Regarding the definition of weapon

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The definition of “weapon” today remains very controversial. Despite the presence of a number of works devoted to weaponology the question of a weapon in the wide sense is left open.

Why does this question arise? The answer is contained in the disposition of certain articles of the Criminal Code of Ukraine. Thus, in part 5 of Article 36 of Criminal Code of Ukraine (Necessary defense) it is stated that the use of weapons or other means or things for protection against an attack of an armed person or an attack of a group of persons, and also to avert an unlawful violent intrusion upon a dwelling place or other premises, shall not be treated as the excess of necessary defense and shall not entail criminal liability irrespective of the gravity of harm caused to the trespasser. [1, p. 110]. Paragraph 1 of Article 294 of the Criminal Code of Ukraine (Riots) contains a regulation that organizing riots accompanied with violence against any person, riotous damage, arson, destruction of property, taking control of buildings or construction, forceful eviction of citizens, resistance to authorities with the use of weapons or any other things used as weapons… [1, p. 833]. In the commentary to the article it is stated that weapons can be used through shooting to kill, in the air or ground, stabbing with cold weapon and other things suitable for lesion of an animate being (iron rods, stones, tear gas sprays) [1, p. 834].

The current law divides weapons into firearms and cold weapons and there is quite a reasonable question – what are the other means and objects used as weapons, and by which criteria a person should be considered armed?

Researching the normative sources, we find the definition of “weapon” in the Model Law of Ukraine “On Weapons”, which points out in Article 1 that weapons are devices and objects structurally designed to harm alive or other purposes and to signal [2]. In Article 1 of the draft Law of Ukraine “On Civil weapons and ammunition”, which was submitted to the Verkhovna Rada of Ukraine for consideration, the following definition is formulated: weapon is a device or an object specifically designed or adapted for destruction, damage, injury or causing other devastating impact on alive or other objects and goals [3]. The constructive purpose to harm and destroy a target is common for these definitions.

Referring to the history of weapons, its origins, we can see that stones and sticks were the “forefathers” of modern weapons. As a result of improvements they were transformed into other known to us now kinds of a weapon or its certain elements. A stone was gradually replaced by metal and became a projectile for firearms and cold missile weapons. A stick performing the function of a tool of protection and attacks was also used to lengthen an arm of a person, and to increase the strength while throwing other weapons, in particular spears. Little by little it was transformed into spear cold weapon, and later into clubs (as a kind of special equipment).

A person’s skills of using stones and sticks for self-defense are innate as an instinct of self-preservation. [4] Everyone has the right to protect his or her life and health, life and health of others from unlawful acts (para. 2, Art. 27 of the Constitution of Ukraine) [5].

We offer the following definition of weapons – objects or devices (products) which are suitable for active defense and attack.

An armed person should be considered the one using objects, things (products) for protection or attack that are suitable for such purposes.

In criminal law to characterize the objective side of crime, we consider it appropriate to apply the specified concept of weapons – firearms, cold weapons, nuclear weapons and etc.

We find it reasonable to exclude hunting knives from the list of cold weapons. This category of knives should include only knives which are elements of the regular army weapons.

 

Література.

  1. Науково-практичний коментар Кримінального кодексу України. – 6-те вид. переробл. та доповн. / За ред.. М.І. Мельника, М.І. Хавронюка. – К.: Юридична думка, 2009. – 1236 с.
  2. Модельний закон «Про зброю» : [Електронний ресурс]. – Режим доступу : http://zakon4.rada.gov.ua/laws/show/997_a16/print1393769721771759
  3. Закон України «Про цивільну зброю та боєприпаси» проект : [Електронний ресурс]. – Режим доступу : http://zakon4.rada.gov.ua
  4. Энциклопедия самозащиты: [Електронний ресурс]. – Режим доступу : http://yavara.vodko.info/samooborona-s-pomoshhyu-kamnya/
  5. Конституція України: [Електронний ресурс]. – Режим доступу : http://zakon4.rada.gov.ua/laws/show/254к/96-вр.

 

 

Sergii Honhalo
PhD (Legal Science),
Associate Professor of the Department
of Justice and Criminal Law
I. Malynovskyi Institute of Law

Vlada Honhalo
student of the 4th year
I. Malynovskyi Institute of Law

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