Article title Corpus Delicti and Victim’s Place in its Structure
Authors

Doctor of Law, Professor, Full Member (Academician) of the National Academy of Legal Sciences of Ukraine 

Advisor at the Directorate of the Research Institute for the Study of Crime Problems National Ukrainian Academy of Law Sciences (Kharkiv, Ukraine) borisov_v.i@ukr.net

 

Name of magazine Legal journal «Law of Ukraine» (Ukrainian version)
Issue 2/2020
Сторінки [138-150]
DOI https://doi.org/10.33498/louu-2020-02-138
Annotation

The corpus delicti doctrine is a cornerstone of the system of knowledge about crime, about forming and application of provisions of the Criminal Code of Ukraine (CC of Ukraine), criminal liability and its grounds, etc. Amidst the issues relating to investigation of corpus delicti, the forming of concepts having reference to corpus delicti and its structure is methodologically important. From the perspective of the latter issue, a special role is played by victim of crime – this concept is interdisciplinary and enshrined in the Criminal Procedure Code of Ukraine (CPC of Ukraine) by the term “victim” (art. 55 of CPC of Ukraine, etc.).

The purpose of the article is to characterize the concept of “corpus delicti” as a legal phenomenon – a product which results from cognitive activity of the subject of knowledge and which uses, as its source material, a really existing system of indicia cognized and used in practical activities. It is noted that corpus delicti is a logical and legal model consisting of four scaled-up elements: the object, the objective side, the subjective side and the subject of crime. Each of these elements, for its part, has its own specific structure, with indicium of crime being a criterion of set-up of such a structure, as well as corpus delicti on the whole.

Based on the logical characteristics of the class of items, the author divides all corpus delicti into general corpus delicti (generic concept) and specific one (specific corpus delicti of intentional homicide, intentional severe bodily harm, hostage-taking, etc.). It is indicated that when a crime is committed, the actual corpus delicti of the crime is of legal significance – a set of objective and subjective, as well as necessary and sufficient indicia to be established in accordance with the specific socially dangerous act committed.

In the theory of criminal law, the indicium of a crime victim is regarded as optional indicia of the general corpus delicti, despite the fact that in all cases when a socially dangerous act is committed there will always be a crime victim. Formulating the provision of the Special Part of CC of Ukraine, the legislator does not always make reference to or implies a victim as an indicium of a crime. A victim as a mandatory indicium is prescribed only for certain types of crimes. The author emphasizes that CC of Ukraine does not give a definition of the victim of a crime. This definition is legally enshrined in part 1, Article 55 of CPC of Ukraine, and the author believes that by its legal nature it may be reckoned in the class of substantive law concepts, and therefore it should be used when applying the provisions of criminal procedural legislation as well as legislation on criminal liability. It is noted that the concept of "victim of crime" given by the legislator in certain provisions of CC of Ukraine may not go beyond the legal framework, and thus it can only be individuals or legal entities.

The author concludes that other types of victims (ethnic or social groups, the State, etc.) which are distinguished by the criminal law theory may be the subject in the event when criminal liability law applies only at the level of a criminal law characteristic, i.e., when in connection with a committed crime there arise the issues of comprehensive assessment of the severity with which it is committed.

According to the terminology introduced on April 13, 2012 with the adoption of the new CPC of Ukraine, the concept of “corpus delicti of a crime” is changed for “corpus delicti of a criminal offense”; gradually this term came to be used in modern scientific literature on criminal law. On November 22, 2018 the concept of “corpus delicti of a criminal offence” has been introduced by the Law of Ukraine “On Amendments to Some Legislative Acts of Ukraine Regarding Simplification of Pre-Trial Investigation of Certain Categories of Criminal Offenses” into CC of Ukraine. However, at the time when the author was writing this article, the innovations of this Law have not yet entered into force. According to Art. 12 of CC of Ukraine as amended by the Law, this concept will embrace two types of criminal offenses – misdemeanors and crimes. At the same time, given the centuries-old history of how the concept of “corpus delicti of a crime” was aet in the scientific domain, in this article it is used as the key one in the context of highlighting the views of scholars on the forming and development of its content and place in the structure of victim of crime.

 

Keywords corpus delicti of crime; general corpus delicti of crime; specific corpus delicti of crime; actual corpus delicti of crime; victim of crime
References

Bibliography

Authored books

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Edited books

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Encyclopaedias

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Journal articles

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Theses

17. Radutnyi O, ‘Kryminalna vidpovidalnist za nezakonne zbyrannia, vykorystannia ta rozgholoshennia vidomostei, shcho stanovliat komertsiinu taiemnytsiu (analiz skladiv zlochyniv)’ [‘Criminal Liability for Illegal Collection, Use and Disclosure of Information Regarded as Trade Secret (Analysis of Various Corpus Delicti)’] (dys kand yuryd nauk, 2002) (in Ukrainian).

18. Sidorov B, ‘Povedenie poterpevshih ot prestuplenija i ugolovnaja otvetstvennost’ [‘ Behavior of Crime Victims and Criminal Liability’] (avtoref dis dokt jurid nauk, 1999) (in Russian).