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DOI 10.37749/2308-9636-2021-4(220)-3

Kuchynska O. P., Shchyhol O. V. Criminal law qualification of an act under Article 190 of CC of Ukraine (fraud) in case of absence of the property owner (the victim) and damage caused to them: theoretical aspects and law enforcement challenges.

Correct and accurate criminal law qualification is a necessary condition for achieving the objectives of criminal law, a guarantee of the criminal proceedings effectiveness, feasibility and timeliness of procedural actions carried out within it. Nevertheless, making mistakes in this area and insufficient attention to qualification might lead to numerous negative or even detrimental consequences: unjustified criminal prosecution of a person, formation of an incorrect legal position by the prosecution and, consequently, irrational workload of criminal justice authorities, futility (uselessness) of criminal proceedings, avoidance of responsibility by the guilty or imposition of either too lenient or vice versa too severe (disproportionate) punishment on them, and the victims being left in an insecure state etc.

Thus, the article covers the issues of criminal law qualification of fraud and determination features of its objective aspect in case of absence of the property owner (the victim) and damage caused to them.

It is concluded that: 1) Article 190 of CC of Ukraine does not specify on which proprietary right the property should be held, being subject matter of the offence. Subject of crime (the guilty) is not obliged to realize this either. Moreover, property could exist without any legal title, although it does not mean the absence of fraud; 2) for criminal law qualification under Article 190 of CC of Ukraine others’ property should be recognized any property which does not belong to the guilty party. In this case it does not matter who is the property owner, or even whether the property has an owner at all (ownerless). The exception is qualification of an act under part 2 of Article 190 of CC of Ukraine, since it involves taking into account the property status of a particular person (the victim). At the same time for criminal law qualification of an act under part 1, 3 or 4 of Article 190 of CC of Ukraine the existence of property owner (the victim) and causing damage to them is not required. The above-mentioned is not a mandatory feature of the objective aspect of fraud.

Key words: criminal law qualification, qualification of an act, Article 190 of CC of Ukraine, fraud, property owner absence, victim absence, damage absence, others’ property.

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