CRIMINALLY-LEGAL CHARACTERISTICS OF VIOLENCE UNDER REQUIRED DEFENSE (NATIONAL AND INTERNATIONAL ASPECT)

• Main Author: O. M. Khramtsov
• Format: Article
• Language: English
• Published: V. N. Karazin Kharkiv National University 2019-12-01
• Series: Вісник Харківського національного університету імені В. Н. Каразіна Серія: «Право»

The article is considers violence as a sign of circumstances precluding the criminality of an act, including necessary defence. It is indicated that it in the relevant criminal law has the following meaning: it characterizes the basis of certain circumstances precluding the criminality of the act; its use is the basis for the "unlimited" use of force for protection; acts as a basis for bringing to criminal responsibility in case of exceeding the limits in certain circumstances, excluding the criminality of the act. The attention is focused on the fact that violence in the norm about the necessary defence, first of all, characterizes its basis and actions related to exceeding the limits of necessary defence. Violence characterizes such a legal basis of necessary defence as a socially dangerous encroachment. The author argues that such encroachment characterizes both criminal physical and criminal mental violence. The manifestations of the latter are threats that have the necessary criminal and legal signs, the main of which is the reality of the threat. Separately, the “attack” is investigated as a criminal-legal category. Its author’s definition is given and the concepts of “violence” and “attack” are distinguished as categories of circumstances precluding the criminality of an act. A study of the norms of the necessary defence in the laws of the developed countries of Europe and the former USSR has established that violence is a key feature that must be established and it must be given the necessary criminal law assessment. Additional arguments are provided in support of the position that it is violence, its nature and danger that create the grounds for the so-called “unlimited” necessary defence, which is provided for in most criminal legislations of the countries of the world. The author's proposals and recommendations for the improvement of the relevant criminal legislation of Ukraine and its practice are given. Methods. In preparing the article, the dialectical method was used, and the method of logical analysis. Based on the scientific position of Ukrainian and foreign scientists, the author made reasonable and relevant conclusions on the subject under study. The method of historical analysis allowed investigating the genesis of the development of legislation on the necessary defence. The comparative method allowed establishing the features of the criminal law assessment of violence in the necessary defence in the laws of the developed countries of Europe and the former USSR. Results and conclusions. It has been established that violence in the necessary defence is the most important sign of socially dangerous encroachment as its basis and characterizes the excess of the limits of necessary defence. Additional arguments are given that determine that it is a socially dangerous encroachment, and no other actions that should serve as the basis of the necessary defence. An analysis of the criminal legislations of different countries led to the conclusion that the Ukrainian legislation in this area as a whole meets the requirements of the theory and practice of European criminal law.