THE SUBJECT OF THE CRIMINAL OFFENSE PROVIDED FOR IN ART. 204 OF THE CRIMINAL CODE OF UKRAINE: PECULIARITIES OF THE DEFINITION IN LAW ENFORCEMENT

Abstract

The article considers theoretical and practical problems of determining the subject of illegal manufacture, storage, sale or transportation for the purpose of selling excisable goods, provided for by Art. 204 of the Criminal Code (CC) of Ukraine. Using the dogmatic method, the prerequisites of scientific intelligence of criminal liability for illegal trafficking in excisable goods were investigated. It is established that in judicial practice and in the doctrine of criminal law there are two approaches to the interpretation of the subject of a criminal offense (wide – under the subject of an offense is understood not only excisable goods, but also their analogues; narrow – the subject of the offense is understood only as excisable goods). Analysis of lawmaking in the improvement of Art. 204 of the Criminal Code of Ukraine allowed to draw a conclusion about the failure to solve in the future by legislators the problem of certainty of the subject of a criminal offense. The study made it possible to conclude that the design of Part 1 of Art. 204 of the Criminal Code of Ukraine on the definition of the subject of a criminal offense (inconsistency in the definition of the subject in the title of Article 204 of the Criminal Code of Ukraine and in the disposition of Part 1 of Article 204 of the Criminal Code of Ukraine). It is established that in order to solve this criminal legal problem in the doctrine of criminal law, scientists propose various options for legislative changes to Art. 204 of the Criminal Code of Ukraine regarding the definition of the subject of a criminal offense: subjects that mimic the relevant excisable goods (alcohol or their surrogates); certain (specific) types of goods; alcoholic or alcoholic beverages; analogues of excisable goods. The scientific position is supported that the subject of a criminal offense under Part 1 of Art. 204 of the Criminal Code of Ukraine should have the following signs: 1) the illegality of the manufacture or release on the commodity market or the sale of goods; 2) absence of excise tax in its price. Determined by the subjects of a criminal offense: illegally manufactured excisable goods (Part 1 and Part 2 of Article 204 of the Criminal Code of Ukraine) and illegally manufactured excisable goods which pose a threat to human life and health (Part 3 of Article 204 of the Criminal Code of Ukraine).