Peculiarities of the objective side of the composition of diversion (Article 113 of the Criminal Code of Ukraine)

Abstract

The article is devoted to studying the features of the objective side of the composition of diversion (Article 113 of the Criminal Code of Ukraine) and the formulation of relevant conclusions regarding the current state of this problem.
Within the framework of the scientific study, the author emphasizes that for modern criminal law science, the issue of determining the moment of the end of diversion, which is a criminal offense against the foundations of national security of Ukraine, remains debatable. In particular, as of today, there are at least four approaches to solving this problem: some scholars attribute diversion to the truncated elements of a crime, others to the formal elements, still others to the material elements, and some consider it a crime with a mixed structure.
Based on the current criminal legislation of Ukraine, the author concludes that the legislator emphasizes the multiplicity of explosions, arsons, or other actions. This means that from the objective side, the actions of a person constitute the criminal offense under investigation only if they commit at least two explosions, arsons, or other actions aimed at the mass destruction of people, causing bodily harm or other harm to their health, destroying or damaging objects of important national economic or defense importance, or committing the same number of actions aimed at radioactive contamination, mass poisoning, or the spread of epidemics, epizootics, or epiphytotics. This position of the legislator is not entirely acceptable, as it contradicts judicial practice.
According to the results of the conducted scientific research, the author supports the position that: a) diversion can be committed both in the form of action and in the form of inaction; b) diversion belongs to criminal offenses with a formal component; c) the objective side of the composition of diversion is characterized by both the commission of a set of socially dangerous acts listed in Part 1 of Article 113 of the Criminal Code of Ukraine, and a single fact of any of them, which must also be considered sufficient to qualify this crime as completed, regardless of the occurrence of socially dangerous consequences.