CAUSING HARM UNDER CIRCUMSTANCES THAT EXCLUDE THE CRIMINAL ILLEGALITY OF THE ACT: ISSUES OF A SECTOR-SPECIFIC NATURE AND LEGAL CONSEQUENCES

Abstract

Introduction. Section VIII of the General Part of the Criminal Code of Ukraine contains the characteristics of criminally lawful infliction of harm. In the event of such conduct, a decision must be made to terminate criminal prosecution due to the absence of the elements of a criminal offense. At the same time, the result of such conduct (namely, the nature and types of harm caused to a person or legally protected interests in the presence of circumstances regulated by the aforementioned section), as well as the full range of legal consequences, are not directly defined by law.

Summary of the main findings of the study. To explain the deep sociocultural nature of the right to cause harm to legally protected interests under circumstances that exclude the criminal unlawfulness of an act, it is worth considering the positions of social naturalism, according to which such conduct constitutes a just response to manifestations of arbitrariness and delusion. The uniqueness of the institution of circumstances that exclude the criminal unlawfulness of an act lies in the fact that it recognizes as lawful the conduct of a person who causes substantial harm to objects protected by criminal law. This is sufficient for the criminal-law assessment of the fact of causing harm. It is reasonably considered that such conduct does not constitute grounds for criminal liability and therefore excludes it. The act is recognized as factually harmful (but not socially dangerous) and, at the same time, not criminally unlawful. The infliction of harm under circumstances that exclude the criminal unlawfulness of the act is subject to assessment through the lens of other branches of law (in particular, civil law). The absence of criminal liability does not preclude the application of other forms of legal liability for the infliction of harm. At the same time, in any case, the object of the harm caused must be assessed specifically as a “legally protected interest,” which should be done with due regard to the legal positions of the Constitutional Court of Ukraine. The reference to the infliction of harm to legally protected interests, as used in the provisions of Section VIII of the General Part of the Criminal Code of Ukraine, essentially reflects the facts of changes (reduction, loss) in specific tangible and/or intangible benefits, that is, in the infliction of physical, property, or moral (non-property) harm.

Conclusion. The infliction of harm to legally protected interests as a characteristic of a person’s conduct in the presence of circumstances that exclude the criminal unlawfulness of the act reflects the actual changes (reduction, loss) of specific material and/or non-material benefits, that is, in the infliction of physical, property damage, or moral (non-property) damage in an amount exceeding de minimis, i.e., in a substantial manner. From the perspective of criminological justification, such behavior satisfies individual and collective needs, while from the perspective of formal criminal law assessment, it excludes criminal unlawfulness and criminal liability. However, the identical legal fact of causing harm to protected interests gives rise to different legal consequences in various branches of national law. A systematic analysis shows that causing harm to an aggressor (which is necessary and sufficient in the given situation to immediately avert or stop the attack, committed with the aim of protecting the legally protected rights and interests of the person being defended or another person, as well as public interests and the interests of the state) constitutes lawful infliction of harm in both criminal and civil law contexts. At the same time, in the event of exceeding the limits of necessary defense, putative defense, or any other circumstance provided for in Section VIII of the General Part of the Criminal Code of Ukraine, the infliction of harm to legally protected interests (in fact – causing property damage (losses), moral (non-property) harm) is subject to compensation by the person who caused it. Under such approaches, the harm caused to legally protected interests cannot be recognized as lawful, but it is merely such that it excludes the grounds for criminal liability, i.e., it is exclusively criminally lawful (not criminally unlawful), yet it gives rise to other legal consequences unfavorable to a socially active individual, which significantly reduces the incentive, preventive, and regulatory effect of the institution of circumstances that exclude the criminal unlawfulness of an act.