Incitement: Terminology and Qualification Aspects

Abstract

The paper presents a critical analysis of legislative definition of abettor. Such ways of involving persons in crime committing as abetment, recruiting, bribery, threat, enforce and their relationship to each other are examined. It was established that abetment and enforcement are single-level terms which are part to the concept of involvement. Free will of an incited person is a criterion for distinguishing. Recruiting and bribery meet the criteria for abetment and based on a material gain promise. In turn, the threat reflects the essence of enforcement. A number of legal technique shortcomings are identified in the design of particular Specific Part provisions of the Criminal Code which violate consistency using of the considered conceptual construct. The author's version is offered for amending p. 4 Art. 33 of the Criminal Code taking into account the formed terms hierarchy. A possible qualification ways of actions both covered by a specific article of the Criminal Code and coinciding with the complicity institute provisions are considered. The lack of uniformity is revealed in the approach both at the level of judicial practice and opinions among the scholars. The views expressed in the scientific community predominantly relate to specific crime components or groups of crimes. The paper emphasizes the need for a single principle universal for all situations. The author concluded that the exclusive application of a specific article is unnecessary as in some cases it provides a smaller penalty than can be assigned to an abettor by using an article according to which they can be considered as accomplices. Another option would be an application of the cumulative crime institute. However, this qualification model is unacceptable as it violates the principle of fairness in sentencing. In this regard, the only solution capable of ensuring uniformity in the enforcement is the exception of legally defined crimes which duplicate provisions of incitement from the Special Part of the Criminal Code. The provisions of Chapter 7 of the Criminal Code of complicity should be used in such situations.