Basic principles of land reform and legal responsibility for violations in the field of land relations

- other sources not prohibited by law. joint ownership of the spouses.

Determining the price of land is a personal matter of the seller and the buyer, the subject of negotiations between them. No one can force the seller and the buyer to enter into a contract at a price that does not suit them².

Legal responsibility is one of the most important guarantees of constitutionality, law, and order and realization of human and civil rights and freedoms, including in the field of land relations. The essence and peculiarity of legal responsibility for committing land offenses is important and essential not only for legal science, lawmaking but also law enforcement practices. They become especially important in modern conditions, when, on the one hand, the rights to land, law, and order guaranteed by the Constitution of Ukraine are violated, and on the other hand, there is total responsibility for violating the requirements of land legislation. The need to analyze the problems of legal liability in land law is due to the current and future needs of the science of land law.³

Legal liability for land offenses in the modern land law literature is defined as a special type of legal relationship that arises from the combination of legal liability for land liability with a land offense, as a legal fact in which the state's right to protect relevant values encroached upon, to restore the violated right or to demand compensation for damage, i.e. to punish the guilty person, and to oblige the offender to suffer certain deprivations of personal, property or organizational nature.⁴

According to Art. 211 of the Land Code of Ukraine, citizens and legal entities are civil, administrative, or criminal liability¹¹.

Legal liability arises in the presence of appropriate grounds: factual (corpus delicti) and normative (normative legal act, in the articles of which the model of all elements of the corpus delicti is fixed).⁵ In addition, some scholars point out that a law enforcement action is also needed, which provides an objective and comprehensive assessment of the circumstances and the person the offender, as well as the legal qualification of her actions and a reasoned legal decision.⁶

Thus, we are talking about the third ground of legal liability - the procedural ground. That is, the factual basis for bringing a person to justice for violations in the field of land relations is the commission of a land offense, which should be understood as a socially dangerous act or omission contrary to land law, for which the guilty person is legally responsible. As you know, from the theory of law, the offense consists of four elements: the object, the objective side, the subject, and the subjective side.⁷

In addition, the above list of offenses is not exhaustive, and therefore Part 2 of Art. 211 of the Land Code of Ukraine provides that the law may establish liability for other violations of the law. This norm is rightly criticized by scientists as «having no regulatory and protective value» because no one can be prosecuted only on the basis of Part 1 of Art. 211 of the Land Code of Ukraine; liability may arise under the rules of civil, administrative, criminal, or other legislation, which establishes specific sanctions for these offenses.⁸

The essence of most violations in the field of land relations is disclosed in special regulations. Thus, according to the Law of Ukraine of June 19, 2003 «On State Control over Land Use and Protection», land pollution is considered to be accumulation in soils and groundwater due to the anthropogenic impact of pesticides and agrochemicals, heavy metals, radionuclides, and other substances exceeding natural background, which leads to their quantitative or qualitative changes; destruction of boundary markers is the actions of citizens that have led to the loss of the boundaries of the land, resulting in the need for additional surveying work to restore them, and so on. Land offenses can be classified on various grounds: depending on the degree of public danger of crimes and misdemeanors; by subject - committed by a natural or legal person; by the form of guilt - intentional or negligent acts; according to the features of the objective side - committed in the form of actions or omissions; depending on the sphere of public relations - property or management offenses, etc. Criminal liability is applied for criminal offenses under which, according to part 1 of Art. 11 of the Criminal Code of Ukraine, means provided by the Criminal Code of Ukraine socially dangerous crime (action or inaction), committed by the subject of a criminal offense. And it comes only for such violations that involve increased public danger and, as a rule, cause significant damage to protected public relations.

Criminal liability for land offenses is provided exclusively by the Criminal Code of Ukraine⁹. In particular, the Criminal Code of Ukraine provides for the following grounds for criminal prosecution in this area: the unauthorized occupation of land and unauthorized construction (Article 197-1 of the Criminal Code of Ukraine), pollution or damage to land (Article 239 of the Criminal Code of Ukraine); illegal seizure of land (surface layer) of land (Article 239-1 of the Criminal Code of Ukraine); illegal seizure of water fund lands in especially large amounts (Article 239-2 of the Criminal Code of Ukraine); intentional destruction or damage of territories taken under state protection and objects of the nature reserve fund (Article 252 of the Criminal Code of Ukraine); without economic use of land (Article 254 of the Criminal Code of Ukraine) and some others.

Criminal liability for violations of land legislation also occurs for officials. Thus, the actions of officials in committing offenses related to the illegal transfer of ownership of land shares, forest, water fund, etc. to another individual are qualified under the articles of the Special Part of the Criminal Code of Ukraine: abuse of power or position (Article 364 of the Criminal Code Ukraine), closely related to official forgery (Article 366 of the Criminal Code of Ukraine), negligence (Article 367 of the Criminal Code of Ukraine), acceptance of an offer, promise or illegal benefit of an official (Article 368 of the Criminal Code of Ukraine), abuse of influence 369-2 of the Criminal Code of Ukraine).⁹

All land offenses, depending on the direct object of encroachment are divided into two groups: the actual land offenses and land offenses of an environmental nature.¹⁰ The former includes offenses that violate the legal rights and interests of landowners and land users, in particular, unauthorized occupation of land and unauthorized construction (Article 197-1 of the Criminal Code of Ukraine).

Land offenses of environmental orientation may be included if the object is land as a natural object and the commission of an offense related to damage to land: pollution or damage to land (Article 239 of the Criminal Code of Ukraine); illegal seizure of land (surface layer) of land (Article 239-1 of the Criminal Code of Ukraine); illegal seizure of water fund lands in especially large amounts (Article 239-2 of the Criminal Code of Ukraine); intentional destruction or damage of territories taken under state protection and objects of the nature reserve fund (Article 252 of the Criminal Code of Ukraine); mismanagement of land use (Article 254 of the Criminal Code of Ukraine).

One of the most common violations in the field of land relations is the unauthorized occupation of land and unauthorized construction (Article 197-1 of the Criminal Code of Ukraine), under which according to Art. 1 of the Law of Ukraine «On State Control over the Use and Protection of Land» of 19.06.2003 means any action that indicates the actual use of land in the absence of a decision of the executive or local government on its transfer to ownership or provision for use (lease) or in the absence of a transaction in respect of such land, except for actions that, in accordance with the law, are lawful.

At the same time, this definition is sharply criticized by authoritative scientists. The direct object of this offense the established procedure for acquiring land plots is in force. From the obj ective point of view, unauthorized occupation of land can be expressed in the actions of fencing the land, its development, construction, etc. If the unauthorized occupation of land is accompanied by damage, pollution of the site, causing damage to the environment, it can be considered not only as a land but also as an environmental offense. The subject is an individual. If unauthorized employment is carried out in favor of a legal entity, the relevant official is subject to criminal liability. From the subjective point of view, unauthorized occupation of land is always an intentional violation aimed at taking possession of land.⁷

Also, in accordance with the above, the use of land for waste storage, parking, travel, which is not intended to acquire land, cannot be considered unauthorized occupation. For unauthorized occupation of a land plot, first of all, civil restitution is applied: such land plot is returned to its rightful owner or land user without reimbursement of expenses incurred during illegal use (Article 212 of the Land Code of Ukraine). Enterprises, institutions, organizations, and citizens guilty of unauthorized occupation of land are obliged to bring the site to a condition suitable for use, to restore the violated boundary signs, to demolish illegally erected buildings. Secondly, unauthorized occupation of land entails administrative liability in the form of a fine in the following amounts: for citizens - from 10 to 50 non-taxable minimum incomes; for officials - from 20 to 100 non-taxable minimum incomes (Article 53-1 of the Code of Administrative Offenses). Third, unauthorized occupation of land, which caused significant damage to its rightful owner or owner provides for criminal liability and is punishable by a fine of 200 to 300 non-taxable minimum incomes or arrest for up to six months (Article 197-1 of the Criminal Code).

Given the number and social danger of unauthorized occupation of land and unauthorized construction, in 2007 such acts were criminalized by supplementing the Criminal Code of Ukraine Art. 197-1 of the Criminal Code of Ukraine. Since then, there is a controversial issue regarding the separation of administrative and criminal liability for unauthorized occupation of land, the traditional criterion of which is the degree of public danger of the offense⁷. In the absence of signs of a crime under Art. 197-1 of the Criminal Code of Ukraine, liability for unauthorized occupation of land may occur under Art. 53-1 CUAO.

In modern jurisprudence, the need to allocate, along with traditional types of legal liability, a special type of liability for violations of land legislation. It is most often determined by land liability. The application of special liability for land offenses is justified by the following facts: land as an object of nature has certain specifics different from other objects of the material world, so the use of traditional means of legal liability is insufficient to ensure proper legal use and protection; the main purpose of the legislative consolidation and practical application of special land legal measures is the restoration of the previous state of land relations; special measures of responsibility are manifested not so much in the occurrence of adverse consequences for the violator of land legislation, as in the reimbursement of costs caused by illegal use of land⁹. It is proposed to include in the special land legal responsibility the forced termination of the right to use the land plot, the obligation to demolish the illegally constructed object by the owner of the land plot or the land user or to return the arbitrarily occupied land plot.⁸

At the same time for unauthorized occupation of land provided criminal liability under Art. 197-1 of the Criminal Code of Ukraine and administrative - under Art. 53-1 CUAO.

Conclusions. Thus, criminal liability for violations in the field of land relations has a number of features, in particular, the specific factual basis of liability, which is the fact of committing a land offense, and its own regulatory basis, which is legal norms enshrined exclusively in articles of the Criminal Code.

Література

1. Постанова КМУ «Про затвердження Порядку здійснення перевірки відповідності набувача або власника земельної ділянки сільськогосподарського призначення вимогам, визначеним статтею 130 Земельного кодексу України» №637 від 16 червня 2021 року