НЕЗАКОННЕ ЗБАГАЧЕННЯ (ст. 368-5 КК УКРАЇНИ): КОРОТКИЙ ОГЛЯД

Abstract

Law N 263-IX of 31 October 2019, the Criminal Code of Ukraine (hereinafter referred to as the Criminal Code) has been supplemented by Article 368-5 “Illegal Enrichment”.

The subjects of this crime are persons listed in paragraph 1 of Part 1 of Article 3 of the Law of Ukraine “On Prevention of Corruption”.

Considering that the Law of Ukraine “On Prevention of Corruption” defines legal and organizational principles of functioning of the system of prevention of corruption in Ukraine, the content and procedure of application of preventive anti- corruption mechanisms, rules on elimination of consequences of corruption offenses,  it is stated expediency of expanding the circle of subjects.

Namely, based on the provisions of paragraph 2 of Art. 3 of the Law of Ukraine “On Prevention of Corruption”, which refers to persons “who for the purposes of this Law are equated with persons authorized to perform functions of the state or local self-government”, has been proposed and to recognize these persons as the subjects of the crime, whose responsibility is provided for in Art. . 368-5 of the Criminal Code.

In the case of a positive solution to this issue, it is logical to bring to the common denominator understanding of the content of the concepts: "persons authorized to perform the functions of state or local government", "person authorized to perform the functions of state" in other articles of the Criminal Code.

In addition, the content of the note to Art. 368 of the Criminal Code. In particular, it made reference to Art. 368-5 of the Criminal Code. While in the note to Art. 368-5 of the Criminal Code independently resolve all issues.

It is argued that when a person authorized to perform state or local government functions illegally acquires assets, then such acquisition occurs contrary to the requirements of the Civil Code of Ukraine (hereinafter - the Civil Code). And, therefore, that person, upon acquisition of the assets, cannot be their owner, as required by the Civil Code.

It is proved that the application of the norm of liability for illegal enrichment, based on the above conditions, is possible by establishing in Art. 368-5 of the  Criminal Code of the responsibility of a person authorized to perform the functions of the state or local self-government, not for the acquisition by it of illegally owned assets, but for the assets obtained (acquired) of unknown origin, the value of which in a certain amount exceeds its legal income.