Юридичний часопис Національної академії внутрішніх справ (Mar 2023)
Corruption Related Criminal Offenses: Conceptual Issues in the Context of Reforming the Criminal Legislation of Ukraine
Abstract
The purpose of the article is to identify major problematic issues related to the construction of criminal law provisions in the area of corruption offenses, both in the Criminal Code of Ukraine and in the draft General Part of the Criminal Code of Ukraine of 2020, as well as to identify ways to solve them. The article employs a set of research methods, namely: terminological, system-structural, formal-logical, comparative-legal. The theoretical basis of the study is constituted by the works of Ukrainian and foreign scientists, by provisions of the Criminal Code of Ukraine, as well as by the practice of their application. The scientific novelty of the article is based on the following: 1) the problems of determining a corruption offense and ways to solve them have been revealed; 2) shortcomings in the definition of corruption, provided for in the draft General Part of the Criminal Code of Ukraine 2020 and formulates proposals for their elimination have been identified; 3) main advantages and disadvantages of the list of corruption offenses contained in the note to Art. 45 of the Criminal Code of Ukraine have been identified; 4) classification of corruption criminal offenses according to the method and subject of their commission has been improved; 5) the content, positive and negative sides of the criminal-legal consequences of a corruption criminal offense have been revealed. According to the results of the study, the following conclusions have been drawn: 1) the lack of definition of the term «corruption criminal offense» in the Criminal Code of Ukraine does not allow to clearly understand the criminal nature of this group of violations, and, accordingly, to establish criminal offenses and crimes that belong to them; 2) when creating such definition, it should be taken into account that it must be consistent with the definition of a criminal offense, corruption offense and corruption; 3) the concept of a tripartite understanding of illicit gain (as the subject, purpose and means of crime commission) in the definition of corruption should be transformed into a construction, such as «acts consisting in the offer or promise of illicit gain, its provision, acceptance or promise of such benefit, its receipt, request or extortion to provide»; 4) as presented in the note to Art. 45 of the Criminal Code, the list of corruption offenses, on the one hand, does not cover all criminal offenses that should be attributed to corruption, and on the other – includes some criminal offenses, which should not be attributed to corruption; 5) it is proposed to divide corruption criminal offenses according to the method of commission into: a) illegal possession of certain property by abuse of official position by a public official; b) abuse of power, official position or authority; c) an offer, a promise to provide an illegal benefit, as well as the provision of such a benefit for committing or failing to commit certain acts (active bribery); d) acceptance of an offer or promise of such benefit, its receipt, request or demand to provide (passive bribery); e) other corrupt criminal and illegal acts (conditionally corruption, quasi-corruption and criminal offenses, which have been unreasonably included in the note of Article 45 of the Criminal Code of Ukraine); 6) analysis of the negative criminal law consequences of a corruption criminal offense demonstrates that the legislator in certain cases has equated these torts to serious and especially serious crimes; 7) in the context of reforming criminal legislation, it is necessary to improve the grounds for various types of confiscation, prohibition to engage in certain activities or hold certain positions, as well as to consider the feasibility of criminalizing concealment of corruption offenses.
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