Предмет ст. 305 КК України як обов’язкова ознака складу кримінального правопорушення

The subject matter of Article 305 of the Criminal Code of Ukraine has been considered as a
mandatory element of the offense. The opinions of other authors regarding the definition of the concept
of the subject matter of a criminal offense have been analyzed, and it has been concluded that the subject
matter of a criminal offense should be understood as things of the material world that may be the subject
of a criminal offense or are related to it. The subject matter of a criminal offense is an optional element
of the offense. If the subject matter of a criminal offense is directly indicated in the disposition of the
relevant article of the Special Part of the Criminal Code, it acquires the status of a mandatory element.
Thus, the subject matter of Article 305 of the Criminal Code of Ukraine is narcotic substances,
psychotropic substances, their analogues or precursors, or counterfeit medicinal products. Considering
that this subject matter is directly mentioned in the article, it is a mandatory element of the offense, and
the list of items mentioned in the article is exhaustive and cannot be expanded. In addition, the size and degree of social danger of a narcotic substance, psychotropic substance, their analogue or precursor, or
counterfeit medicinal product affect the qualification, as the person who commits the criminal offense is
held criminally responsible for the basic, qualified, or particularly qualified form of the offense.
Therefore, after analyzing the subject matter of paragraphs 1, 2, and 3 of Article 305 of the
Criminal Code of Ukraine, it has been concluded that there are no issues in the qualification of criminal
offenses involving narcotic substances, psychotropic substances, or counterfeit medicinal products, as the
legislator clearly differentiates the responsibility based on the size of the narcotic substance, psychotropic
substance, their analogues or precursors, or counterfeit medicinal product (small, large, particularly
large). However, regarding the qualification of criminal offenses involving particularly dangerous
narcotic substances or psychotropic substances, there is a problem, as particularly dangerous narcotic
substances and psychotropic substances are only the subject matter of paragraph 2 of Article 305 of the
Criminal Code of Ukraine.
Therefore, it is proposed to further differentiate the responsibility for criminal offenses involving
particularly dangerous narcotic substances or psychotropic substances, taking into account their size
(large, particularly large), and accordingly make changes to paragraph 3 of Article 305 of the Criminal
Code of Ukraine, and present paragraph 4 in the following version:
3. Smuggling of narcotic substances, psychotropic substances, their analogues or precursors, or
counterfeit medicinal products committed by an organized group, as well as if the subject of smuggling
was narcotic substances, psychotropic substances, their analogues or precursors, or counterfeit medicinal
products in particularly large quantities or particularly dangerous narcotic substances or psychotropic
substances in large quantities, shall be punished...
4. Smuggling of particularly dangerous narcotic substances, psychotropic substances in
particularly large quantities shall be punished...