Tsyvinskyi O. I. Liability for misappropriation of other people's property committed by an official under the criminal law of Ukraine. Qualification scientific work on the rights of manuscript.
Dissertation for the degree of Doctor of Philosophy in the speciality 081 "Law". Lviv State University of Internal Affairs. Lviv, 2023.
The dissertation is a comprehensive monographic study of the issues of criminal responsibility for the illegal acquisition by officials of other people's property in Ukraine.
The work consists of three chapters. The first chapter is devoted to the general principles of studying liability for misappropriation of property by officials. The author analyses the state of research on the selected issue, which has shown that the content and scope of the concept of misappropriation of another's property, certain essential features of the concept of an official (age, "special" sanity, performance of functions of a representative of government or local self-government) are controversial, recognition of certain categories of persons as officials (in particular, founders and beneficiaries of a legal entity, individual entrepreneurs), the content of the concept of use (abuse) of official position, interpretation of the features of specific corpus delicti of criminal offences involving the misappropriation of property, in particular, the terms entrusted property and property under the person's control, misappropriation, embezzlement, misappropriation through abuse of official position, etc., the correlation between the rules on misappropriation of property through abuse of official position and the rules on abuse of power or position, distinguishing extortion and fraud from obtaining an unlawful benefit by an official, distinguishing between certain criminal offences involving the misappropriation of another's property.
By studying the concept of an official, the author substantiates the need to amend Parts 3 and 4 of Article 18 of the Criminal Code of Ukraine in order to link such status with the performance of certain functions rather than holding any positions. The author concludes that persons performing the functions of a government representative are those who are authorised to make demands and decisions on behalf of the State or its bodies which are binding on external respondents (individuals who are not subordinates or legal entities), as well as to apply coercive measures on behalf of the State and its bodies in cases of violation of legal norms; and by persons exercising local self-government functions - persons with similar powers within the territorial community.
The second section is devoted to the issues of criminal law assessment of misappropriation of property by an official. The study of the concept of unlawful seizure of another's property has led to the conclusion that it should be understood as intentional actions committed against the will of the owner or actual owner or ignoring their will, which consist in establishing full physical control over property which is owned by another individual or legal entity or is in the illegal possession of another person, and enable the use and disposal of such property at their own discretion. The author establishes that the scope of this concept covers the acts envisaged by Articles 185-191, 197-1, 201-2; 206-2, 262, 278, 289, 297, 308, 312, 313, 410 and 432 of the CC of Ukraine.
The third section is devoted to the limits of punishment for misappropriation of another's property committed by an official and the issues of improving the regulation of criminal liability for such acts. Based on the theory of building sanctions of criminal law provisions, the author establishes the inconsistency of the limits of punishment for criminal offences which are similar in nature and degree of public danger and the insufficient provision of opportunities for individualisation of criminal liability. The author proposes a number of changes to the sanctions of the relevant provisions. In addition, the author formulates recommendations on sentencing for misappropriation of another's property committed through abuse or exploitation of official position. The author substantiates the possibility and expediency of applying the provision on exemption from serving a sentence with probation in case of approval of a plea agreement.
The article proposes two ways to improve the regulation of criminal liability for misappropriation of another's property by an official.
