Will and freedom as objects of criminal offenses
The article clarifies the meaning, scope and relationship of the concepts of «will» and «freedom», as well as analyzes the specifics of their criminal legal use. In particular, the cases of the use of these terms in the text of the current Criminal Code of Ukraine (hereinafter referred to as the Criminal Code of Ukraine) were investigated, primarily to denote such an element of the composition of a criminal offense as an object. In the part related to this topic, the provisions of the draft of the new CC, which is being developed by the Working group on the development of criminal law, formed within the framework of the Commission on legal reform under the President of Ukraine, are also analyzed.
It has been established that in the current criminal law of Ukraine, the concept of «will» is used in different meanings: 1) as a synonym for personal freedom, freedom of movement and free choice of place of stay and 2) as one of the functions of the human psyche, which consists primarily of self-control, control by their actions and conscious regulation of their behavior.
In particular, in the first sense, the term «will» is used for:
- designation of such basic types of punishment as «restriction of liberty», «deprivation of liberty», «life imprisonment» (the vast majority of cases of use of this concept in the text of the current criminal law);
- indications of the object of the criminal offense (in the title of Chapter III of the Special Part of the Criminal Code of Ukraine - «Criminal offenses against the will, honor and dignity of a person»);
- a description of a socially dangerous act, as a sign of the objective side of a criminal offense (Articles 146, 146-1, 346, 444 of the Criminal Code of Ukraine).
In the second sense, the analyzed concept is used in the criminal law only in four articles (Articles 127, 168, 289, 314 of the Criminal Code of Ukraine) - to indicate actions that contradict the will of the victim.
A number of changes to the Criminal Code of Ukraine were proposed in order to eliminate such misunderstandings, in particular, the proposal to «rename» the relevant types of criminal punishments was supported, and the need to replace the concept of «will» with the concept of «personal freedom» in those cases when it is used to describe the object and the objective side of criminal offences.