REGARDING THE CONTENT OF THE CONCEPTS «HARM» AND «OTHER PERSON» IN ARTICLE 364 OF THE CRIMINAL CODE OF UKRAINE

Abstract

In recent years, a problem has arisen in Ukraine, which consists in a sharp drop to almost zero in cases of application of Article 364 of the Criminal Code of Ukraine regarding responsibility for abuse of power or official position, although 10-12 years ago there were hundreds of cases of conviction under this article. Courts often refer to the fact that this article is formulated in violation of the principle of legal certainty, which is true. In particu-lar, the problem is the uncertainty of the content of the concepts of "damage" and "other person" used in Article 364. Most scholars and practitioners agree that the concept of "dam-age" does not include lost profits, but courts in some cases base their decisions on a different position. The author of the article provides arguments in favour of the fact that lost profit is a private law concept, and its direct transfer to criminal law is inadmissible in view of the principles of legality, legal certainty and justice. If the legislator wishes to criminalise a par-ticular act, it must be described in the law in a specific and clear manner so that the court has no doubt that it is this act that entails criminal (and only criminal) liability. For this purpose, and based on the arguments presented in this article, it is proposed to define the concept of property damage in the Criminal Code of Ukraine, which may substantially co-incide with the civil law concept of actual damages. Also, the Criminal Code should provide for criminal liability for illegal, including those committed in violation of the procedure es-tablished by law: 1) determination of the price (tariff, rate, etc.) at which goods are sold, services are rendered or work is performed; 2) provision of property, services or perfor-mance of works for the state or municipal account free of charge, regardless of whether the relevant act caused property damage. Its subject must be an official who performs functions at a state, municipal or equivalent enterprise that enable him/her to determine prices (tar-iffs, etc.) or dispose of property.