GENESIS OF CRIMINAL LIABILITY FOR THE SUBSTITUTION OF A CHILD WITHIN DOMESTIC LEGISLATION

Abstract

The authors of the article have analyzed the main sources of criminal law of certain periods of development and formation of Ukrainian statehood and law. The emphasis has been made on considering these sources from the point of view of the presence of such a criminal act as the substitution of a child in them. The study and interpretation of regulations of the past that also consolidated the norms of criminal law, since their origin acting on the territory of our country for certain periods of its development, were the interest of a wide range of scholars. They are: Boiko I. J., Kudin S. V., Tykhomyrov M. N., Kalachov N. V., Vladymyrskyi-Budanov M. F., Malynovskyi I., Kisiliuk E., Hertsenzon A. A., Poznyshev S. V., Hrozovskyi I. M. and others. The issue of criminal liability for the substitution of a child was pretty tenuous considered by Ye. V. Datsenko in his dissertation. However, none of the researchers who dealt with the issues of the substitution of a child as an individual corpus delicti, did not consider the historical and legal aspect of this crime, besides the above-mentioned author, as well there was not any paper devoted to this issue. The article’s objective is to study, analyze and compare the sources of criminal law of Ukraine at certain stages of its state formation and legal development for the presence of such a socially dangerous act as the substitution of a child. The substitution of a child is very dangerous crime that infringes on the rights of children, their parents and relatives and seriously prejudice. Unfortunately, the social danger of the crime, in our opinion, is undervalued by the legislator. This fact is indicated, in particular, by such data that most of the considered crimes remain latent or are solved after rather long period of time. Therefore, studying the experience of criminal acts of the past on this issue is important for the effective application of the criminal and legal norm and development of specific recommendations on its improvement. Thus, historical analysis has always been, is and will be a reliable mean of cognition the essence of the phenomena or certain concepts. Special attention of the paper is paid to the research of various sources of written and common law, starting from the norms of customary law of the ancient Russian state and up to the Criminal Code of Ukraine of 2001. It is concluded that the development of the formation of criminal liability for the substitution of a child within the domestic legislation must be considered in close interrelation not only with the source of law of a certain period, but also with the form and type of Ukrainian state existed at a certain stage of its development. Moreover, not only national sources of law, but also of those states comprising Ukraine, should be researched. It has been researched and concluded that for the first time the substitution of a child was mentioned in the “Code on Criminal and Correctional Punishments” in 1845. Further on, this norm acquired some changes and was developed in the regulations differently, until the present day. Until now there was no any norm intended to protect public relations from the substitution of a child. But there were certain norms that were most close to this act or covered this corpus delicti.