DISTINGUISHING BETWEEN THE ELEMENTS OF CRIMINAL OFFENSES UNDER ARTICLE 139 AND ARTICLE 140 OF THE CRIMINAL CODE OF UKRAINE

Abstract

This article addresses the issue of distinguishing between the elements of a medical professional’s failure to provide assistance to a patient (Article 139 of the Criminal Code of Ukraine) and a medical or pharmaceutical professional’s improper performance of professional duties (Article 140 of the Criminal Code of Ukraine). It has been established that the elements of these criminal offenses are closely related, as they share several common (coinciding) elements in terms of content. These are elements that pertain to the direct object (a person’s health) and the subject (a medical professional) of both criminal offenses. In the course of analyzing the legal provisions, a number of characteristics have been identified by which the criminal offenses under consideration should be distinguished. Among these characteristics is a socially dangerous act. Under Article 139 of the Criminal Code of Ukraine, it consists of the inaction of a medical professional, specifically the failure to provide medical care to a patient. In contrast, the socially dangerous act under Article 140 of the Criminal Code of Ukraine consists not only of inaction (failure to perform professional duties) but also of actions (improper performance of professional duties). Furthermore, Article 139 of the Criminal Code of Ukraine refers to the failure to provide medical care, while Article 140 of the Criminal Code of Ukraine refers to the failure to perform or the improper performance of professional duties. It has been established that the distinguishing feature is the socially dangerous consequences of criminal offenses, namely their presence as a mandatory element of the offense under Article 140 of the Criminal Code of Ukraine (serious consequences for the patient) and their absence under Part 1 of Article 139 of the Criminal Code of Ukraine. One of the distinguishing features of the criminal offenses under consideration is the victim. Under Article 139 of the Criminal Code of Ukraine, a victim is only a person who is in a lifethreatening condition and therefore requires medical assistance, whereas under Article 140 of the Criminal Code of Ukraine, a victim is a “patient,” that is, any person who requires scheduled or immediate medical assistance. The distinguishing features of the criminal offenses under consideration are guilt and, in part, the subject. Under Part 1 of Article 139 of the Criminal Code of Ukraine, guilt is characterized by direct intent, while under Part 2 of Article 139 of the Criminal Code of Ukraine, it is characterized by negligence. Under Article 140 of the Criminal Code of Ukraine, the subjective element is determined by the mental attitude toward socially dangerous consequences and is characterized by negligence. Under Article 139 of the Criminal Code of Ukraine, the subject is a medical worker, while under Article 140 of the Criminal Code of Ukraine, the subject is both a medical and a pharmaceutical worker.