«Trading in influence» or «abuse of influence» is a problem of qualification

Abstract

The article analyzes the legislative tools designed to combat corruption, Art. 369-2 of the Criminal Code of Ukraine «Abuse of influence» occupies a special place. On the one hand, this prohibition is actively demanded in practice, on the other hand, its inclusion in the Criminal Code increased the casuistic nature of the latter, partially created an excess of legislative description of criminal behavior related to corruption, and due to non-compliance in this case with the principle of legal certainty, seriously complicated the application of Criminal Law of Ukraine in practice.
 The criminal offense provided for in Art. 369-2 «Abuse of influence» of the Criminal Code of Ukraine is quite difficult to understand and apply. In addition, there are certain problems with the proper criminal-legal qualification of criminal behavior at the junction of such corruption components of criminal offenses as Art. 369-2 and Art. 368 «Acceptance of an offer, promise or receipt of an illegal benefit by an official», Art. 368-3 «Bribery of an official of a legal entity of private law, regardless of the organizational and legal form», Art. 368-4 «Bribery of a person providing public services» of the Criminal Code of Ukraine.
 The norm of Article 369-2 of the Criminal Code of Ukraine is the result of the implementation of Article 12 of the Criminal Convention of the Council of Europe on the fight against corruption and Art. 18 of the UN Convention against Corruption. However, this implementation is far from perfect, which always creates problems for law enforcement.
 The origin of the concept of «abuse of influence» is interesting. Most likely, it is the fruit of creativity of the Ukrainian legislator. After all, the concept of «trading in influence» is used in international acts, which in translation means trading in influence, but not abuse.
 Thus, the specified composition of the criminal offense was permanently problematic in qualification and, accordingly, in understanding. For a long time, difficulties arose with the application of the note, which has lost its validity, and, accordingly, with the definition of the person authorized to perform the functions of the state. And although this problem was later settled by the legislator, the question of the nature of the influence still remains debatable: whether it must necessarily be connected with the official position or whether it is possible to use friendly, family and other ties - the appropriateness of fixing as a separate qualifying sign of extortion, as well as the type of subjects of the specified crime.