Скасування мораторію на обіг земель сільськогосподарського призначення – чи готовий до цього кримінальний закон України?

Abstract

The article clarifies the question of whether the current law of Ukraine on criminal liability needs to be changed in connection with the lifting of the moratorium on the circulation of agricultural land and the expected opening of the market for such land. It is proved that from the methodological standpoint it is more correct, when analyzing the relevant torts, to operate not with the term «abuse in the land market», which is popular in the legal literature, but with the wording «abuse in the sphere of land circulation». Based on the study of the relevant historical (drafts of the Criminal Code of Ukraine) and foreign (criminal codes of Azerbaijan, Russian Federation and some other countries) experience, as well as taking into account the doctrine of criminalization and differentiation of criminal liability, it is concluded that the introduction of special criminal law prohibitions in the field of land circulation is not expedient. In particular, it is proved that the amendment of the Criminal Code of Ukraine by the provision on liability for illegal registration of an illegal transaction with a land plot will violate such a systemic legal principle of criminalization as the principle of absence of gaps in the law and absence of excessive prohibition. The shortcomings of the doctrinal proposal to supplement the Criminal Code of Ukraine with a norm on abuse of the land market with an abstract disposition are demonstrated. Existing norms on criminal liability for crimes in the sphere of official activity and professional activity related to the provision of public services and crimes against property can be qualified as abuse in the sphere of land circulation are demonstrated. It is believed that the prevalence of these abuses is not the result of gaps in the current substantive law on criminal liability, but, inter alia, the result of failure to ensure the principle of inevitability of criminal response to the commission of already prohibited criminal offenses.