ІСТОТНА ШКОДА ЯК НАСЛІДОК НЕЗАКОННОЇ ПОРУБКИ ЛІСУ: РЕТРОСПЕКТИВА, СЬОГОДНІШНІЙ СТАН І ПЕРСПЕКТИВА КРИМІНАЛЬНОГО ЗАКОНУ

Abstract

The article is devoted to the analysis of substantial damage as a mandatory feature of the objective aspect of the crime provided for in Art. 246 of the Criminal Code of Ukraine "Illegal felling or illegal transportation, storage, sale of forest". The content and meaning of the indicated constitutive feature were investigated both in the law-making and law-en-forcement plane. It was established that the legislative approach to determining the content of socially dangerous consequences as part of the crime provided for in Art. 246 of the Criminal Code, in the form of substantial damage, has been changed several times. The factors that led to the rejection of the evaluative nature of this feature (in the part of the property component), as well as the shortcomings of the original one (implemented on the basis of the Law of Ukraine dated September 6, 2018 "On Amendments to Certain Legislative Acts of Ukraine on the Preservation of Ukrainian Forests and prevention of illegal export of unprocessed timber") formalization of significant damage. It is proven that the legal positions formulated by the Supreme Court signal the need for comprehensive improvement of the criminal law in order to form an appropriate system of qualifying features that would be consistent with the features of the main components of crimes and correspond to the achievements of the doctrine of criminal law. It is shown that the use in Part 2 of Art. 246 and part 3 of this article of the Criminal Code are actually the same types of sentencing disposition. It has been proven that the elements of the crime pro-vided for in Part 1 of Art. 246 and part 3 of this article of the Criminal Code, can be consid-ered homogeneous, but not basic and qualified, respectively. Arguments are presented in favor of the provision on the perspective of constructing illegal logging, committed in spe-cially protected forests, as a material crime. Criticized (in particular, due to the finding of a violation of the principle of legal cer-tainty) the legislative decision on the construction of the composition of the crime provided for in Art. 246 of the Criminal Code, as an offense with variable actions. Some shortcomings of the draft provisions of the new Code of Criminal Procedure, dedicated to the acquisition of natural resources and handling of illegally extracted natural resources, have been clari-fied.