The old errors in the practice of criminal-legal qualification of actions related to deception and ways of overcoming them

Abstract

The publication is dedicated to the analysis of typical mistakes that have been made by law enforcement officers for many years in the process of criminal-legal qualification of the actions of persons who use deception or abuse of trust to acquire someone else's property. These mistakes are constantly subject to constructive criticism by scientists, analyzed in the acts of the Supreme Court, which contain well-founded prescriptions for solving the relevant problems. Despite regular efforts to encourage law enforcement officers to correctly understand the signs of relevant offenses, their misqualification remains consistently widespread. The specified actions are most often qualified under Art. 190 of the Criminal Code of Ukraine "Fraud". In this publication, in particular, it has been demonstrated that in fact such actions do not always fall under the characteristics of this article. Possession of property by deception is usually confused with situations where deception serves not as a way to acquire property, but as a way to gain access to it, which subsequently facilitates turning the property to one's advantage through theft or robbery. It is also noted that practitioners continue to see fraud where all the signs of Art. 368 of the Criminal Code of Ukraine "Acceptance of an offer, promise or receipt of an illegal benefit by an official". The authors echo the views expressed by many researchers and further strengthen the arguments against recognizing the relevant behavior as fraud. It was noted that such a mistake entails unjustified deprivation of the "status" of a corrupt official. A detailed argumentation is provided that the actions of an official, if they really correspond to the signs of Art. 190 of the Criminal Code of Ukraine cannot be qualified under this article. A special norm contained in Part 2 of Art. 191 of the Criminal Code of Ukraine. This rule can also be considered as "composite", which "doubles" the argumentation regarding its application, and not the totality of fraud and abuse of official position.