Втрата та зіпсування майна як ознаки складу кримінального правопорушення, передбаченого ст. 413 Кримінального кодексу України

The article is devoted to the study of the concepts of loss and damage to property as mandatory elements of a criminal offence under Article 413 of the Criminal Code of Ukraine. The author establishes that loss of property is the withdrawal of property from a person’s possession, as evidenced by the fact that a person cannot perform any actions with respect to the property or use it at his/her own discretion. It is substantiated that loss should be considered both when the property leaves the possession of a serviceman forever and when the property leaves his possession for a certain period of time and then returns to the rightful owner. The author proves that the loss of property within the meaning of Article 413 of the Criminal Code of Ukraine occurs both when it ceases to exist as such from the moment of leaving the possession of a serviceman, and when the property is transferred to the possession of an unauthorised person, or when there is no information about its whereabouts. The author establishes that damage to property under Art. 413 of the CC of Ukraine consists in bringing it to a state which makes it impossible or restricts the possibility of its intended use. It is substantiated that when distinguishing between loss of property and its damage, one should proceed from the fact that whether the property has left the possession of a serviceman; if an item of property has been brought to a state of complete unsuitability for its intended use and cannot be restored, but remains in the possession of a person, there is not a loss but damage to property. The author argues that the concept of property damage is not identical to the concept of destruction of property, or the concept of damage to property, or their combination. It covers all cases of damage to property, as well as those cases of destruction of property in which the property continues to exist, cannot be restored, and in this state continues to be in the possession of a person. Loss of property covers only those cases of destruction of property when the property ceases to exist as such. The author establishes that the scope of the concept of loss of property also includes cases of loss of property and seizure of such property by unauthorised persons. It is proved that when amending Article 413 of the Criminal Code of Ukraine, as well as when constructing similar provisions within the new codification of criminal law, it is possible to use the wording ‘loss, destruction or damage’, but in the context of the current Criminal Code of Ukraine, such a solution requires refusal to indicate the mandatory act - violation of the rules of property storage.