Issue: № 8, 2025
Doi: https://doi.org/10.37634/efp.2025.8.7
The paper comprehensively examines the concepts of «refusal to perform a legal duty» and «omission» in the criminal law of Ukraine, identifying their key differences in terms of form, mechanism of manifestation, temporal characteristics, and psychological content. Based on the analysis of doctrinal approaches, provisions of the Criminal Code of Ukraine, and international legal standards, as well as generalization of national judicial practice, the author substantiates that these forms of socially dangerous behavior, despite certain common features, have fundamentally different legal natures. Refusal is characterized by active, conscious, and categorical will expression, often demonstrative, aimed at deliberate non-performance of a duty established by law or other regulatory act, while omission constitutes passive abstention from actions that a person had both the real opportunity and legal obligation to perform. Special attention is paid to the objective and subjective elements of each form, including the type and degree of will expression, the temporal limits of the act, and the presence or absence of direct intent. The research highlights problematic aspects of law enforcement, particularly in cases where the external manifestations of behavior are similar, leading to difficulties in qualification and risks of misinterpretation. The study emphasizes the importance of unified approaches to interpretation, systematization of court decisions, and the need for legislative definition of these concepts in the Criminal Code of Ukraine. The proposed methodological recommendations and illustrative examples are aimed at improving the uniformity, stability, and predictability of law enforcement practice, ensuring compliance with the principles of legality, justice, and individualization of criminal liability.
Keywords : refusal to perform a legal duty, omission, differentiation criteria, criminal liability, objective and subjective elements, criminal law of Ukraine, judicial practice, international legal standards
References:
1. The Right to Conscientious Objection Under Martial Law in Ukraine by Illia Roskoshnyi - Canopy Forum. Canopy Forum. URL: https://canopyforum.org/2023/08/08/the-right-to-conscientious-objection-under-martial-law-in-ukraine/?utm_source=chatgpt.com
2. Voitiuk T.R. Refusal to perform military service duties (Article 409 of the Criminal Code of Ukraine): certain problems of application. Bulletin of Lviv University of Trade and Economics. Legal Sciences. 2019. № 8. pp. 152–162. URL: http://nbuv.gov.ua/UJRN/nvlkau_2019_8_19 (In Ukrainian).
3. Voitiuk T.R., Satsyk L.A. Refusal to fulfil a legal duty in articles on criminal offences against justice. Problemy Problems of ensuring human rights and freedoms: Proceedings of the 8th International Scientific and Practical Conference (Lutsk, 10 December 2021). Lutsk, pp. 46–48 (In Ukrainian).
4. Zadoia K.P. Special forms of committing a crime under the criminal law of Ukraine: problem statement. Bulletin of Criminal Proceedings, 2015. № 2. pp. 149–159 (In Ukrainian).
5. Verkhovna Rada of Ukraine. Convention for the protection of human rights and fundamental freedoms (with protocols) (European Convention on Human Rights). URL: https://zakon.rada.gov.ua/laws/show/995_004 (In Ukrainian).
6. Verkhovna Rada of Ukraine. Criminal Code of Ukraine. URL: https://zakon.rada.gov.ua/laws/show/2341-14#Text (In Ukrainian).
7. Verkhovna Rada of Ukraine. International Covenant on Civil and Political Rights. URL: https://zakon.rada.gov.ua/laws/show/995_043#Text (Accessed 05 August 2025) (In Ukrainian).
8. Mokhonchuk B., Kovtunenko O. Alternative service for reasons of conscience: international standards, case law and regulatory challenges in Ukraine. Ukrainian Journal of Constitutional Law. 2025. № 1. pp. 44–55. URL: https://doi.org/10.30970/jcl.1.2025.5 (In Ukrainian).
9. Orobets K.M. Evasion of enlistment for military service under contract (Article 336-2 of the Criminal Code of Ukraine): characteristics of the criminal offence composition. Legal Scientific Electronic Journal. 2024. № 8. pp. 354–358 (In Ukrainian).
10. Peculiarities of appealing decisions, actions or inaction of an investigator/inquirer/prosecutor during pre-trial investigation. URL: https://www.hsa.org.ua/blog/osoblivosti-oskarzennia-risen-dii-ci-bezdiialnosti-slidcogodiznavacaprokurora-pid-cas-dosudovogo-rozsliduvannia?utm_source=chatgpt.com (In Ukrainian).
11. Verkhovna Rada of Ukraine. On the practice of consideration by courts of cases on complaints against decisions, actions or inaction of state authorities, local governments, legal entities, officials and civil servants in the field of administrative activities that violate the rights and freedoms of citizens. URL: https://zakon.rada.gov.ua/laws/main/v0013700-97?utm_source=chatgpt.com#Text (In Ukrainian).
12. Udovychenko O.V. Criminal liability for failure to comply with restrictive measures, restrictive orders or failure to complete a program for offenders: diss. … PhD in legal sciences. Kropyvnytskyi, 2023. (In Ukrainian).