About some problems of qualification of violations of land rights, which are committed through inactivity

Abstract

The article is devoted to solving urgent problems of qualification of land rights violations committed by inaction.
It has been proved that the untimely return of temporarily occupied lands provided on the basis of an agreement for temporary (short-term or long-term) use (in particular, lease) is subject not to criminal (Art. 197-1 or Art. 356 of the Criminal Code of Ukraine), but to administrative responsibility (Article 54 of the Code of Ukraine on Administrative Offenses).
The article argues the position that in favor of the stated approach the accounting indicates: a) the meaning of the word «borrow»; besides, it is impossible to take possession of a land plot or use it by inaction; b) the normative definition of the concept of unauthorized occupation of a land plot (Article 1 of the Law of Ukraine «On State Control over the Use and Protection of Lands»); c) rules of constitutional origin “all doubts are in favor of the person whose acts are qualified”. It is noted that from such considerations, unauthorized occupation of a land plot cannot be considered: non-release of a land plot by a person who has not fulfilled his obligations to a creditor and therefore deprived of ownership of the land plot; non-release of a land plot by a person whose land plot has been alienated for reasons of public necessity or for public needs or confiscated by a court decision; non-alienation of a land plot by foreign and stateless persons within a specified period; untimely release of land plots, the right to use which has ceased; violation of the terms of re-registration of rights to land and the like. It is stated that in these cases the deed can be regarded as one or another land offense – violation of the term for the return of temporarily occupied lands, failure to fulfill obligations to bring them into a state suitable for their intended use.