Nachynianyi D. Criminal liability for violation of the procedure for conducting gambling games and lotteries in Ukraine

The first chapter of the dissertation is devoted to clarifying the general principles of studying criminal liability issues for violation of the procedure for conducting gambling and lotteries in Ukraine. The author reveals the state of research on these issues in the domestic legal literature and investigates the social determinants of criminal liability for violation of the procedure for conducting gambling and lotteries in Ukraine. The second chapter deals with the legal analysis of the essential elements of criminal offences related to violation of the procedure for conducting gambling and lotteries. While characterising the objective features of this corpus delicti, the author has established that the generic object of the criminal offence under Article 203-2 of the CC of Ukraine is social relations in the field of economic activity. Its main direct object in the first two forms of the objective side is social relations, which establish the procedure for conducting economic activities related to the organisation and conduct of gambling and lotteries. It is proved that such an action as the organisation or operation of establishments to provide access to gambling or lotteries conducted on the Internet goes beyond relations in economic activity, given that such activity is prohibited. It is substantiated that social relations of morality are an additional object of this encroachment: in its first two forms – an additional optional one, and in the third form – an additional mandatory one. The main direct object of the criminal offence under Article 365-3 of the Criminal Code of Ukraine is social relations when law enforcement officer exercises the rights and duties defined by current legislation and principles of law. It is proved that social relations in the justice field are an additional optional object of this offence. The author establishes that the objective side of the criminal offence under Article 203-2 of the CC of Ukraine is characterised by three alternative forms of action. This action is a crime with a formal corpus delicti in all three forms. The author proposes to punish its commission dependent on the inevitable consequences of the action and to unify liability for unlicensed activities and activities carried out in violation of licensing conditions within one provision. It is suggested that the commission of an action provided for in the first two forms, in a significant amount, be recognised as a qualifying element. A significant amount is considered an income, 100 or more times higher than citizens' tax-free minimum income when committing a criminal offence. It is proposed to use only the term 'conducting' the state lottery to describe the second form of the action under Article 203-2 of the CC of Ukraine. This term also includes such an action as the 'issue' of the lottery. In the course of the study of subjective elements, it is stated that the question of the subject of the corpus delicti under Article 203-2 and Article 365-3 of the CC of Ukraine is practically devoid of controversy; however, some of its aspects require further scientific substantiation. In particular, the subject of illegal activities related to the organisation or conduct of gambling and lotteries is an individual who has not obtained a licence or the status of a lottery operator. In contrast, only a legal entity can get such a licence and the status of a lottery operator. Insufficiency of criminal law provisions that should and may be applied to such a legal entity is established. The author proposes to amend the current wording of Article 96-3 of the CC of Ukraine and to provide for among the group of defined therein-criminal offences in economic activity indication of Article 203-2 of the CC of Ukraine. The third chapter of the dissertation is devoted to the qualification and punishment of criminal offences related to violation of the procedure for conducting gambling and lotteries. It is proposed to exclude the indication of ‘the commission of an action by a group of persons by previous concert’ from Part 2 of Article 203-2 of the CC of Ukraine. In addition, such a qualifying element as the commission of this criminal offence by an organised group should be provided for in Part 3 of Article 203-2 of the CC of Ukraine. The study of the issues of punishability of criminal offences under Article 203-2 of the CC of Ukraine and Article 365-3 of the CC of Ukraine points out an incorrect construction of sanctions of indicated criminal law provisions. The author proves the excessiveness of criminal law repression for these actions and the violation of the principle of adequacy and fairness of punishment as a measure of criminal law influence. The generalisation of all the proposals for improving the provisions of criminal law set out in the thesis leads to the need to exclude Article 365-3 of the CC of Ukraine and to restate Article 203-2 of the CC of Ukraine in a new wording.