Journal article Open Access

Innovative Understanding of the Essence of Necessary Defense and the List of Other General Legal Circustances which Exclude Anti-Social Activity

A.S. Tuntula, I.O. Islamov

The article deals with innovative understanding of the essence and exhaustive list of general legal circumstances which excludes anti-social activities which should be presented in a certain article of the future Constitutional Code of Ukraine. In this aspect it has been underlined that provided for by the Special Part of Anti-Criminal, Administrative, Labor, De-Facto Property Agreement or De-Jure Property-Agreement Codes of Ukraine or other state the actions lose their anti-social part and turn in legally valid socially useful actions when such circumstances as infliction of damage is present due to the following reasons i) conflict of laws; ii) short term competition of legal statuses of various social subjects; iii) necessary defense; iv) extreme necessity; v) justified risk; vi) arrest of the person who committed a crime; vii) mental or physical effect; viii) compliance with a lawful order or instruction; ix) fulfillment of a special task on prevention, detection and termination of the organized criminal group.  

Attention has been drawn that general legal essence of each form and types of the guilt of the person who committed anti-social action as well as the essence and exhausting list of general legal circumstances which exclude, mitigate or aggravate the guilt of this person should be defined the same way. For that purpose, the notion of the direct intent, indirect intent, tort confidence and negligence should be disclosed together with i) para-accident (when the action causes essential and big damages); ii) insanity; iii) partial insanity; iv) legal and factual mistake; v) alleged circumstance which excludes antisocial activity. 

It is essential to propose a special understanding of circumstances which exclude anti-social activity depending on whether certain or uncertain people commit an action and in the context of necessary defense protect themselves during the existence of the mentioned circumstances.

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