Grounds for application of criminal law measures to legal entities - a critical look

The article highlights the problem of regulatory regulation in the current Criminal Code of Ukraine, as well as in its draft, of the grounds for applying criminal law measures (criminal law remedies) to a legal entity. The analysis of the scientific literature has shown that scholars, as well as the drafters of the Criminal Code of Ukraine, have not identified the criteria for selecting those criminal offenses which are the basis for applying criminal law measures to a legal entity if committed by an authorized person on behalf of and/or in the interests of a legal entity. The author proposes a number of conclusions necessary to improve the grounds for application of criminal law measures against legal entities. The grounds for application of such measures are of a regulatory and definitional nature, since they are provided for in the norm of regulatory (part 1) and definitional (note to the article) nature, and the application of the relevant components should be carried out as a whole and together. The grounds for application of criminal law measures are provided in six separate paragraphs. The substantive part of the grounds contained in paragraphs 1, 3-6 of Part 1 of Article 96-3 of the CC contains different components: actions on behalf of and in the interests of a legal entity (paragraphs 1, 4-6) and actions on behalf of a legal entity (paragraph 3). In the first case, it is necessary to establish the mandatory presence of the above components. The presence of a logical contradiction in clause 2 of part 2 of Article 96-3 of the CC, which provides for the failure to ensure the fulfillment of the obligations imposed on the authorized person by law or the constituent documents of the legal entity to take measures to prevent corruption, and the commission of non-corruption criminal offenses by subordinates under Articles 209 and 306 of the CC. There are no criteria for determining the list of criminal offenses for which the authorized person may apply criminal law measures to a legal entity. The author suggests that the main criterion for compiling the list of such criminal offenses should be the need for Ukraine to fulfill international treaties ratified by the Verkhovna Rada of Ukraine.