Problems Of Criminal-Legal Qualification Of Certain Crimes, The Subject Of Which Is Illegal Gain

Abstract

The analysis of the main problems related to the criminal-legal qualification of accepting an offer, promise or receiving an illegal benefit under the criminal law of Ukraine is carried out. The main problems of qualification of actions related to the acceptance of an offer, promise or illegal benefit in the doctrine of criminal law of Ukraine and the practice of application of the provisions of the analyzed articles in law enforcement and the judiciary. It is established that the problematic issues of qualification of these socially dangerous acts were and remain the following aspects: establishing the content of the features that characterize the subject of these offenses, namely «official», because despite the normative definition of this concept, certain aspects remain unexplored and further cause considerable difficulties in the law enforcement process; delimitation of the composition of acceptance of the offer, promise or receipt of illegal benefit by the official from other structures, the subject of which is the illegal benefit, as well as other components of crimes; the lack of a legislative definition of the minimum amount of illegal benefit, which does not hide the proper possibility of distinguishing a socially dangerous act from an insignificant one. The solution of these and other problems is carried out through the prism of the analysis of judicial practice, as well as the development of criminal law doctrine within the subject of this study. The analysis allowed to substantiate that: first, the official may be the subject of a crime under Art. 368 of the Criminal Code when she receives remuneration for the performance or non-performance of precisely those functions that define her as occupying her official position; secondly, qualifying features will occur when an official holding such a position is remunerated for performing or failing to perform precisely those functions that define him or her as occupying a responsible and particularly responsible position; thirdly, the objective side of the crime does not depend on the active or passive behavior of the official, ie on his performance or refrain from performing certain actions in favor of the person giving the illegal reward or in the interests of third parties.