The solicitation of an undue advantage: theoretical and practical problems caused by the legislative virus, and their comprehensive solution

• Main Author: Василь Миколайович Киричко
• Format: Article
• Language: English
• Published: Yaroslav Mudryi National Law University 2018-03-01
• Series: Проблеми Законності
• Subjects: corruption; corruption crimes; undue advantage; solicitation/request of an undue advantage; legislative virus
• Online Access: http://plaw.nlu.edu.ua/article/view/123614
• ISSN: 2224-9281; 2414-990X

There is a legislative virus in the system of the Criminal Code of Ukraine. It concerns articles 154, 368, 368-3, 368-4, 369, 369-2. The virus exists in the form of such legislative provisions, according to which the specified articles of the Criminal Code of Ukraine cover actions that should be recognized as lawful. As a result of the virus, those persons who must be recognized as victims of a crime are convicted of crimes. The legislative virus is associated with the notion of “solicitation of an undue advantage” contained in Articles 15, 16, 18, 21 of the UN Convention against Corruption and the notion of “request of any undue advantage” contained in Articles 2, 8, 12 of the Criminal Law Convention on Corruption (ETS 173).  In accordance with conventions, these concepts do not include the threat of causing harm to human rights. In the aforementioned articles of the Criminal Code of Ukraine, there are two types of “solicitation/request of an undue advantage”. The first kind is the same as in the conventions. The second type is always combined with the threat of violation of rights. The virus belongs to the second of these values. The negative consequences of the legislative virus are the condemnation of persons who were giving of any undue advantage to protect their rights from threats and did not intend to persuade another person to violate their official duties. As a result of the legislative virus, those who did not commit corrupt acts and who should be recognized as victims of a crime are condemned for committing a crime. Such a violation of the rights of citizens is subject to legislative provisions that the author considers to be false and requires correction. The solution to the theoretical and practical problems caused by the specified virus is possible only by introducing several changes to the system of the Criminal Code of Ukraine. Projects of such changes are developed by the author and reflected in the publication. In case of their adoption, the specified legislative virus will be completely eliminated.