SINGS AND CONTENTS OF THE CONCEPT OF “CRIMERS AGAINST THE RIGHT OF INTELLECTUAL PROPERTY”

The Constitution of Ukraine guarantees citizens freedom of literary, artistic, scientific and technical creativity, protection of intellectual property, their copyright, moral and material interests arising in connection with various types of intellectual activity. The Basic Law does not accidentally distinguishes among the rights and legitimate interests in the field of intellectual property property and non-property rights. Indeed, in the process of literary and artistic, scientific and technical creativity there are qualitatively new knowledge, objects of the material and spiritual world, which have their value. The social essence of the legal institute of intellectual property consists in the fact that its norms carry out a protective function both in relation to property and non-property rights that arise from the authors of literary and artistic works, performers, inventors, etc.

Consequently, on the one hand, the Institute of Intellectual Property is devoted to the protection of rights to objects of literary, scientific, artistic and technical creativity, and, on the other, to regulate the legal status of these objects in social production. The specific feature of intellectual property objects is that they do not have a material form (as opposed to things as objects of property rights). The economic value of objects of intellectual property right does not depend on the material carrier on which they are located, but it is only a way of transferring ideas, opinions and conclusions of the author to other persons. The specified status of objects of intellectual property rights makes them very vulnerable to unfair use without the consent of the owner and often - the subject of crimes against the right of intellectual property. The urgency of the question of the classification of criminal acts appeared even in those days when the emergence of state and law the essence of criminal manifestations began to be fixed in the laws. The result of this rule-making activity was the isolation of the traditional types of crimes, such as crimes against the state, against religion, against morals, against property, etc., for the early stages of the development of criminal law. It is clear that at all times there was and continues to exist a certain "core" of crime or "eternal" crimes (eg, encroachment on individuals and property), which in ancient Rome were called "crimes from nature." But at the same time, along with the development of society, the nature of crimes inherent in specific periods of social development has also changed. That is why the problem of identifying certain types of crimes remains the most important task of modern criminal law, designed to reveal their social and legal essence. In particular, we are talking about crimes against intellectual property rights, which have already become a separate type of crime, as evidenced by the presence of both legislative initiatives and the attention of the highest legislative body of Ukraine to this issue, as well as relevant theoretical developments of domestic scholars. However, in the current Criminal Code of Ukraine, the crimes against intellectual property continue to be in different sections, which greatly complicates their qualifications. The purpose of the article is an attempt to formulate the definition of the concept of crimes against intellectual property and to distinguish their inherent legal features.

According to the Criminal Code of Ukraine (Part 1, Article 11), an act (act or omission) that is socially dangerous, criminal, wrongful, guilty, punishable and subjective, that is, committed by the subject of a crime, is recognized as a crime. Criminal acts that are aimed at violating intellectual property rights acquire the status of a crime if they are inherent in all, without exception, signs of criminal encroachment. Therefore, the first indication of crimes against intellectual property rights is their social danger, which is to violate this right and seriously damage the social relations that have arisen with regard to the use of the results of intellectual creative activity and are protected by criminal law or present a real threat of such damage. . Public danger in these cases is an objective feature of such crimes and a real violation of the relations of intellectual property rights. The emergence, change or loss of social danger of such an act is determined by the objective laws of social development, inextricably linked with the socioeconomic processes taking place in society. Part 1 of Art. 11 of the Criminal Code of Ukraine only points to social danger as a compulsory sign of any crime, without revealing its content, but a comparative analysis of criminal and administrative violations in the field of intellectual property proves that their social danger is not equivalent - it is a crime much larger. The assessment of the social danger of crimes against the right of intellectual property takes place on two levels: legislative (to date, the legislator has already criminalized most of the components of these criminal acts (Articles 176, 177, 229, 203, 231 and 232 of the Criminal Code of Ukraine) and law enforcement (when the inquiry body, investigator, prosecutor or judge assess its degree in the particular case of criminal violations of intellectual property rights).Public danger in these cases is an objective feature of such crimes and a real violation of the relations of intellectual property rights. The emergence, change or loss of social danger of such an act is determined by the objective laws of social development, inextricably linked with the socioeconomic processes taking place in society. Part 1 of Art. 11 of the Criminal Code of Ukraine only points to social danger as a compulsory sign of any crime, without revealing its content, but a comparative analysis of criminal and administrative violations in the field of intellectual property proves that their social danger is not equivalent - it is a crime much larger.

The assessment of the social danger of crimes against the right of intellectual property takes place on two levels: legislative (to date, the legislator has already criminalized most of the components of these criminal acts (Articles 176, 177, 229, 203, 231 and 232 of the Criminal Code of Ukraine) and law enforcement (when the inquiry body, investigator, prosecutor or judge assess its degree in the particular case of criminal violations of intellectual property rights). Public danger refers to appraisal concepts, and the criterion of its degree is objective and subjective 344 Public law No. 3 (11) (2013) features of the crime against the right of intellectual property: a specific object of intellectual property (the result of literary and artistic activity rights, the result of its scientific and technical activity or the result of individualization of goods (services) and their producers), the consequences, the method of committing a crime, the form of guilt, the motive and purpose. And only an assessment of the whole set of signs can reveal the severity of a criminal act - an objective and real danger. The significance of social danger as a material feature of a crime against the right to intellectual property is that it is the main objective criterion for determining an act as a crime (its criminalization), it allows to classify a crime according to its severity, defines the boundary between it and other offenses, and also is one from the general principles of individualization of criminal responsibility and punishment. Another feature of crimes against intellectual property rights is their criminal offense, which points to the illegality of such acts and their predictability in the criminal law. Criminal misconduct is closely linked to social danger and is a subjective manifestation of the real danger of an act for public relations that has developed in the field of intellectual property and its legal assessment. Moreover, criminal unlawfulness is the legal feature of social danger, which is enshrined in the law, and it is its degree that determines the objective boundaries of unlawfulness, for which the question of criminalization can not arise. The exclusion of a criminal offense as a mandatory feature of a crime is a concrete expression of the principle of lawfulness in criminal law: only a person who committed a socially dangerous act, which is provided for by the law on a crime, is subject to criminal liability and punishment. The criminal law contains an exhaustive list of crimes. Hence the most important provision - the impossibility of applying a criminal law by analogy with such an act, which is not directly foreseen in it. Part 4 of Art. 3 of the Criminal Code of Ukraine expressly states that the application of the law on criminal liability is prohibited by analogy.

The most urgent question is raised about the need to criminalize criminal acts against the right of intellectual property, the subject of which are such results of intellectual creative activity as animal breeds and scientific discoveries (although about the possibility of criminalization of the last object of intellectual property in the scientific literature, doubts are expressed. But so far these kinds of behavior are not criminalized, and therefore criminal liability for them is impossible. Another compulsory feature of crimes against the law of intellect This property is embodied in the most important principle of criminal law - the principle of subjective criminality, that is, liability only if there is a fault arising from Article 62 of the Constitution of Ukraine. Part 2 of Article 2 of the Criminal Code of Ukraine consolidated this principle, stating that a person is considered to be innocent in committing a crime and can not be subjected to criminal punishment until her guilt is proved in a lawful manner and established ynuvalnym court sentence. Thus, the law on criminal liability excludes objective criminality, that is, the responsibility for the damage caused in the absence of guilt. The fault according to Art. 23 of the Criminal Code of Ukraine is the mental attitude of a person to the action or inaction which is being committed by her, and its consequences, expressed in cases of criminal violation of rights. Signs and content of the concept "crimes against intellectual property right" 345 of intellectual property in the form of intent. An offense against the right to intellectual property is a unity of the objective and subjective: the act and the mental (conscious and willful) attitude towards him. How an act can not be disclosed outside the connection with the mental attitude of the person to him, and the content of mental attitude (guilty) can not be determined outside the context of the nature of the act: the result of intellectual creative activity, which the person infringes, the method of encroachment, consequences and other objective features.

Wines largely determine the nature of the act and the degree of its severity and is an important criterion for recognizing it as a crime. Wines are sometimes called the second material sign of crime and is its obligatory subjective property. Without guilt, there is no crime, and therefore, there can be no punishment for one or the other act against intellectual property rights. The mark of crimes against intellectual property rights is their punishment, which is understood as the threat of use for the crime of punishment contained in penal sanctions. Punishment is essentially a result of social danger and a criminal offense: it therefore becomes criminally punish because it is socially dangerous and foreseen by a criminal law as a crime. Although the wording of the crime in Part 1 of Art. 11 of the Criminal Code does not contain an indication of punishment as a sign of a crime, it certainly follows from the sign of criminal wrongdoing. Without a punishment for a crime that was recognized as a crime, such a confession would have lost any sense. Pointing to Part 2 of Art. 1 of the CC on the way of carrying out the task facing the Criminal Code, the law emphasizes that for its implementation, the Criminal Code determines which socially dangerous acts are crimes and which punishments are applied to the persons who committed them. Without a criminal law sanction, it is impossible to fight against any crime. However, this does not mean that the penalty provided for in the sanction must necessarily be applied to the person who committed the act, formulated in the disposition of a particular article.

A person recognized as a criminal may be exempted from criminal liability or punishment by a court, as well as by amnesty or pardon. It should be noted that the current Criminal Code of Ukraine establishes a relatively small amount of punishment for crimes against intellectual property rights. However, it is enough to compare the most severe sanction for violation of copyright and related rights - imprisonment - in the legislation of Ukraine and the countries that successfully eradicate piracy. Yes, Art. 176 of the Criminal Code of Ukraine provides for deprivation of liberty for committing the said crime for a maximum of up to 2 years, in the United States - up to 10 years, in Poland - up to 5 years, and in Malaysia - up to 20 years. According to international experience, it is possible to succeed in combating criminal violations of intellectual property rights when citizens realize that the state does not allow such violations. In countries where such measures have been applied and have been backed up by effective punitive sanctions, the violation of intellectual property rights is put under control without noticeable political unrest and the cost of huge government resources. And the last sign of this type of crime is their subjectivity. Crimes against intellectual property rights are acts committed by the subject of a crime, since not every person who committed a socially dangerous criminal offense is subject to criminal liability and punishment. She should be aware of her actions and manage them, reach a certain age, and so on. Without that.