Issue: № 1, 2023
Doi: https://doi.org/10.37634/efp.2023.1.5
The paper is devoted to determining the grounds for bringing the auditor to criminal liability for abuse of authority. The Criminal Code of Ukraine provides for liability for abuse of authority by persons who provide public services. It is a crime to abuse one's powers by an auditor for the purpose of obtaining an illegal benefit, if this caused significant damage to the legally protected rights or interests of individual citizens, state or public interests, or the interests of legal entities. The guilty person shall be punished in the form of a fine from two thousand to four thousand non-taxable minimum incomes of citizens or restriction of liberty for a term of up to three years, or deprivation of liberty for the same term with deprivation of the right to hold certain positions or engage in certain activities for a term of up to ten years. Public danger of the act provided for in Part 1 of Art. 365-2 of the Criminal Code, due to the fact that abuse of authority by the auditor violates the established procedure for carrying out professional activities related to the provision of public services. Criminal liability for inaction arises under the conditions, if the auditor in a specific situation was obliged to perform a certain action and could perform it, however, failed to do so, for example failed to verify the details of the ultimate beneficial owner of the legal entity during customer due diligence. Abuse of authority is punishable as a criminal offense if it was committed for the purpose of obtaining an unlawful benefit and caused significant damage. Specific forms of abuse of powers by the auditor may be different and depend on the content of the granted powers and the scope of their application. The auditor's legitimate exercise of his powers excludes criminal liability.
Keywords : auditor, abuse of authority, criminal liability
References:
1. Criminal Code of Ukraine: Law of Ukraine dated 05.04.2001 # 2341–III. URL: http://zakon.rada.gov.ua/laws/show/2341-14 (in Ukrainian).
2. Criminal law of Ukraine: Special part / V.Ya. Tatsii et al. Kharkiv, 2020. 768 p. (in Ukrainian).
3. Criminal law (Special part): textbook / ed. O.O. Dudorov, Ye.O. Pysmenskyi. Luhansk, 2012. Vol. 2. 704 p. (in Ukrainian).
4. Shyndel Yu. I Abuse of authority by persons providing public services (Article 365-2 of the Criminal Code of Ukraine): some qualification issues. Bulletin of V.N. Karazin Kharkiv national university. Series: Law. 2012. № 1034. pp. 234-237. (in Ukrainian).
5. On the audit of financial statements and audit activity: Law of Ukraine dated 21.12.2017 # 2258-VIII. URL: https://zakon.rada.gov.ua/laws/show/225819/ed 20171221 (in Ukrainian).
6. Information sheet of the Audit Chamber of Ukraine vid 24.09.2021 r. URL: https://www.apu.com.ua/2021/09/24 (in Ukrainian).
7. On mortgage bonds: Law of Ukraine dated 22.12.2005 № 3273-IV. URL: https://zakon.rada.gov.ua/laws/show/3273-15#Text (in Ukrainian).
8. Economic Code of Ukraine: Law of Ukraine dated 16.01.2003 № 436-IV. URL: https://zakon.rada.gov.ua/laws/show/436-15 (in Ukrainian).
9. On the approval of the regulation on the State Audit Service of Ukraine: Decree of the Cabinet of Ministers of Ukraine dated 03.02.2016 r. № 43. URL: https://zakon. rada.gov.ua/laws/show/43-2016-p. (in Ukrainian).
10. On environmental audit: Law of Ukraine dated 24.06.2004 # 1864-IV. URL: https://zakon.rada.gov.ua/laws/show/1862-15#Text (in Ukrainian).
11. Decree of the Supreme Court of Ukraine dated 27.10.2016 № 5-99ks16. URL: https://zakononline.com.ua/court-decisions/show/62692636 (in Ukrainian).
12. Criminal responsibility for certain crimes in the field of official activity and professional activity related to the provision of public services / Yu.V. Udartsov et al. Kyiv, 2013. 180 p. (in Ukrainian).
13. Riabenko M.V. Criminal law protection of professional activity related to the provision of public services: dissertation … PhD in legal sciences: 12.00.08. Kyiv, 2016. 267 p. (in Ukrainian).
14. On Amendments to Certain Legislative Acts of Ukraine Regarding Provision of Personal Voting by People's Deputies of Ukraine at Plenary Sessions of the Verkhovna Rada of Ukraine: Law of Ukraine dated 19.12.2019 № 404-IX. URL: https://zakon.rada.gov.ua/laws/show/404-20#n6 (in Ukrainian).
15. Criminal Procedure Code of Ukraine: Law of Ukraine dated 13.04.2012 № 4651-VI. URL: https://zakon.rada.gov.ua/laws/show/4651-17 (in Ukrainian).