The Problem of the Criminological Supporting of Criminalization and Decriminalization in the Criminal Law of Ukraine

Criminalization and decriminalization composes the process of lawmaking, in the course of which the state’s criminal law policy is realizing. The character of this process isn’t spontaneous and subjective. It is consistent. That’s why this process should be based on the adequate representation of the potential or real social danger of acts, which are criminalizing. This can be accomplished by conducting the preliminary criminological researches. The aim of this paper is to analyze basic theoretical conditions of the essence of crime and its notion for conducting criminological researches. The results of such researches will conduce criminological supporting of the processes of criminalization and decriminalization. During the human’s history there were some efforts by scientists (R. Garofalo, E. F erri, G. T ard, V. Spasovych and others) to define the common notion of crime for all times and nations. Such notion of crime, in its adherents’ opinion, should become a model for criminalization
and decriminalization. But such idea has refusing and still is refusing by the doctrine of the criminal law, because to create the common notion of crime isn’t possible. And it is right. However, the analysis of the previous national legislation showed that from time to time instead entrenching the common notion of crime in it, there was formalized its main quality – the social danger (e. g. Article 7 of the Criminal Code of Ukraine, accepted in 1927). In the next Criminal Codes of Ukraine (accepted in 1960 and 2001) there was the socially dangerous act, described in these codes, admitted as a crime. The notion of a «social danger» didn’t contain in these codes. For establishing the character and degree of the social danger of some or other acts, which infringes personal, public and state interests, it is recommended to conduct criminological researches for receiving the necessary information (e. g. spread of such crimes, the reasons of its arising, criminal’s personality etc.). Besides, as a result of the criminological researches, there can be discovered socially-dangerous phenomena, which are kind of «hiding» at the back of its traits, e. g. vandalism, domestic violence, pedophilia, counterfeit products and others. The data as for its socially-dangerous potential can be getting only by the way of the criminological researches. Conclusions of the research. On the base of analysis the crime’s both definitions: made by scientists and enshrined in the national legislation during 19–21 centuries, the author offer to change partly the text of Art. 11 of the Criminal Code of Ukraine and embody it like: (1) The deed (act or omission to act) is socially danger, when it really inflicts or will inflict an essential damage to a person, society or state and that would be accepted as a crime only as a result of its criminalization. (2) An individual or a legal entity would response for committing a deed just if it set by this Code. The author also highlights, that the problem of the criminological supporting of criminalization
and decriminalization in the Criminal Law of Ukraine isn’t develop enough. The scientific researches of realization of the scientific principle of conducting the criminalization and decriminalization, penalization and depenalization will exercise by criminologists.