Criminal law sanctions for misappropriation, embezzlement or seizure of property through abuse of office

I. I. Cherkashyn; Yu. V.  Filei

doi:10.32631/pb.2023.2.03

I. I. Cherkashyn Advocate Association “Cherkashin Legal Company” (Zaporizhzhia) https://orcid.org/0000-0001-8995-051X
Yu. V. Filei National University “Zaporizhzhia Polytechnic” https://orcid.org/0000-0001-5919-1129

DOI: https://doi.org/10.32631/pb.2023.2.03

Keywords: criminal law sanctions, punishment, criminal offences, imprisonment, release on probation.

Abstract

The concept of criminal law sanctions has been analysed, the classification of criminal law sanctions for misappropriation, embezzlement or seizure of property through abuse of office has been studied, and the peculiarities of building criminal law sanctions for crimes under Article 191 of the Criminal Code of Ukraine have been revealed. It has been concluded that a sanction is a mandatory component of an article (or part of an article) of the Special Part of the Criminal Code of Ukraine which contains a model of the type and scope of punishment which is adequate to the social danger of a criminal act. The sanction reveals the legal aspect of criminal punishment, indicating its type and scope, while acting as a model of criminal punishment provided for the crime.

One of the most important and necessary prerequisites for the court to determine the lawful and, therefore, appropriate punishment is strict compliance with the requirements of Article 65 of the Criminal Code of Ukraine on imposing punishment within the limits established in the sanction of the article of the Special Part providing for liability for the crime. Taking this requirement into account implies that in each particular case the court should be guided by the types and amounts of punishment provided for by the relevant sanction of the criminal law, as well as by the provisions of the General Part. This means that the sanction must be mandatory.

The law should, of course, give judges a choice so that the sentence can be appropriate to the gravity of the offence and the person involved. However, this should not go beyond the limits of social justification and undermine the general deterrent function of criminal sanctions. Therefore, a judge must clearly know the rules by which he or she can assess the significance of a particular circumstance in order to determine the amount of punishment. This is the approach used in the draft CC of Ukraine.

Downloads

Download data is not yet available.

Author Biography

Yu. V. Filei, National University “Zaporizhzhia Polytechnic”

Candidate of Law, Professor.
Faculty of Law.

References

Babanly, R. Sh. (2019). Punishment in Ukraine: theoretical and applied principles. Desna Polygraph.

Bakurova, A., Pasichnyk, M., Tereschenko, E., & Filei, Yu. (2019). Fuzzy production model for managing court decisions in the case of theft. CEUR Workshop Proceedings, 2422, 284-296.

Burdin, V. M. (2004). Sanctions of individual articles of the Special Part of the Criminal Code of Ukraine require changes. Life and law, 4, 44-51.

Denysova, T. A. (2004). Criminal punishment and the functions of its appointment and execution under the legislation of Ukraine. Humanitarian University “ZIDMU”.

Dudorov, O. O., & Khavroniuk, M. I. (2014). Criminal law (M. I. Havronyuk, Ed.). Waite.

Filei, Yu. V. (2003). Concept of criminal sanction. Bulletin of the Prosecutor’s Office, 11, 30-35.

Filei, Yu. V. (2018). Correlation of humanism and effectiveness of criminal and legal response measures. Research Papers of National University “Odessa Law Academy”, 22, 130-135.

Frolova, O. G. (1997). Crime and the system of criminal punishments (social, legal and criminological problems and ways to solve them using logical and mathematical methods). ArtEk.

Gutorova, N. O. (2002). Problems of criminal legal protection of state finances of Ukraine [Doctor dissertation, Kharkiv National University of Internal Affairs].

Gutorova, N. O. (2003). Crimes against public finances: the mechanism of construction of criminal sanctions. Bulletin of National University of Internal Affairs, 23, 11-14.

Horokh, O. P. (2009). Problems of construction of sanctions of special criminal law norms. Scientific notes of NaUKMA. Series «Legal Sciences», 90, 94-98.

Kistyakovskii, A. F. (1891). Elementary textbook of general criminal law. Kyiv University.

Knyzhenko, O. O. (2005). The influence of qualifying features on the limits of criminal sanctions. Law and Safety, 4, 73-75.

Knyzhenko, O. O. (2010). The concept of sanctions in criminal law. Bulletin of Kharkiv National University of Internal Affairs, 1, 79-84.

Korabel, M. (2020). Legal analysis of the formation of sanctions of the criminal law norm. Entrepreneurship, Economy and Law, 2, 287-291. https://doi.org/10.32849/2663-5313/2020.2.48.

Muzyka, A. A., & Horokh, O. P. (2012). Punishment and its application for crimes against public health. Palyvoda A. V.

Nazymko, Ye. S. (2013). Institute of punishment in the system of means of criminal law regulation of social relations: theoretical aspect. Entrepreneurship, Economy and Law, 1, 111-113.

Orlovska, N. A. (2012). Sanctions of criminal law norms: principles and principles of formation [Doctoral thesis, Odessa Law Academy National University].

Ponomarenko, Yu. A. (2020). The general theory of determining the punishment of criminal offenses. Right.

Sakharuk, T. V. (2013). The sanction as the legal limits of punishment under the criminal law of Ukraine and the USA. Bulletin of the National University of Internal Affairs, 23, 135-140.

Siiploki, M. V., & Nytka, Ya. M. (2022). Sanctions in the system of criminal legal means of protection of security activities. Scientific Bulletin of the Uzhhorod National University. Series: Law, 69, 412-417. https://doi.org/10.24144/2307-3322.2021.69.69.