СOMBAT IMMUNITY: PROBLEMS OF REGULATORY CONSOLIDATION AND IMPLEMENTATION

Abstract

The article examines the peculiarities of the normative consolidation of the institute of combat immunity. It was established that for the first time at the regulatory level, this legal institution was introduced by the Law of Ukraine dated 15.03.2022 № 2124-ІХ, which provides combat immunity as a new type of exemption from criminal liability (paragraph 3 of Article 1 of the Law of Ukraine «On the Defense of Ukraine»). When conducting a dogmatic study of combat immunity, priority was given to the use of a comparative method (comparing with Article 2.9.11 of the draft Criminal Code of Ukraine). It has been established that there are certain differences in the conditions for implementing combat immunity in the current Law of Ukraine «On Defense» and in the draft Criminal Code of Ukraine. It was determined that the following conditions for the implementation of combat immunity were formulated in the draft Criminal Code of Ukraine: 1) a special subject; 2) content of the act; 3) period (environment) of implementation; 4) purpose; 5) consequences of committing an act. The conducted study of the legal regulation of combat immunity testified to the presence of certain shortcomings in determining its legal nature and particular features. The author made certain suggestions for their elimination. In particular, it is proposed to provide combat immunity as a new circumstance that excludes the illegality of an act; define the subjects of «combat immunity» as military personnel, members of the voluntary formation of the territorial community, employees of the law enforcement agency (alternative option – military personnel and persons equated to them by law, officers of the law enforcement agency). A proposal was made to clarify the content of the Regulation on Military Service in the Armed Forces of Ukraine by foreigners and stateless persons, by establishing the specifics of military service by stateless persons. The author's proposed version of item 1, part 1 of Article 1 of the Law of Ukraine «On the Basics of National Resistance»: «a member of a voluntary formation of a territorial community is a citizen of Ukraine or a foreigner or a stateless person who is in Ukraine on legal grounds and on a voluntary basis enrolled for service as part of a voluntary formation of a territorial community».