Correlation between the provisions on abuse of power or official position and on abuse of power or official authority: issues of quality of regulation and law enforcement

The article revises the correlation between the provisions of the Criminal Code of Ukraine (hereinafter - CC of Ukraine) on abuse of power or official position (Art. 364) and on abuse of power or official authority (Article 365) after the amendments made by the Law of Ukraine No. 746-VII dated February 21, 2014 “On Amendments to the Criminal Code and the Code of Criminal Procedure of Ukraine regarding the implementation of Article 19 of the UN Convention against Corruption into national legislation”. The key issues addressed in the article are: is the abuse of power or official authority committed by other persons (other than a law enforcement officer), and which at the same time are not covered by other provisions of the CC of Ukraine on abuse of power or official authority, not criminalized? And can such abuse of power or official authority be considered a form of abuse of power or official position? Based on the results of the scientific review, it is proved that the criminal law concept of abuse of power or official position for the purpose of obtaining unlawful benefit in fact unconditionally means going beyond the limits of authority, and therefore includes abuse of power or official authority (except for those committed by a law enforcement officer or provided for by other variant provisions of the criminal law of Ukraine). At the same time, the provision on abuse of power or official position (Article 364 of the CC of Ukraine) cannot be considered general in relation to the provision on abuse of power or official position (Article 365 of the CC of Ukraine), since the criminal offense defined by it contains an indication of the purpose - obtaining an unlawful benefit, which is not a mandatory element of the criminal offense of abuse of power or official position. The rules enshrined in Articles 364 and 365 of the CC of Ukraine are variant rules, part of the so-called association of rules on different elements of abuse of power or position. If an act contains both elements of a criminal offense - abuse of power or official position and abuse of power or official authority (for example, abuse of power or official authority committed by a law enforcement officer with the aim of obtaining an unlawful benefit), the act should be qualified under the provision providing for a more severe punishment (Article 365 of the CC of Ukraine).