Open AccessThe Right to Property and Property Rights as Objects of Possession, which is Committed by the Abuse of an Official by his Official Position (Part 2 of Article 191 of the Criminal Code of Ukraine)
Author(s) -
Pavlo Serhiiovych Berzin,
Ruslan Anatoliiovych Volynets,
Mykhailo M. Khomenko
Publication year - 2021
Publication title -
vìsnik asocìacìï krimìnalʹnogo prava ukraïni
Language(s) - English
Resource type - Journals
ISSN - 2311-9640
DOI - 10.21564/2311-9640.2021.15.235700
Subject(s) - possession (linguistics) , law , property (philosophy) , property law , political science , civil code , adverse possession , public property , criminal law , property rights , numerus clausus , supreme court , real property , law and economics , sociology , land law , history , philosophy , land tenure , epistemology , linguistics , archaeology , agriculture
The article analyzes the criminal and civil understanding of the concepts of "foreign property", "right to property" and "property law". Different meanings of these concepts are considered. Differences in criminal and civil law understanding of these concepts and their relationship are established.
It is substantiated that the subject of possession provided for in p. 2 art. 191 of the Criminal Code is only someone else's property, not the right to property and property rights.
It is substantiated that the concept of "property" in the relevant compositions of criminal offenses against property performs other functions than the concept of "property" in civil law, and that the criminal law understanding of property and civil law definition of property in p. 1 of art. 190 of the Civil Code are unequal (different).
On this basis and taking into account the legal positions of the Supreme Court and the Supreme Court of Ukraine, the conclusion is formulated that the subject of possession in the relevant composition of criminal offenses against property can be only someone else's property, not the right to it or not a property actions.
The concepts of “property right” and “right to property” are not identical, and the concepts of “property right”, the term "right to property" constitute real rights on the property, but no other rights that are not property.
In view of this, the possession by an official by abusing his official position the right to property or, in other words, the possession by an official by abusing of the right to property cannot be qualified under the relevant part of art. 191 of the Criminal Code.
In addition, the article analyzes the definition of "right to property", which affect the recognition of the right to property as a kind of "subject" of the so-called "selfish abuses" under art. 364, 364-1 of the Criminal Code.
It is emphasized that when an official possession the right to property committed by abusing his official position, he cannot qualify under the relevant part of art. 191 of the Criminal Code, as there is no such mandatory feature of p. 2 of art. 191 of the Criminal Code of abuse as someone else's property that is the subject of abuse.