CURRENT ISSUES OF EXEMPTION FROM CRIMINAL LIABILITY OF MILITARY PERSONNEL IN ACCORDANCE WITH ART. 401 OF THE CRIMINAL CODE OF UKRAINE (ON THE EXAMPLE OF ART. 407 OF THE CRIMINAL CODE OF UKRAINE)

Abstract

The article provides a comprehensive scientific analysis of the legal nature of special exemption from criminal liability set out in Article 401 of the Criminal Code of Ukraine in conjunction with the provisions of the General and Special Parts of criminal legislation, as well as the norms of criminal procedural law. The relevance of the study is determined by the growing role of proper legal regulation of relations in the sphere of ensuring the established order of military service in conditions of increased requirements for the state's defense capability and the need to form a unified approach to the application of the relevant norm. The court practice of applying Article 401 of the Criminal Code of Ukraine has been analyzed, and a lack of a unified approach to interpreting its prerequisites, in particular, the sign of “committing a criminal offense for the first time,” has been identified. It is argued that the content of this feature should be determined taking into account the criminal law significance of previously committed acts, the provisions of Articles 32, 33, and 88 of the Criminal Code of Ukraine, and relevant explanations of judicial practice. It has been proven that a person may be recognized as having committed a criminal offense for the first time not only in the absence of prior criminal offenses, but also in the event of their loss of legal significance due to the expungement or removal of a criminal record or exemption from criminal liability. Particular attention is paid to the procedural mechanism for implementing special exemptions, in particular, the obligation to reinstate a person in military service and their arrival at their place of service within the period specified by law. It is substantiated that the fulfillment of these conditions leads to the termination of criminal-legal relations between the state and the person and the state's refusal to implement criminal-legal repression. A conclusion has been reached on the need for doctrinal clarification of the criteria for applying Article 401 of the Criminal Code of Ukraine to ensure the principles of legality, fairness, and unity of law enforcement practice.