The thesis is the first systematic criminal research in Ukraine on issues of exemption from criminal liability for intentional evasion from paying taxes, duties (compulsory payments) on the basis of part 4 of art. 212 of the Criminal Code of Ukraine (hereinafter – the Criminal Code) and non-prosecution in connection with the achievement of a tax compromise on the basis of part 5 of art. 212 of the Criminal Code of Ukraine.
The paper reviews the history of the development of legislation on this type of exemption from criminal liability, analyzes foreign experience on this issue, examines the current state of development of the identified issues. In the thesis is determined by the set of features of the criminal law characteristics of the crime under Art. 212 of the Criminal Code, which, in addition to the mandatory elements of the crime, include the so-called accompanying signs that occur when it is committed, in particular, the public danger and the subject of the crime, the method of its commission, the motive and purpose, as well as the identity of the offender.
It is noted that the sub-institute of exemption from criminal liability for willful evasion of taxes, duties (compulsory payments) corresponds to the general features of the institution of exemption from criminal liability and has specific specific characteristics that give grounds to recognize it as a special type of exemption from criminal liability.
It is established that the exemption from criminal liability for evading taxes, duties (compulsory payments) under Part 4 of Art. 212 of the Criminal Code by its legal nature is a measure of criminal law nature, consisting in the early termination of criminal law relations without the implementation of criminal liability and other adverse consequences of a criminal law nature. The circumstances that led to the introduction of the Criminal Code, Part 4, Art. 212, in particular, organizational and legal, socio-psychological and economic circumstances. It is indicated that the prerequisite for exemption from criminal liability under Part 4 of Art. 212 of the Criminal Code is the commission of one of the types of criminal acts provided for by Part 1, Part 2 or Part 3 of Art. 212 of the Criminal Code, provided that the person who committed the specified acts is not convicted for them. At the same time, the basis of such exemption is defined as a positive post-criminal behavior of a person, which includes two components: 1) personal payment by an individual who committed the relevant actions, taxes, duties (compulsory payments) and 2) personal compensation for harm caused by their late payment (financial sanctions, penalties ).
The work also establishes the circumstances that led to the introduction of a tax compromise in the Criminal Code, among which the dominant value is recognized as economic and political, and the legal nature of the tax compromise, stipulated by Part 5 of Art. 212 of the Criminal Code, the achievement of which is proposed to be considered a different criminal law measure, the terms of which are regulated by tax legislation. It is noted that the cause of non-criminal liability under Part 5 of Art. 212 of the Criminal Code in connection with the achievement of a tax compromise is the commission by a person of socially dangerous acts provided for by art. 212 of the Criminal Code, solely by lowering the tax liabilities on corporate income tax and / or VAT for any tax periods up to April 1, 2014, regardless of whether the person has a criminal record for this crime. In this case, the basis for non-criminal liability for h. 5, Art. 212 of the Criminal Code recognizes the achievement of a tax compromise - a positive consideration by the supervisory authority of the payer’s statement about the intention to reach a tax compromise and paying the payer to the budget 5% of the amount of the understated tax liability for corporate income tax and / or VAT. Specify the requirements that this foundation must meet.
According to the results of the research, scientifically based proposals are being formulated to improve the existing criminal law of Ukraine and its practice in this area.
