| (2019) 1 Visn. Nac. akad. prokur. Ukr. 35–49 | |
| https://doi.org/10.34285/visnyknapu2019.01.035 | |
| Title of the article | Open List in Articles of the Special Part of the Criminal Сode of Ukraine and the Features of Their Interpretation |
| Author(s) | ZOIA ZAHYNEI Doctor of Law, Docent, head, department of advanced training of prosecutors on corruption prevention, Institute for Continuing Professional Development, National Prosecution Academy of Ukraine, Kyiv, Ukraine, trostuk@ukr.net |
| Short title of the journal (ISSN) |
Visn. Nac. akad. prokur. Ukr. |
| Year | 2019 |
| Issue | 1 |
| Pages | [35–49] |
| Language | Ukrainian |
| Abstract | The study of the problem of normative techniques and the interpretation of the criminal law of Ukraine is becoming urgent. More and more scholars are paying attention to what tools of standard-setting techniques are appropriate for the legislator during the creating of articles of the Special Part of the Criminal Code of Ukraine (Criminal Code of Ukraine) and how they affect the interpretation of the criminal law of Ukraine. One of the means of normative techniques actively used in articles of the Special Part of the Criminal Code of Ukraine is open lists, the presence of which affects the results of the interpretation of criminal law. However, the problem of clarifying such lists is not sufficiently developed in the theory of criminal law, and in the law enforcement there are numerous errors regarding the inclusion of open lists during the criminal-legal qualification of acts. Therefore, the interpretation of these lists requires the attention of both academics and practitioners. The purpose of the article is to determine the peculiarities of the interpretation of open lists in the articles of the Special Part of the Criminal Code of Ukraine. To achieve this goal it is considered necessary to solve the following tasks: 1) to distinguish the essential features of the concept of “open lists in the articles of the Special Part of the Criminal Code of Ukraine” and to offer its doctrinal definition taking into account approaches in the theory of criminal law; 2) to find out the types of open lists in the articles of the Special Part of the Criminal Code of Ukraine; 3) to propose the main and additional rules for the interpretation of open lists in the articles of the Special Part of the Criminal Code of Ukraine; 4) to study the features of the interpretation of open lists in the articles of the Special Part of the Criminal Code of Ukraine, ending with the general notion of “other grave consequences”. As a result of the study, it was found that under the open lists in the articles of the Special Part of the Criminal Code of Ukraine it is proposed to understand one of the methods of abstract-casuistic formulation of the text of the criminal law of Ukraine, which is indicative or conditional-oriented and consists of the list of units (specifying and generalizing terms). It is proposed to distinguish the following basic rules for the interpretation of open lists in the articles of the Special Part of the Criminal Code of Ukraine: the value of specific features affects the definition of the content of the generalization concept; the meaning of the generalization concept must be taken into account when establishing the meaning of specific features. Also, an additional rule is proposed for the interpretation of open lists in the articles of the Special Part of the Criminal Code of Ukraine, namely: if the open lists contain different specifying terms, but the generalizing notion is identical in content (although it may differ in form), then all the concrete terms should be covered by the scope of the corresponding generalization concept. The features of the interpretation of open lists in the articles of the Special Part of the Criminal Code of Ukraine are shown on the example list, which ends with the general term “other aggravating consequences”. The author has come to the following conclusions: if other aggravating consequences are combined only with such harm, such as death of a person or death of people, as well as damage to the victim’s health (bodily harm, infertility, poisoning, mass diseases of people), then the volume of this concept covered only by harm to the victim; if other grave consequences are combined not only with the harm done to the victim’s life (for example, with causing property damage), then the scope of such a concept may be covered by harm of any nature; the death of people is the death of several (at least two) victims; mass diseases of people is a mass spread of an infectious or other illness among the population of the corresponding territory for a short period of time. |
| Keywords | open list; interpretation; norm-making technique; other aggravating consequences; the death of people. |
| References | REFERENCES List of legal documents Legistation 1. Kryminalnyi kodeks Ukrainy [The Criminal Сode of Ukraine]: Zakon Ukrainy [Law of Ukraine] vid 5 kvitnia 2001 roku № 2341-III. URL: (accessed: 02.02.2019) (in Ukrainian). Cases 2. Pro praktyku zastosuvannia sudamy kryminalnoho zakonodavstva pro povtornist, sukupnist i retsydyv zlochyniv ta yikh pravovi naslidky [On the Practice of Criminal Courts’ Application of the Repeat, Aggregate and Recurrence of Crimes and Their Legal Consequences]: postanova Plenumu Verkhovnoho Sudu Ukrainy [resolution of the Plenum of the Supreme Court of Ukraine] vid 4 chervnia 2010 roku № 7. URL: (accessed: 02.02.2019) (in Ukrainian). Bibliography Authored books 3. Borysov V ta Pashchenko O, Zlochyny proty bezpeky vyrobnytstva: poniattia ta vydy. Kryminalna vidpovidalnist za porushennia pravyl yadernoi abo radiatsiinoi bezpeky: monohr. [Crimes against the Safety of Production: Concepts and Types. Criminal Liability for Violation of the Rules of Nuclear or Radiation Safety: monogr.] (SPD FO Vapniarchuk N.M. 2006) 462 (in Ukrainian). 4. Navrotskyi V, Osnovy kryminalno-pravovoi kvalifi katsii: navch. posib. [Fundamentals of Criminal Legislation: teach. manual] (Iurinkom Inter, 2006) 704 (in Ukrainian). 5. Vas’kovskij E, Rukovodstvo k tolkovaniju i primeneniju zakonov (dlja nachinajushhih juristov) [Guide to the Interpretation and Application of Laws (for novice lawyers)] (Izd. Br. Bashmakovyh, tipo-litografija tovarishhestva I.N. Kushnerev i Ko1913) 96–99 (in Russian). Edited books 6. Melnyk M ta Khavroniuk M (ed), Naukovo-praktychnyi komentar Kryminalnoho kodeksu Ukrainy [Scientific and Practical Commentary of the Criminal Code of Ukraine] (7-me vyd, pererobl ta dopov, Yurydychna dumka 2010) 1288 (in Ukrainian). Journal articles 7. Krainyk H, ‘Shchodo zmistu poniat “zahybel liudei” ta “inshi tiazhki naslidky” yak obtiazhuiuchykh obstavyn, zaznachenykh u ch. 2 st. 272 KK Ukrainy’ [‘On the Effortlessly Understand the “Deadlift of People” and “All the Hard Things” as Aggravating Circumstances Referred in Part 2 of Art. 272 СС of Ukraine’] (2011) 2 Visnyk Akademii pravovykh nauk Ukrainy 241–49 (in Ukrainian). |
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