Subjective Aspect Of Non-Compliance With The Agreement On Reconciliation As An Element Of The Criminal Offense

  • V.I. Potiak
Keywords: non-fulfillment of the agreement on reconciliation, direct intent, indirect intent, criminal sel-confidence, criminal negligence.


The article is devoted to the analysis of the subjective aspect of non-compliance with the agreement on reconciliation as an element of the criminal offense. This problem is considered on the basis of existing theoretical concepts and legal precedents.

Guilt as the main feature of the subjective aspect of a criminal offense concerning an act is characterized by intention. Because we are in the position of expediency to transform art. 389-1 of the Criminal Code of Ukraine into a criminal offense with the material composition, it should be emphasized that the type of intentions concerning the act will not be integral, but it is advisable to consider possible forms of guilt in terms of consequences in the form of substantial harm.

Ranking of types of intentions is realized on the basis of the characteristics and the ratio of intellectual and volitional characteristics. Unlike the act, concerning the consequences it is expedient to allocate types of intent. In the event that a person will foresee socially dangerous consequences, the emergence of which will lead to non-fulfillment of the agreement on reconciliation and will want their offensive, then, of course, there will be a direct intent. If the person provides for socially dangerous consequences of non-fulfillment of the agreement on reconciliation, however, although they will not want their onset, but will realize the possibility of their existence, then it will be a question of indirect intent.

Regarding the types of negligence, the establishment of criminal negligence or self-confidence will depend on whether the content of significant harm will be recognized. If one maintains that damage is significant if it involves material damage, which exceeds the non-taxable minimum income of citizens hundred times more , then one can foresee situations in which a people will envisage the possibility of such socially dangerous consequences of their acts, but they reluctantly count on their distraction. Accordingly, carelessness will manifest itself in the form of criminal negligence.

However, it is difficult to assume that people do not comply with the agreement on reconciliation, which clearly defines its obligation, knowing that it is a significant harm, can not predict the possibility of occurrence of socially dangerous consequences of its act, despite what it should and could predict. Accordingly, the careless form of blame for the consequences of non-compliance with the agreement on reconciliation will be criminal suspicion.

Consequently, in relation to the consequences, the guilt may be characterized by intentional or careless form of guilt. In this case, the intent may be direct and indirect, and carelessness will be manifestation of a criminal self-confidence or negligence.

Considering this logic of the vision of modernization of art. 389-1 of the Criminal Code of Ukraine it is considered expedient to exclude the word «intentional» from the title of this article and from the disposition of the criminal law.

Such features as motive, purpose, and emotional state do not affect the qualification of the committed act, but must be established and proved. Accordingly, these features and their characteristics should be taken into account when imposing punishment or the application of other criminal-law measures.