PROBLEMS OF INTERPRETATION OF THE CONCEPTS OF “APPROPRIATION”, “EMBEZZLEMENT” AND “ACQUISITION BY ABUSE OF OFFICIAL POSITION” IN ARTIC LES 191, 262, 308, 312, 313, 410 OF THE СRIMINAL CODE OF UKRAINE

Abstract

Considering the content of the concept of appropriation, some authors focus on the seizure of property as a sign of appropriation, others – on the retention of property, and the third ones – on the transfer of property to one’s own benefit. In the article the authors substantiate the thesis that the owner or a person authorized by the owner, after entrusting the property or handing it over, does not cease to own it. On the basis of this thesis, a conclusion was made about two key signs of appropriation – complete removal of property from the owner’s possession and turning it to one’s own benefit. At the same time, such removal of property from the possession of the owner consists in the fact that the latter or persons authorized by him lose the opportunity to dispose of this property. The content of the concept of embezzlement in scientific sources is mainly considered through the prism of its difference from appropriation. Within the limits of this article, the position is defended, according to which, when a person embezzles property, the ownership of this property does not change from legal to illegal, but instead, such property is alienated in a certain way. When distinguishing between appropriation and embezzlement, as signs of the objective side of the composition of a criminal offense, it is suggested to proceed from the fact that in Art. 191 of the Criminal Code of Ukraine, they are used as alternatives. Appropriation is considered as the illegal transfer of entrusted property or someone else’s property that is in trust for one’s own benefit, including its further consumption, alienation or other actions related to the removal of such property from a person’s possession. Embezzlement covers only cases that are not related to the transfer of property to one’s own benefit. The existence of such a form of objective party in Art. 191 of the Criminal Code of Ukraine allows criminal liability to cover cases when a person does not use property for his own benefit, even for a short time: transfer of entrusted or given property to other persons, granting permission or intentionally creating opportunities for seizure, consumption of such property by third parties, etc. It is grounded that when qualifying criminal offenses provided for in Articles 262, 308, 312, 313 and 410 of the Criminal Code of Ukraine, where embezzlement is not defined as a separate form of committing a criminal offense, the relevant acts can be assessed only as acquisition by the abuse of official position (second parts of these articles); at the same time, in case of committing such acts without using the official position, only Art. 191 of the Criminal Code of Ukraine can be applied as a general rule. To ensure the systematic differentiation of responsibility, embezzlement should be provided as a separate feature of the objective side of the composition of the criminal offense in all the listed articles. On the basis of a systematic interpretation of legal norms, it was concluded that the concept of acquiring someone else’s property through the abuse of official position covers only the acquisition by a person of someone else’s property, which is not in his possession and is not entrusted to him. In the article, it is substantiated that only powers related to the performance of organizational and administrative functions can be used when acquiring property through the abuse of official position. In turn, the use of administrative and economic powers will indicate the appropriation or embezzlement of property, and the abuse of the powers of a representative of the authorities or local self-government indicates the presence of another criminal offenses, such as theft, fraud, etc.