Коррупционное преступление в уголовном законодательстве Украины: проблемы законодательной конструкции

Abstract

The list of corruption criminal offenses is enshrined in the note to Article 45 of the Criminal Code of Ukraine. At the same time, most scholars draw attention to the inconsistency of this list with the concepts of „corruption“ and „corruption offense“ defined in the Law of Ukraine „On Corruption Prevention“. The use of exhaustive lists in the texts of regulations serves their legal certainty, but these lists make the relevant rule inflexible. The purpose of this article is to establish the expediency of enshrining the list of corruption offenses in the Criminal Code of Ukraine and to make specific proposals for solving the problems, caused with such legislative method. Recognition of a certain offense as corrupt, depending on its formal inclusion in a certain list, is a rather vulnerable decision. This makes it possible to constantly change such a list without rethinking the content and signs of corruption defined in the law. In addition, this approach opens up opportunities for voluntarism in drafting and significantly limits judicial discretion in criminal proceedings. In particular, it makes impossible taking into account the specific circumstances of a criminal offense when assessing its public danger. The practice of applying criminal procedure legislation to whistleblowers also demonstrates the erroneousness of the chosen approach to the definition of the term „whistleblower“. In order to solve these problems, the authors proposed to enshrine the concept of corruption criminal offense in the Criminal Code of Ukraine as an offense, that contains signs of corruption, defined in the law, to clarify the concept of corruption in the Law of Ukraine „On Corruption Prevention“, to determine in the Criminal Procedure Code of Ukraine that the whistleblower is a person on whose application or notification a pre-trial investigation of a corruption criminal offense has been initiated.

Keywords

• criminal offense
• corruption
• signs of corruption
• criminal liability
• legislation