Terms «criminally unlawful activity» and «criminal activity»: relevant questions of interpretation and application practice

The article provides a systematic analysis of the terms «criminally unlawful activity» and «criminal activity», which are used in the Criminal Code of Ukraine. It is noted that the both concepts, despite their wide regulatory application, remain legislatively undefined, which creates risks of ambiguous their interpretation and complicates practice of their application. It is proved that the term «criminally unlawful» is broader in meaning than «criminal», as it covers both crimes and misdemeanors. At the same time, the analysis of the legislation brings to the conclusion on terminological inconsistency in their use. It has been established that the terms «criminally unlawful activity» and «criminal activity» function as cross-cutting legal categories. The application of these terms varies depending whether it is a separate individual, an organized group or a criminal organization. Analysis of the provisions of the Criminal Code of Ukraine (Articles 27, 28, 43, 66, 255-1, etc.) made it possible to identify the characteristic features of these terms, in particular: intentional nature; coverage of one or more completed or incomplete torts; the possibility of their commission both by action or inaction; determination or undetermination of the object of the encroachment. Special attention is given to the analysis of judicial practice related to the application of Art. 255-1 of the Criminal Code of Ukraine on criminal influence. In this Article, the term «criminal activity» is considered as an object of the criminal influence. Different approaches of courts to the issue of prejudicial nature and identification of the subject’s intention on criminal activity are revealed. It is argued that the current wording of Article 255-1 allows for a certain deviation from the general principle of subjective attitude to guilt. However, the inquiring of specific actions that form the content of criminal influence remains a mandatory condition.