Mental coercion as a circumstance excluding the criminality of an act in the commission of a crime that infringes on life

Abstract

The article is devoted to the existence of the criminal law institute “Circumstances excluding the criminality of an act” at the legislative level, which was enshrined in the new Criminal Code adopted by the Verkhovna Rada of Ukraine on April 5, 2001. This institute has undergone the largest update and amendments in the Criminal Code of Ukraine, so some of the circumstances provided for in it require further development, analysis and clarification. In its turn, the Criminal Code of 1960 provided for three circumstances that exclude the criminality of an act: extreme necessity, necessary defense and apprehension of the offender. However, criminal law has also studied other circumstances that exclude the criminality of an act that were not directly enshrined in the Criminal Code. Understanding and defining the circumstances excluding the criminality of an act is of great practical and scientific importance. The main function of such a definition is to reflect the objectively real circumstances that characterize these circumstances. The concept of these circumstances, based on the generic properties (features, attributes) of individual species, promotes differences and disagreements and emphasizes what they have in common. Thus, the basis of this concept is the defining and essential properties of the circumstances under consideration. The author examines violence as a circumstance which excludes the criminality of an act, and analyzes its significance in the context of behavior of a person who committed a certain act due to the relevant influence which he/she was unable to resist. An example is the case when a person pushed the victim, and as a result, the latter's health was harmed. The model of this article is specified in Part 1 of Article 40 of the Criminal Code of Ukraine, and such an act of a perpetrator in the theory of criminal law is called irresistible physical coercion. First of all, we note that there is a feature which unites all the circumstances excluding the criminality of an act, which includes the legitimacy of causing harm to the interests protected by criminal law, which is the functional purpose of criminal law. The author proves that in order to exclude subjectivity of a judge as much as possible, it is necessary to legislatively regulate the concepts of physical and non-physical violence, and also to identify the general features which will characterize non-physical violence and exclude liability of a person for actions committed under its influence. Another pressing issue that requires special attention is the clear regulation of a person's liability for an act or omission committed under the influence of non-physical violence. The author believes that such a person is not subject to criminal liability for a committed criminal offense, since when a person is subjected to non-physical violence, he or she cannot control his or her actions. Therefore, in our opinion, it would be quite logical to legislate the exemption of a person from liability for acts committed under the influence of non-physical violence. The author proposes a new version of Article 40 of the Criminal Code of Ukraine.