THE RIGHT OF A PERSON TO CAUSE HARM IN THE CONTEXT OF CIRCUMSTANCES THAT EXCLUDE THE CRIMINAL ILLEGALITY OF AN ACT

Abstract

The article analyzes the provisions of the Criminal Code of Ukraine and its draft which regulate the circumstances excluding criminal unlawfulness of an act through the prism of a person’s exercise of his or her subjective right to cause harm to law-protected interests. Such a subjective right arises from the constitutional rights to protect one’s rights and freedoms from violations and unlawful encroachments by any means not prohibited by law, as well as to protect one’s life and health, and the life and health of other people from unlawful encroachments (Articles 27 and 55 of the Constitution of Ukraine). The subjective right to cause harm to law-protected interests generally means the possibility of such protection by causing harm within the framework of criminal law relations, guaranteed by the state and limited by law. In the criminal law sense, the central element of a person’s exercise of the constitutional right to defense of his/her rights is the harm to the interests protected by law. The author establishes that the subjective right of everyone to cause damage is a manifestation of the right of a person to ensure the inviolability of his/her rights and legitimate interests, and also the legitimate interests of third parties, society and the State by means of causing damage to other law-protected interests. The author distinguishes such elements of a person’s subjective right to cause harm as the basis for exercising this right and the legal composition of lawful harm in the course of its exercise. The grounds for exercising the subjective right to cause damage by a person are characterized by such features as the existence of the right, its validity and sufficiency. The author concludes that it is inappropriate to enshrine in the draft Criminal Code of Ukraine the right of a person to cause harm, given that the exercise by a person of his or her subjective right to cause harm is inherent in each of the circumstances which exclude the unlawfulness of an act. At the same time, in order to emphasize the importance and basic inherent property of the circumstances that exclude the criminal unlawfulness of an act, it is possible to enshrine the subjective right to cause harm in a general article of the draft law that defines certain features of such circumstances.