DISTINGUISHING BETWEEN THE ART. 206 OF THE CRIMINAL CODE OF UKRAINE «RESISTANCE TO LEGITIMATE BUSINESS ACTIVITY» AND THE ART. 355 OF THE CRIMINAL CODE OF UKRAINE «DURESS TO PERFORMING OF CIVIL OBLIGATIONS» IN THE ASPECT OF THE CONTRACT FREEDOM ABUSES

Abstract

The principle of freedom of the contract means that the parties are free to conclude the contract as well as to choose the contractor under the contract and in determining the conditions of the contract. The violation of this principle is generally the civil tort. However, violent forcing the parties to conclusion or performing the contract constitutes crime in cases stipulated by the Criminal Code of Ukraine. Article 206 of the Criminal Code of Ukraine «Resistance to legitimate business activity» criminalizes the demand to enter into the agreement or not to execute the agreement. Article 355 of the Criminal Code of Ukraine «Duress to performing of civil obligations» forbids the demand concerning performing or non-performing the agreement. Such demands in both crimes are connected with the mental or physical violence. This increases the danger of such behavior to society to the level of crime, because without violence such claims are not crimes itself. The term «agreement» in these articles has the different content. In Art. 206 of the Criminal Code of Ukraine it means only the agreements concluded in the framework of economic activity. This follows from the basic direct object of the offense (freedom of legitimate economic activity) and characteristics of the victim (the business entity). At the same time the agreement in art. 355 Criminal Code of Ukraine should be regulated by the civil law. A broad approach to the interpretation of this term should be used. Agreement in this case means all private agreement regardless of the specific branch of the law (including employment law, family and commercial law etc.) concluded between legally equal and independent subjects. Accordingly, the term «agreement» in the Art. 355 Criminal Code of Ukraine is broader in its content than the same term in the art. 206 of the Criminal Code of Ukraine. In the Art. 206 of the Criminal Code of Ukraine the requirements violating the principle of freedom of contract may be presented at the stage of contract concluding as well as at the stage of it performing. Instead of this, in the art. 355 Criminal Code of Ukraine the demands apply only to the stage of the performing of the contract that has been in force already. It is difficult to distinguish requirements «not to fulfill the agreement» in both Art. 355 of the Criminal Code of Ukraine and Art. 206 of the Criminal Code of Ukraine. «Duress to performing of civil obligations» is the offense, which establishes criminal liability for creditors who aim to realize their legal requirements (often, debt recovery) to the debtor-victim by the means of violence. On the contrary, a claim not to fulfill the agreement pursues the opposite goal - to force the debtor to violate his obligations. Thus, the requirement not to fulfill the agreement as an element the crime of «Duress to performing of civil obligations» is superfluous. Such a requirement should be qualified using the art. 206 of the Criminal Code of Ukraine.