Corruption Crime As A Basis For Quasi-Criminal Liability Of Legal Entities: Some Problems Of Regulatory Consolidation

Abstract

The article is devoted to the study of the issue of the form of a corruption crime as the basis for the application of criminal legal measures against legal entities for its commission by an authorized person on behalf of and in the interests of a legal entity (paragraphs one and two of the first part of Article 96-3 of the Criminal Code of Ukraine). It is established that the criminal legislation of Ukraine provides that such a corruption crime should take an active form, that is, consist in the proposal, promise, provision of undue benefit to the relevant entity - an official of a legal entity of private law (parts one and two of Article 368-3), a person engaged in professional activities related to the provision of public services (parts one and two of Article 368-5), a public official (Article 369). Through a systematic analysis and application of the rules of systematic interpretation of criminal law norms, it was concluded that in relation to the abuse of influence (Article 369-2 of the Criminal Code of Ukraine), which may consist in an active and passive form of corruption, the legislator allows this crime as a basis for applying criminal law measures against legal entities. This is seen as inconsistency of the legislator, since Articles 368-3, 368-4, 369 of the Criminal Code of Ukraine and Article 369-2 of this Code are correlated as general and special norms (respectively). It is established that the international anti-corruption conventions differently provide for the possibility of establishing a certain form of responsibility for legal entities in case of committing a certain corruption crime on their behalf and/or in its interests. In the UN Convention against Corruption - for active and passive forms of corruption (bribery), and in the Criminal Convention of the Council of Europe on the fight against corruption and in the OECD Convention on the fight against bribery of officials of foreign states during international business operations - only for an active form of corruption (bribery). It has been concluded that the more correct is the approach, according to which measures of criminal and legal nature in relation to legal entities can be applied in case of its being committed by an authorized person on behalf of and in the interests of this legal entity, both active and passive bribery, which meets the anti-corruption standards of the general level, namely those provided for in the UN Convention against Corruption. It is proposed to state the first and second paragraphs of the first part of Article 96-3 of the Criminal Code of Ukraine in a new edition, providing in them an indication of Articles 368-3 and 368-4 (in general), as well as Article 368 of this Code.