Уточнення понять «ухилення» та «запобігання ухиленню» від відбування покарань, не пов’язаних з позбавленням волі

Abstract

У статті зроблено спробу уточнити поняття «ухилення» та «запобігання ухиленню» від відбування покарань, не пов’язаних з позбавленням волі, зважаючи на сучасні реалії функціонування органів пробації України. Виокремлено характерні особливості досліджуваних понять. Сформульовано пропозиції щодо вдосконалення чинного законодавства у частині запобігання ухиленню від відбування покарань, не пов’язаних з позбавленням волі. Considering the fact, that the lack of operative and effective measures to reacting to avoidance from serving sentences as well as the simple and obvious essence of this phenomenon leads to the deepening of the problem and the emergence of new forms of it which are constantly being modified, we consider it to be necessary to distinguish and critically analyze the main approaches within which scholars interpret the concept of "avoidance" and "preventing avoidance" from serving sentences not related to imprisonment; to reveal the specific features of the investigated legal institute and to clarify the formation of the definition of criminal law definition being studied. It is determined that there is no unity among criminologists in understanding the content of basic terminology that is used in studying. It is found out that in criminological science there are such stable terms as: "preventive care", "preventing", "termination", "prevention", "counteraction". The concept of "prevention" was introduced into science with the adoption of the Criminal Code of Ukraine in 2001, and in our opinion it is the most acceptable, since its lexical meaning (to take away in advance, to eliminate) most fully reveal the content of the activities of probation bodies. During the research, objective and subjective features of a crime under Article 389 of the Criminal Code of Ukraine were distinguished. It was proved that avoidance from serving sentences can be done through action and inaction. It was mentioned that the responsibility for avoiding serving sentences only can be applied to a person with the characteristics of a special subject, that is, a person against whom a legal court’s decision (decree) has been made. It was stated that the subjective side of avoidance from serving sentences characterized by direct intent, because a perpetrator, by having performed such actions, realized that he was completely avoiding from serving sentence or continued to avoid it afterwards issuing a written warning by an employee of a probation body, thus anticipated and desired negative consequences of such unlawful behavior. According to the results of the research, the attempts to clarify such terms as "avoidance" and "preventing avoidance" from serving sentences were made in the article. Characteristic features of the studied concepts were distinguished. Proposals concerning improvement the current legislation in the field of preventing avoidance of serving sentences were formulated.