| (2019) 1 Visn. Nac. akad. prokur. Ukr. 50–62 | |
| https://doi.org/10.34285/visnyknapu2019.01.050 | |
| Title of the article | Legal Flaws and Complaxity of Application of the Article 3684 “Bribery of a Persons Providing Public Services” of the Criminal Code of Ukraine |
| Author(s) | NATALIIA YARMYSH Doctor of Law, Professor, senior lecturer, department of prosecutor’s training on the issues of qualification of criminal offenses, Institute of Special Training, National Prosecution Academy of Ukraine, Kyiv, Ukraine, natalya_yarmysh@ukr.net |
| Short title of the journal (ISSN) |
Visn. Nac. akad. prokur. Ukr. |
| Year | 2019 |
| Issue | 1 |
| Pages | [50–62] |
| Language | Ukrainian |
| Abstract | In 2011, the Criminal Code of Ukraine (CC of Ukraine) was supplemented by articles 3684 “Bribery of a person providing public services” and 3652 “Abuse of authority by persons providing public services”. Thus, in Section XVII of the Special Part of the Criminal Code of Ukraine was identified a new subject of crime. Official recognition of persons not belonging to officialі, in particular notaries (in connection with the performance of their purely professional functions), has become a step that has contributed to expanding the possibilities of counteracting corruption crimes. It should be noted that by that time (contrary to impeccable scientific approaches) notaries and other entities with the corresponding status were often prosecuted under art. 368 of the Criminal Code of Ukraine, as they were mistakenly recognized by their officials. However, by supplementing the Criminal Code of Ukraine with articles in which a new subject has been identified, the legislator created a number of new problems. Purpose of the article – to analyze the most obvious mistakes that are assumed when qualifying actions under Art. 3684 of the Criminal Code of Ukraine, to find out the reasons for such mistakes and to suggest ways to eliminate them. As a result of the analysis there are made the following main conclusions. The subject, to which the research is devoted, is differently defined in the title of Section XVII of the Special Part of the Criminal Code of Ukraine, in articles and even in their parts. In the title of Art. 3684, which implies the actions of not only the “bribe taker”, but also it is unjustifiably used the “bribe giver”, the word “bribery”. The disposition of articles that refer to individuals providing public services, designed in a non-uniform way, is cumbersome and confusing. They provide different lists of such entities that are not exhaustive, contains an indication to other persons providing public services, but there is no general definition of such persons in the legislation. The indication of a crime “request” concerning an unlawful benefit due to the legislator’s negligence is not provided for in the part of the article intended for the “bribe taker”, instead it is contained in the part of the article under which the “bribe giver” corresponds. The legislative shortcomings are also due to the flaws of law enforcement. Due to the presence in the title of Art. 3684, the word “bribery” is a false impression that the subject of the crime provided for in this article can’t be considered a “bribing gratitude” (which without prior agreement is given after the actions). The absence of an official definition of the relevant subject of a crime prevents courts from applying Art. 3684 in cases where the indication of a particular species is not included in the list, therefore, instead of Art. 3684 often apply Art. 354 of the Criminal Code of Ukraine. A person who provides public services is sometimes confused with an official; in this case, the corresponding act does not qualify under Art. 3684, and under Art. 368 of the Criminal Code of Ukraine. Since some practitioners mistakenly believe that a person providing public services is also official, in some cases a person who, in the commission of various crimes, uses the same function, are prosecuted for a combination of non-service and service crimes. Applicants are deprived of the opportunity to bring the person providing the public service to liability for the unlawful gain. Directions to the flaws of the legislation (in this article are considered only the most obvious) can simultaneously be considered as proposals for their removal. However, it should be noted that there are so many misconceptions about corruption crimes that the scientific community raises the question of radical reconstruction of the relevant provisions of the Criminal Code of Ukraine. |
| Keywords | counteraction to corruption; criminal and legal qualification; person providing public services; official; employee of an enterprise, institution, organization. |
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