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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF UKRAINE

of November 6, 2009 No. 10

About court practice in cases on property offenses

For the purpose of realization of the constitutional guarantees of protection of all patterns of ownership against criminal encroachments, identical and correct application by courts of the legislation on responsibility for property offenses, prevention of miscarriages of justice by hearing of cases of this category Plenum of the Supreme Court of Ukraine POSTANOVLYAET to make to courts such explanations:

1. Pay attention that in cases on property offenses courts shall how to ascertain guilt of defendants and to appoint by it punishment, necessary and sufficient for their correction and the prevention of new crimes, and to take the measures provided by the law for realization of the rights of the victims to compensation of the caused damage.

2. Subject of property offenses is the property which has the determined cost and is stranger for the perpetrator: things (movable and immovable), money, valuable metals, securities and so forth, and also right to property and action of property nature, electrical and heat energy.

If for plunder, taking, assignment, destruction, damage and other acts of rather certain property, objects or means (for example, firearms, drugs, psychotropic substances, precursors, radioactive materials and so forth) responsibility is provided under Articles which contain in other Sections of the Special part of the Criminal code of Ukraine (further - UK), then such acts shall be qualified under these Articles and do not require additional qualification under the relevant articles of the Section VI of the Special part of UK.

3. Theft (secret plunder of alien property) is plunder, performing which, the perpetrator considers that it does it imperceptibly for the victim or other persons.

The robbery is open plunder of alien property in the presence of the victim or other persons who realize illegal nature of actions of the perpetrator which in turn realizes that its actions are noticed and are estimated as plunder.

Differentiating theft and robbery, it is necessary to proceed from orientation of intention of the perpetrator and data on whether realized injured nature of the actions made by the perpetrator. With respect thereto plunder should be qualified as theft not only when it is performed in absence of the victim, but also in the presence of strangers who do not realize the fact of plunder of property and cannot give it proper assessment (mentally sick, juvenile). Plunder is secret and in that case when it happens in the presence of injured person provided that the perpetrator does not know about it or considers that it does it imperceptibly for it and also when it is stolen in the presence of person to whom the property is entrusted, but it is in such condition which excludes opportunity to realize value of what occurs (dream, faint, state of intoxication).

4. Theft and robbery should be considered finished since the moment when the perpetrator withdrew property and had real opportunity to dispose or use it.

If person who illegally took control of property had no such real opportunity, its action should consider in dependence of the facts of the case as the finished or unfinished attempt at making of the corresponding crime. The finished attempt at theft are actions of person which stole property, but was exposed directly.

The actions begun as theft, but found by the victim or other persons and, despite of it, continued by the perpetrator for the purpose of taking property, it is necessary to qualify as robbery, and in case of use of violence or the statement of threat of its application - depending on nature of violence or threat - as robbery or robbery.

When the perpetrator already had real opportunity to dispose or whether it is illegal to use the withdrawn property, but applies violence only for the purpose of avoidance of detention, its actions cannot be recognized grabezhy, combined with violence. Depending on method of withdrawal of property they can be regarded as theft or robbery. Use of violence in that case forms separate actus reus and needs separate qualification depending on weight of consequences and the physical harm done to the victim.

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