Problems of Regulation of Combat Immunity in the Criminal Law of Ukraine

Abstract

Criminal law aspects are an important part of the discourse on the proper regulation of combat immunity. Insufficient attention is paid to a) the subject composition of combat immunity, b) the reasons and signs of the circumstance provided for in Art. 43-1 of the CC, c) the correlation of combat immunity with the immunity of a combatant, general and special types of immunity from criminal liability, etc.

This article`s purpose is to formulate and argue the author's vision of overcoming the problems of criminal law regulation of combat immunity, which is a prerequisite for improving the provisions and the Special Part of the CC.

The article provides an analysis of legislation, draft laws №13146, 13149, professional literature on combat immunity as a component of legal support of national security of Ukraine and a criminal law concept.

The study distinguishes between combat immunity and combatant immunity. It is shown that combat immunity is normatively extended to all categories of persons involved in repelling or deterring aggression by other countries. It is inappropriate to distinguish 'civilian combat immunity' and that it is inappropriate to consider combat immunity in the context of criminal immunities. It is emphasised that combat immunity cannot be considered as a form of immunity from criminal liability. The author argues that such immunity is an independent circumstance which excludes the criminal wrongfulness of an act.

The author concludes that in clarifying the concept of combat immunity, it is advisable to focus on due diligence and the principle of proportionality. The updating of the provisions of the CC of Ukraine should include the specification of the name of the circumstance which excludes the criminal unlawfulness of an act, the determination of the circle of persons to whom this circumstance applies, and the indication of reasonable care and the principle of proportionality.