The dissertation is the first special complex research in Ukraine where the need to both abandon the use of the notion of abduction for characterizing violations against property and introduce the notion of embezzlement and identify its forms in the Criminal Code of Ukraine (hereinafter – the CC).
It is stated that there are two main approaches in international practice on the regulation of criminal liability for violations against property (property infringements) associated with taking by the offender of another’s property in one’s favor or favor of third parties. The first one is based on the idea of the need of creating a synthesizing concept that would encompass all present and potential means of final (i.e. ‘permanent’) possession of another’s property, revealing their common features and, at the same time, without depriving specific features. This approach was practiced by the domestic legislature until the early 2000s and is practiced by the legislators of some states, trying to give this concept a normative status. In foreign legislation the tendency to create a certain collective concept that could be used to describe property encroachments, if any, has not been further developed.
Another approach is based on casuistic principles where a legislator, directly in the norms of the criminal law, tries to thoroughly describe certain features of specific violations against property, considering not only the criminal law but also the forensic features of the commission. The absence of the generic concept with this approach precludes ‘generic’ clarity of protected relations, does not allow explicitly delimit infringement on such relations from related concepts, and contributes to unreasonable growth in several special criminal offenses.
It is proved that the concept of abduction present in the CC has threefold nature. It 1) is a part of actus reus of both a theft and a robbery; 2) serves as a collective function for characterizing certain criminal offenses against public safety, public health, the authority of government, local government or associations of citizens, established procedure of military service, encompassing a theft and a robbery and sometimes and a robbery accompanied with violence, and even brigandism; 3) is a part of actus reus of a certain criminal offense against the liberty of a person.
It is concluded that all three options of using the concept in the current CC are unsuccessful which determines the expediency of abandoning to use it both in the description of infringements on property relations and in the description of substantive infringements on other objects protected by the CC.
It is substantiated that the further development of national criminal legislation regarding infringement of property should be associated with the return to the criminal legal plane of such a concept as embezzlement.
It is substantiated that the concept of abduction emphasizes the focus of the act on property relations, when the object of criminal influence is their subject, which has all the necessary features. It can be confiscated secretly or openly to others (the object itself is inanimate and can not realize anything), with the use of violence or deception, which is directed not at the object but at its owner or using certain powers against him. Therefore, embezzlement is always associated with a reduction in the property of the owner or other owner of the property, and not with a reduction in the number of human beings who are in a state of physical freedom.
It is stated that the term of embezzlement cannot be applied to those cases when there is an encroachment on non-material relations. Such encroachments could be characterized by the term "possession". This would avoid the identification of concepts such as seizure (acquisition) and seizure, and, in the end, would contribute to a clearer distinction between embezzlement and related criminal offenses.
It is concluded that the concept of embezzlement should receive legal status. The expediency of supplementing the CC with the following definition: ‘Abduction in the Articles of Section VI of this Code should be understood as the unlawful gratuitous seizure or circulation of someone else's property, committed for mercenary purposes, as well as the acquisition of the right to someone else's real estate that caused harm to the owner or other lawful owner of this property or the right to it’.
It is argued that an abduction is a form of embezzlement along with theft, robbery, brigandism, fraud, misappropriation, embezzlement, or conversion of property by malversation provided by the Art. 189 Para. 1 of the CC is subject to amendment. Issues regarding forms of embezzlement should also be resolved at the legislative level.
