Criminal liability for illegal mining: analysis of legislative novelties
/ 0
- Details
- Category: Content №5 2022
- Last Updated on 30 October 2022
- Published on 30 November -0001
- Hits: 2998
Authors:
R.O.Movchan, orcid.org/0000-0003-2074-8895, Vasyl Stus Donetsk National University, Vinnitsa, Ukraine, e-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.
O.O.Dudorov, orcid.org/0000-0003-4860-0681, Taras Shevchenko National University of Kyiv, Kyiv, Ukraine, e-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.
D.V.Kamensky, orcid.org/0000-0002-3610-2514, Berdyansk State Pedagogical University, Berdyansk, Ukraine, e-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.
A.A.Vozniuk, orcid.org/0000-0002-3352-5626, National Academy of Internal Affairs, Kyiv, Ukraine, e-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.
V.V.Babanina, orcid.org/0000-0003-4173-488X, National Academy of Internal Affairs, Kyiv, Ukraine, e-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.
Naukovyi Visnyk Natsionalnoho Hirnychoho Universytetu. 2022, (5): 116 - 121
https://doi.org/10.33271/nvngu/2022-5/116
Abstract:
Purpose. Critical analysis of the criminal prohibition provided by Article 240 of the Criminal Code of Ukraine, identification of its shortcomings, development of proposals for their elimination.
Methodology. The system of philosophical, general scientific and specific-scientific methods and approaches that provided for objective analysis of the subject (analysis, synthesis, induction, deduction, comparison, generalization, abstraction, sociological, statistical, formal-logical).
Findings. The shortcomings of the revised Article 240 of the Criminal Code of Ukraine, in particular, the uncertainty on the issue of the minimum cost of illegally mined minerals of national importance for recognizing an act as criminally unlawful, the lack of differentiation of criminal liability for illegal mining of minerals of national importance depending on the size (value) of the extracted items, the creation of an imbalance between the degree of severity of penalties in the form of a fine, enshrined in different parts of the prohibition under consideration, the groundlessness of constructing a sanction of Part 3, Article 240 of the Criminal Code of Ukraine as non-alternative.
Originality. The authors are the first in the doctrine of criminal law of Ukraine to carry out a comprehensive critical understanding of the updated version of the provision on the regulation of criminal liability for violation of the rules for the protection or use of subsoil, illegal mining, which made it possible to develop research-based recommendations for improving domestic criminal law.
Practical value. Based on the results of the article, specific proposals addressed to domestic parliamentarians have been developed, which can be taken into account in the process of further lawmaking to update relevant provisions of the Criminal Code of Ukraine. It has been argued that in the improved Article 240, the minimum value of illegally mined minerals of national importance should be determined in order to recognize the act as criminally unlawful, and the same criteria for the crime of illegal mining of minerals of local and national importance should be fixed. It has been substantiated that criminal liability for illegal mining of minerals of national importance should be differentiated depending on the size (value) of the mined items. It has been proven, including through references to law enforcement materials, that in the relevant sanctions, firstly, along with imprisonment for a certain period, an alternative main type of punishment in the form of a fine should be indicated, and secondly, the imbalance between the degree of severity of punishments, provided for in different parts of the provision under consideration, should be eliminated.
Keywords: minerals, subsoil, subject of crime, illegal mining, criminalization, aggravating elements, punishment, sanctions
References.
1. Dudorov, O.O., Komarnytskyi, M.V., & Kalmykov, D.O. (2016). Criminal liability for illegal mining in Ukraine: monograph. Sumy: RVV LDUVS im. E.O.Didorenka.
2. Batyrgareieva, V.S., Babenko, A.M., & Kaija, S. (2019). Corruption in medical sphere of Ukraine: Current situation and ways of prevention. Wiadomoci Lekarskie, 7(9cz2), 1814-1821. Retrieved from https://pubmed.ncbi.nlm.nih.gov/31622272/.
3.Cherniavskyi,S.S., Holovkin,B.M., Chornous,Y.M., Bodnar,V.Y., & Zhuk,I.V. (2019). International cooperation in the field of fighting crime: Directions, levels and forms of realization. Journal of Legal, Ethical and Regulatory Issues, 22(3), 1-11.
4. Golovkin, B., & Marysyuk, K. (2019). Foreign experience in countering (preventing) organized crime in the financial system: Special law enforcement bodies and strategic priorities. Baltic Journal of Economic Studies, 5(3), 25-36. https://doi.org/10.30525/2256-0742/2019-5-3-25-36.
5. Lutsenko, Yu.V. (2020). Combating crime in modern conditions. Socio-legal studies, 1(7), 79-84.
6. Krupka, Ya.A., Kraliuk, M.O., Kostenko, T.V., & Zavialova,O.L. (2021). Crimes in the field of protection and rational use of subsoil: pre-trial investigation, forensic examination. Expert: paradigms of legal sciences and public administration, 3, 87-99.
7. Kirin, R. (2017). Legal regime of minerals of local significance: genesis, problem, prospects. Entrepreneurship, Economy and Law, 7, 46-50.
8. Lysiak, O.I. (2021). Legal analysis of issues related to subsoil use in Ukraine. Collection of scientific works of H.S. Skovoroda Kharkiv National Pedagogical University Pravo, 33, 46-51. https://doi.org/10.34142/23121661.2021.33.06.
9. Zarichanskyi, B., & Borysenko, O. (2018). Specifics of criminal law counteraction to violation of rules of protection and use of subsoil. Bulletin of the Prosecutors Office, 7, 54-61.
10. Review of case law of the Criminal Court of Cassation within the Supreme Court (current practice). Decisions entered to the USRCD in March 2021 (2021). Retrieved from https://supreme.court.gov.ua/userfiles/media/new_folder_for_uploads/supreme/Oglyad_KKS_03_2021.pdf.
11. Netesa, N.V. (2013). Criminal liability for violation of the rules of protection or use of subsoil: monograph. Kharkiv: Pravo.
12. Panov, M.I., Kharytonov, S.O., & Haltsova, V.V. (2021). Object of criminal offense: modern interpretations. Journal of the National Academy of Legal Sciences of Ukraine, 28(4), 262-269. https://doi.org/10.37635/jnalsu.28(4).2021.262-269.
13. Maksimentsev, M.H. (2019). Combating crime in the field of subsoil use: monograph. Kharkiv: Pravo.
14. Stelmakh, M.V. (2017). The problem of qualification of illegal mining of minerals of local importance. Young scientist, 12, 323-327. Retrieved from http://nbuv.gov.ua/UJRN/molv_2017_12_77.
15. Movchan, R.O. (2020). Criminal liability for crimes in the field of land relations: legislation, doctrine, practice: monograph. Vinnytsia: TOV Tvory.
16. Movchan, R.O. (2020). Criminal Law Counteraction to Amber Offenses: Analysis of the Latest Legislative Novels. Scientific Herald of the National Academy of Internal Affairs, 4, 53-60. https://doi.org/10.33270/01201174.53.
17. Dudorov, O.O., & Movchan, R.O. (2020). About directions of improvement of the mechanism of criminal and legal protection of environment (to attention of developers of the new Criminal code of Ukraine). Bulletin of the Association of Criminal Law of Ukraine, 1, 92-125. https://doi.org/10.21564/2311-9640.2020.13.204733.
18. Ponomarenko, Yu.A. (2020). General theory of Criminal Offenses punishability determining: monograph. Kharkiv: Pravo.
19. Turlova, Yu.A. (2018). Ecological crime in Ukraine: criminal law and criminological principles of counteraction. monograph. Kyiv: Znannia.
20. Turlova, Yu.A. (2015). Problems of penalization of crimes against the environment in Ukraine. Journal of National Jurisprudence: Theory and Practice (National Legal Journal: Theory and Practice), 2/1(12), 120-125.
Newer news items:
- The depiction of cybercrime victims using data mining techniques - 30/10/2022 01:53
- Monitoring as a component of the course “Life safety and labor protection” - 30/10/2022 01:53
- Comparative analysis of efficiency criteria for investment projects - 30/10/2022 01:53
- A new approach on AI application for grounding resistor prediction in underground mines of Vietnam - 30/10/2022 01:53
- Investigation of the influence of hyperthermia and soil pollution with the petrochemicals on test objects using the method of mathematical planning - 30/10/2022 01:53
- Efficiency assessment of water resources management and use by simplified indicators - 30/10/2022 01:53
- Ecologization of market behavior of consumers and management business strategies - 30/10/2022 01:53
- Entrepreneurial structures of the extractive industry: foreign experience in environmental protection - 30/10/2022 01:53
- Dichotomy of legal provision of ecological safety in excavation, extraction and use of coal mine methane - 30/10/2022 01:53
- Planning models of sanitary protection zones around mode-forming objects - 30/10/2022 01:53
Older news items:
- Legal security of environmental safety under the conditions of marital state in Ukraine - 30/10/2022 01:53
- A risk of pulmonary diseases in miners while using dust respirators - 30/10/2022 01:53
- Problems of development of innovative power supply systems of Ukraine in the context of European integration - 30/10/2022 01:53
- Estimation and forecasting of carbon dioxide emissions from coal-fired thermal power plants in Ukraine - 30/10/2022 01:53
- Mathematical simulation of autonomous wind electric installation with magnetoelectric generator - 30/10/2022 01:53
- Experimental evaluation of fire hazard of lithium-ion battery during its mechanical damage - 30/10/2022 01:53
- Substantiating the methods for calculating the split cylindrical drums of mine hoisting machines with increased rope capacity - 30/10/2022 01:53
- Load of the wagon-platform for transportation of bulk cargoes - 30/10/2022 01:53
- Impact of weak electromagnetic fields on the properties of coal substance - 30/10/2022 01:53
- Use of natural phosphate wastes in the manufacture of construction bricks - 30/10/2022 01:53
