Істотна шкода як криміноутворювальна ознака незаконного зайняття рибним, звіриним або іншим водним добувним промислом: проблеми тлумачення і вдосконалення кримінального закону

Dudorov O., Doctor of Law, Professor, Professor of the Department of Criminal Law Policy and Criminal Law of the Educational and Scientific Institute of Law of the Taras Shevchenko National University of Kyiv (Kyiv, Ukraine)

Kamensky D., Doctor of Law, Professor, Head of the Department of Law, Berdyansk State Pedagogical University (Berdyansk, Ukraine)

SERIOUS DAMAGE AS A CRIME CREATING ELEMENT OF ILLEGAL ENGAGEMENT IN FISH, ANIMAL OR OTHER AQUATIC EXTRACTION TRADE: ISSUES OF INTERPRETATION AND IMPROVEMENT OF THE CRIMINAL LAW

The article is devoted to the characterization of serious damage as a crime creating element of illegal engagement in fish, animal or other aquatic extractive trade (Part 1 of Article 249 of the Criminal Code of Ukraine). Based on the results of elaboration of achievements of criminal law science and practice of application of current legislation (criminal and administrative), as well as with reference to the draft new Criminal Code of Ukraine, recommendations have been developed to establish the content of this assessment element and its regulatory optimization.

The need for legislative establishment of a specific cost indicator of serious damage as an element of the main composition of the analyzed criminal offense is substantiated. Among other things, this is due to the need to overcome arbitrariness in choosing the type of legal liability for violation of the rules of extraction of aquatic bioresources, which exists in practice. After all, today the same actions, which consist in the illegal occupation of the water extraction industry, depending on the discretion of the court or other law enforcer (sometimes unfounded) may receive different legal assessments - either as a criminal offense or as an administrative offense. This state of affairs indicates a blatant violation of the principles of justice and legality in criminal law, and also serves as a powerful corruption risk.

It is also argued that the official specification (formalization) of environmental damage, which will overcome the unacceptable, from the standpoint of legal certainty, conflict between criminal law (Article 249 of the Criminal Code of Ukraine) and administrative law (Article 85 of the Code of Administrative Offenses), should be combined with: 1) inclusion in the disposition of the criminal law prohibition of an alternative indication of illegal extraction of especially valuable species of fish and other aquatic organisms, as well as species listed in the Red Book of Ukraine, incrimination of which (prohibition) will not be connected with establishing the seriousness of the damage caused to the environment; 2) supplementing the note to Art. 249 of the Criminal code of Ukraine by the instruction on a possibility of recognition of essential and ecological (non-material) harm, which will allow considering both complexity of the damage caused to environment owing to commission of the investigated criminal offense, and expediency of using indefinite normative content in similar situations.

The shortcomings of theoretical approaches to solving the criminal law problem at hand are clarified. At the same time, it is stated that the authors of the article are not ready to name the optimal amount of serious damage as a criminal form of illegal engagement in fish, animal or other aquatic extractive trade, which de lege ferenda should be enshrined in footnote 249 of the Criminal Code of Ukraine. Thus, as a direction of further scientific research, a detailed justification (in particular, using the sociological method and studying realities of law enforcement, as well as achievements of modern criminology) the optimal quantitative indicator of such serious damage (more precisely its material component) has been proposed.

Keywords: illegal engagement in fish, animal or other aquatic extractive trade, serious damage, valuation concept, crime creating element, environmental damage, criminal offenses against the environment, qualification.

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