Criminal and legal characteristics and qualification of enterprise, institution or organization’s employee’s bribery (Art. 354 of the Criminal Code of Ukraine)

Abstract

The article is devoted to the clarifying of the content of Art. 354 of the Criminal Code of Ukraine. The legal relationships that provide a compliance with the regulatory procedure of the citizen’s rights and freedoms’ realization in the terms of relations with enterprises, institutions or organizations are explored. Court practice concerning receiving (giving) illegal benefit is analyzed.

According to the article mens rea (ch. 3, p. 4 Art. 354 of the Criminal Code) is characterized by direct intention.

If illegal benefit directly receives the third person, that fact must be realized by employee of a company, institution or organization who is not an official or a person who is working for them.

The purpose of the offense is the desire of employee of enterprise, institution or organization, who is not an official, or a person working in their favor, to get unlawful benefit for himself or a third party. The motive is usually selfish, but may be different and doesn’t affect a qualification.

It is also stated in the article that intentions of the person to commit certain actions or no do not influence a crime to be qualified as a finished one.

The author points out that when employee of a state enterprise, institution or organization, who is not an official, or a person working on their behalf, provoked providing him illegal benefit and took it, however didn’t plan to act in the interests of the person who gave such benefit or that of a third person, his actions in the presence of other necessary traits will form incitement to bribery (ch. 4 Art. 27 of the Criminal Code, ch. 1 or ch. 2 Art. 354 CC) and composition of fraud (Art. 190 CC). The person who provided the undue benefit, shall be responsible for ch. 1 or ch. 2 Art. 354 of the Criminal Code.