The concept and legal nature of abuse of special status opportunities in the criminal law of Ukraine

Abstract

The article deals with the determining of the legal nature and definition of the concept of abuse of special status opportunities in the criminal law of Ukraine. Regarding given problem author notes following issues as deliberative: the legal nature of abuse of special status opportunities in criminal law; the scope - what can be misused; the matter of the relevant prohibition under criminal law and the adequacy of its legal enshrinement; the correlation between abuse and excess as forms of illegal behavior of a special subject; proposals for improving the law regulation of criminal liability for abuse of special status opportunities.Author makes an attempt to formulate rationale for general abstract prohibition of abuse of special status opportunities as a type of breach of trust in a broad sense. Currently there are three adjacent corpus delicti which are provided for in Articles 364, 364-1 and 365-2 of the Criminal Code of Ukraine. Own considerations on the discussed issues are also given. Prohibition of the abuse of special status opportunities, which now exists in the criminal law of Ukraine, should be seen as a general norm of criminal offense and it can be defined as “the use by an official or a person, who provides public services (special subject), of special status opportunities contrary to the interests of the state, a legal entity, or the provision of public services in order to gain an undue advantage either for themself or for any other person, where such action caused significant damage to a person, legal entity, interests of the state or public interests”.Author rejects the proposal to exclude general norm(s) of prohibition of abuse of special status opportunities from the Criminal Code of Ukraine. There were given some arguments concerning necessity of the preserving of the abstract norm.