КВАЛІФІКУЮЧІ ОЗНАКИ САМОВІЛЬНОГО ЗАЙНЯТТЯ ЗЕМЕЛЬНОЇ ДІЛЯНКИ ТА САМОВІЛЬНОГО БУДІВНИЦТВА: ПРОБЛЕМИ КОНСТРУЮВАННЯ ТА ШЛЯХИ ВДОСКОНАЛЕННЯ ЗАКОНОДАВСТВА

Abstract

The article is devoted to the identification of legislative shortcomings in the design of qualifying signs of criminal offenses provided for in Article 197-1 of the Criminal Code of Ukraine. Taking into account the content of the main direct object of unauthorized occupation of a land plot, the provision is substantiated that all qualified offenses provided for in Article 197-1 of the Criminal Code of Ukraine must be designed as material ones. It was revealed that the average amount of damage caused as a result of the commission of a criminal offense provided for in part 1 of Article 197-1 of the Criminal Code of Ukraine is approximately 10 times higher than the same indicator that is recorded in the commission of a criminal offense provided for in part 2 of Article 197-1 of the Criminal Code Ukraine. It is argued that, based on the “anti-proprietary” nature of the unauthorized occupation of a land plot, the infliction of significant damage in cases of this encroachment must be recognized as a circumstance that significantly increases the degree of its public danger, that is, meets the basic requirement that criminal law science puts forward to the circumstances, claiming to be recognized as qualifying signs. In addition, with the help of the examples given in the article, it is demonstrated that the considered feature does not contradict another fundamental criterion: it is relatively common (not isolated), but does not accompany most of the criminal offenses under consideration. Also substantiated is the provision that the system of especially qualifying signs of the investigated composition of a criminal offense should be supplemented by indicating the unauthorized occupation of a land plot, which has caused significant (new part 3) and grave damage (new part 4). It is argued that the title of the improved Art. 197-1 of the Criminal Code of Ukraine, it is not worth mentioning unauthorized construction (next to the unauthorized occupation of a land plot), as well as to provide for its qualifying features in this article.