechanism of criminal legal regulation and in implementation of criminal legislation. We consider the stress on the subject of legal regulation (among elements of mechanism of criminal legal regulation) proposed by M. Kropachev also excessive.

Criminal responsibility, which some scientists consider as an element of criminal legal regulation, is clearly part of such mechanism, but to stress on it as on independent element is inappropriate at least because this is only one of the measures of criminal legal influence within the criminal legal regulation of social relations, for example, along with coercive measures of educational nature or measures of a criminal legal nature with regard to legal entities. By the way, some scientists correctly point out the mechanism for implementation of criminal responsibility, given that this is one of the most important and most common mechanisms for implementation of criminal legislation.

To the structural elements of the mechanism of realization of legal responsibility O. Samusevich includes: a) organizational (the totality of subjects involved in the process of legal responsibility); b) normative (normative legal base, regulating the behavior of all subjects involved in the process of legal responsibility); c) instrumental (legal means which implement legal responsibility); d) functional (legal relations within which rights and obligations of subjects are realized).

Instead, mechanism of implementation of criminal responsibility, according to E. Skulish and I. Mitrofanov consists of a set of legal elements that contribute to its normal functioning and could be conventionally combined into several interdependent units. For example, this is a block that provides the beginning of implementation of criminal responsibility (the legal framework for implementation), a block of legal relations, a block of criminal legal enforcement, through which criminal responsibility is implemented, and a block of individual legal regulation (which is singled out conditionally for its study - it permeates all the other blocks of the mechanism), which joins the previous units in case of necessity to specify the certain circumstances necessary for continuous realization of the criminal legal norms that establish penalties for one or another act.

The closest for its legal nature to mechanism of implementation of criminal legislation is the mechanism of implementation of criminal legal norm. A. Litvinov notes that the latter includes: the legal norm, legal means, actions of officials and citizens. But structure proposed has certain flaws. First of all, the question arises whether criminal legal norms are included to legal means or not. In addition, the list of such elements seems inexhaustible and in our opinion cannot create a complete mechanism of implementation of even one criminal legal norm.

According to the results of study of mechanism of implementation of criminal legislation and other legal mechanisms, we can conclude that its structure primarily includes criminal legal norms and legal facts.

It is interesting to stress on position of scientists, which are distinguished legal and factual basis within the doctrine of mechanism of realization of law. In this regard, the position of T. Falkina that legal (regulatory) basis of mechanism of implementation of subjective rights and legal obligations are legal norms is quite interesting. The actual basis is legal facts and acts of legal enforcement. Scientists in the field of criminal law, in particular P. Berzin, refer to criminal law as the basis of «functioning» of mechanism of criminal law regulation. It is hardly possible to overestimate the value of work performed and contribution to science of criminal law, both to the scientific school in general and its individual representatives in particular (Panko, 2014, p. 294).

Of course, the mechanism of implementation of criminal legislation is within the framework of criminal legal relations, so the latter are an integral part of it.

Taking these elements into consideration mechanism of implementation of criminal legislation can be described in the form of this process: subjects of criminal legal relations on the basis of criminal legal norms implement acts of criminal legal implementation provided by the law on criminal responsibility within one of the four forms - compliance, enforcement, use or application.

Within framework of mechanism of implementation of criminal legislation, it is possible to distinguish its normative, instrumental, subjective and functional components.

The normative component includes, first of all, provisions of the law on criminal responsibility, which determine the behavior of subjects of the implementation of criminal legislation. It also covers the provisions and other normative legal acts, in particular the CPC of Ukraine, the norms of which determine the procedure of implementation of criminal legal norms.

The instrumental component of mechanism of implementation of criminal legislation covers a set of criminal law methods, means and ways through which the implementation of criminal legislation is made.

The subjective component of mechanism of implementation of criminal legislation include subjects involved in various forms of such implementation. The following categories of persons should be recognized as such subjects: 1) subject of crime;

2) person who does not commit crime; 3) person who committed socially dangerous act and recognized as not having reached the age from which the criminal responsibility comes; 4) person who committed a socially dangerous act and recognized as insane; 5) person who acted within the limits of the circumstances excluding the criminality of certain act; 6) court.

The functional structure of mechanism of implementation of criminal legislation characterizes it in dynamics, reflects the interconnection and interaction of its elements.