SPIRITUAL OR MENTAL: CRIMINAL LEGAL DISCOURSE

The article examines the criminal-law categories "soul" and "mental," which characterize the features of the subjective side in the criminal law of Ukraine, as both lawful and unlawful activities of a person within its norms are inextricably linked with their mental qualities. It is noted that these categories are important for the criminal-law assessment of circumstances that exclude criminal unlawfulness of the act, as well as for analyzing the features of the subjective side of certain crimes against health and life, their qualification, consideration as circumstances mitigating and aggravating punishment, and also its imposition. The genesis of the concept "soul" in criminal law, its established nature, and its relationship with the term "mental," as well as the pervasive application of these categories in current criminal legislation, are examined. It is emphasized that such features of the subjective side of a criminal offense as sanity, diminished sanity, insanity, guilt, motive, purpose, and others are inherently based on the key concept of "mental," and are also defined through the term "intense emotional disturbance." At the same time, the term "soul" serves as a central factor in the latter. Based on the analysis of criminal-law theory, legislation, and judicial practice, it is confirmed that the use of the term "intense emotional disturbance" in criminal law is inappropriate since it does not correspond to the level of modern psychological science. It is concluded that it is impossible to replace the concept of "intense emotional disturbance" with such terms as physiological or cumulative affect, frustration, and others. Based on the results of the research regarding the criminal-law discourse of the categories "soul" and "mental," a conclusion is made in favor of the latter, on the basis of which it is proposed to replace the phrase "intense emotional disturbance" in the Criminal Code of Ukraine with the legislative construction "extraordinary mental state" of a person.