The thesis provides improvements to theoretical foundations of criminal law pertaining to criminal responsibility for misappropriation of property of the enterprise, institution, organization and elaborates on possible areas of further improvements to Article 206-2 of the Criminal Code of Ukraine and corresponding law-enforcement practices.
Wide occurrence of offences against property of enterprises, institutions, organizations in Ukraine, high latency of such offences, insufficient theoretical elaborations on the issue of criminal responsibility for misappropriation of property of enterprises, institutions, organizations as well as the shortcomings of the Article 206-2 of the Criminal Code of Ukraine and, consequently, its inefficient implementation by courts and law-enforcement authorities have all contributed to the choice of the subject of the presented thesis research.
The presented thesis serves as the first ever in Ukraine complex monograph research of the criminal responsibility for misappropriation of property of the enterprise, institution, organization. Particularly, the paper is the first research to substantiate that the primary object of the misappropriation of property of the enterprise, institution, organization is the ownership right; the subject of this crime correlates with the attributes of the subject of crimes against property; the criminal act, i.e. ‘misappropriation’ coincides with the attributes of such acts of crime against property as ‘theft’ and ‘embezzlement’; the definition of the moment of consummation of this crime coincides with the definition of the moment of consummation of such crimes as theft, robbery, fraud; the principal distinction between the crime under the Article 206-2 of the Criminal Code of Ukraine and the crimes against property with gainful intent is its corresponding modus operandi.
It has been proved that the misappropriation of property of the enterprise, institution, organization, by its structure, is the crime with materially defined constituent. Appropriation, as a mandatory element of the objective side, stipulates active behavior (action) – taking the property of the enterprise, institution, organization out of possession, disposal or use of the owner or the person, to whom it was legally entrusted, in the favor of the guilty person or other persons, his or other people’s enrichment at the expense of this property. A mandatory element of the objective side of the scrutinized crime is the onset of criminal consequences – reduction in owner's property and enrichment of the criminal offender at the cost of the owner, i.e. a mandatory objective element of the appropriation of property of the enterprise, institution, organization is the infliction of property damage to the owner. There must exist a cause-and-effect relation between appropriation and property damage to the owner of the enterprise, institution, organization, i.e. the damage is inflicted by the appropriation and not through any other actions or circumstances. For the objective side of the crime under the Article 206-2 of the Criminal Code of Ukraine its mandatory element is its modus operandi – committing the offence with the use of forged or stolen documents, seals, stamps of the enterprise, institution, organization.
The paper provides substantiations that the crime under the Article 206-2 of the Criminal Code of Ukraine is committed with direct intention, i.e. in the course of committing the criminal activity the individual is aware of the dangerous nature of his actions (that the individual commits the offence against property of the enterprise, institution, organization, not being legally entitled to it), anticipates the inevitable occurrence of public damage to legally protected interests (financial damage to the owner of the enterprise, institution or organization) and is consciously willing this damage to occur. In the majority of cases, the malefactor aims for enrichment at the cost of misappropriation of property of the enterprise, institution or organization. This suggests the striving of the malefactor to enrich himself and provide enrichment to the individuals, whose welfare is essential to the malefactor. Even though the gainful motive is not defined in the Article 206-2 of the Criminal Code of Ukraine as a mandatory condition for mental element of the offence, absence or presence of this motive with some of the participators in the criminal activities does not affect the decision to institute criminal proceedings against them. It suffices to establish the gainful purpose of this act. In the view of the authors, it is expedient to define gainful motive as a mandatory element of this crime in the disposition of the Article 206-2 of the Criminal Code of Ukraine.
