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PREVENTING AND COMBATING CORRUPTION: TERMINOLOGY OF LEGISLATION

 Introduction. Knowledge of the essential characteristics of the subject, its essence can be represented by ontologies and terminologies, ie two models of knowledge representation. The terminology has long been used to transmit and disseminate knowledge because it contains the most accurate and concentrated information in a particular field.

 Terminology alone cannot provide a representation of knowledge in a particular field, because it does not cover the entire body of knowledge, on the one hand, and does not allow to systematize information without the use of metatext tools. However, as a means of interface and access in knowledge representation systems, it can be very useful because it provides easy semantic access to individual fragments.

The technical perfection of the acts adopted by him depends on how competently the legislator uses in his activity the means of legislative technique and especially definitions. This is crucial for the prevention and combating of corruption, as European integration processes require Ukraine to review and improve the domestic mechanism for implementing such activities on the basis of international anti-corruption standards. And it depends on the correct semantic definition of the basic definitions how the reflected phenomenon realizes itself, its essence is demonstrated, there is a separation from other objects.

Accordingly, in order to determine the properties inherent in the phenomenon of corruption and the conceptual basis for preventing and combating this phenomenon, we consider it necessary to explore the terminology of legislation in this field.

  • Review of recent research

Numerous domestic and foreign scholars have turned their scientific views to the question of defining the terminological and substantive essence of such a phenomenon as corruption. Among them are such as O. Zadorozhniy, A. Ilenkov, V. Kostenko, N. Mikhalkin, L. Smirnova, O. Tkalya, V. Trepak, A. Khvorostyankina and others. However, their scientific research did not address the systematic analysis of the legislative definition of such phenomena as “corruption”, “prevention of corruption” and “anti-corruption”, but concerned general or related aspects.

  • Presentation of the main provisions

During the years of Ukraine’s independence, the legislative definition of “corruption” has been distorted and changed. Thus, in the Law of Ukraine “On Combating Corruption“ of October 5, 1995, Article 1 defines corruption as the activity of persons authorized to perform state functions, aimed at the illegal use of their powers to obtain material goods, services, benefits or other advantages.

Subsequently, on April 24, 1998, the Decree of the President of Ukraine №367/98 “On the Concept of Combating Corruption for 1998-2005“ was adopted, which provided that corruption is a set of different in nature and degree of public danger, but unique in nature acts of corruption , other offenses (criminal, administrative, civil, disciplinary), as well as violations of the ethics of conduct of officials related to the commission of these acts.

At the same time, Annex 2 “Definition of Terms and Concepts” of the Order of the Main Department of the Civil Service of Ukraine (№94 of November 30, 2001 “On Supplementing the Handbook of Typical Professional Characteristics of Civil Servants”) states that corruption is abuse of office, direct use of official position. a person of rights and powers for the purpose of personal enrichment; marketability of public and political figures, employees of administrative bodies.

Accordingly, for a long time the opinion of citizens and the population of Ukraine that corruption is inherent only in officials and that only officials commit acts of corruption has taken root. This legislative formulation of the term “corruption” has contributed to the spread and consolidation of this stereotype of thinking.

The situation with the adoption of the Law of Ukraine “On Principles of Prevention and Counteraction to Corruption” on June 11, 2009 501506-VI has somewhat improved. This document defines corruption as the use by a person of his or her official authority and related opportunities for the purpose of obtaining an improper benefit or accepting a promise / offer of such benefit to himself or others or, respectively, a promise / offer or providing an improper benefit to or on such a person. a request to other natural or legal persons in order to persuade that person to illegally use the official powers granted to him and the related opportunities.

In turn, in the new Law of Ukraine “On Principles of Prevention and Counteraction to Corruption“, which entered into force on January 1, 2011, the analyzed term is interpreted as the use of a person specified in part one of Article 4 of this Law. such opportunities for the purpose of obtaining an improper benefit or accepting a promise / offer of such benefit for oneself or other persons or, respectively, a promise / offer or providing an improper benefit to a person specified in part one of Article 4 of this Law, or at his request to other individuals or legal entities. to persuade this person to misuse his / her official powers and related opportunities.

That is, in these acts, corruption is recognized not only as a problem of officials, but also determined by corruption offenses and actions of citizens in providing or offering illegal benefits to officials.

Currently in force is the Law of Ukraine dated 14.10.2014 №1700-VII “On Prevention of Corruption“ in which the phenomenon of corruption is interpreted as the use of a person, his official powers or related opportunities in order to obtain illegal benefits or accept such benefits or acceptance promises / offers of such benefit to oneself or others or, accordingly, a promise / offer or unlawful benefit to a person or at his request to other natural or legal persons in order to persuade that person to misuse his official powers or related opportunities.

Thus, during the years of independence, several specialized acts were adopted in the field under study. Currently, the term “corruption” is used as:

1) illegal actions of the authorized subject in order to obtain illegal benefits for themselves or their loved ones by forcing other persons to commit any action;

2) independent misuse of one’s official position to obtain certain benefits both for oneself and for the benefit of interested persons;

3) actions aimed at persuading the authorized person to misuse his / her official capabilities.

For comparison, in the Model Law “On the Fundamentals of Anti-Corruption Policy Legislation” of November 15, 2003, corruption is bribery (receiving or giving a bribe), any illegal use of one’s public status combined with the receipt of benefits (property, services or benefits) and/or benefits, including non-material) both for themselves and for their loved ones contrary to the legitimate interests of society and the state, or illegal provision of such benefits to the said person.

Let us clarify that persons who have public status are persons who permanently, temporarily or by special authority perform official or service duties in public authorities and local governments, state and municipal institutions, as well as persons who perform managerial functions in state and municipal enterprises or in non-profit (including foreign and international) organizations that are not state bodies, local governments or their institutions.

In the “Practical measures to combat corruption“, this phenomenon is defined as “violations of ethical (moral), disciplinary, administrative, criminal nature, which manifested themselves in the illegal use of their official position by the subject of corruption.” It should be added that the Reference Document on the International Fight against Corruption interprets the concept of corruption as “abuse of state power for personal gain.”

In turn, the Civil Convention on the Suppression of Corruption contains its own purposeful definition of the term, which means direct or indirect demands, offers, giving or receiving bribes or any other improper benefit or possibility of obtaining them, which violate the proper performance of any obligation. the person receiving the bribe, the improper benefit or opportunity to have such benefit, or the conduct of such person.

Thus, in the global sense, corruption as a transnational socio-legal phenomenon is, firstly, a type of behavior of persons with a special status (in particular in the field of individual decisions that have legal consequences), in which the interests of such persons occupy a privileged position over public or state; secondly, it is a defamed ideology of society, which allows, contrary to the law, to commit, allow or encourage unethical and illegal behavior of authorized persons.

In a generalized sense, it is an all-encompassing phenomenon, which includes manifestations of any abuse of a special status on the one hand, and on the other – motivation and active action to implement them by other stakeholders. That is, it is a two-way relationship, a symbiosis of needs and benefits. The highest manifestation of corruption is bribery, which in any case should be criminally punishable, along with abuse of influence, money laundering from corruption-related crimes and financial fraud.

It should be noted that the diversity of definitions of corruption indicates the complexity and diversity of this phenomenon, according to the definition of this concept, are constantly evolving not only at the national level but also internationally.

Noting the following category, in the context of our study, it should be noted that the term “prevention”, in general, is used in legislation:

1) to reduce the number and harmfulness of a phenomenon (for example, for the environment);

2) as a system of measures aimed at eliminating the legal, social and other causes of a certain phenomenon, preventing them and the emergence of negative social consequences (eg, homelessness and homelessness);

3) as preparation and implementation of a set of legal, socio-economic, political, organizational and technical, sanitary and hygienic and other measures, assessment of risk levels, early response to the threat (eg, emergencies);

4) a system of measures carried out by executive bodies, local governments, enterprises, institutions and organizations, as well as citizens of Ukraine, foreigners and stateless persons who are in Ukraine legally, and aimed at raising public awareness of the forms, the causes and consequences of a particular negative phenomenon, the formation of intolerance towards it (for example, domestic violence; gender-based violence);

5) all requirements or measures to avoid or limit adverse events (eg hazards in the enterprise);

Specialized interpretation of the phenomenon of anti-corruption is provided in the Model Law “On the Fundamentals of Legislation on Anti-Corruption Policy“ of 15.11.2003, which states that it is the activities of anti-corruption policy aimed at identifying, studying, limiting or eliminating phenomena that cause corruption offenses or contribute to their spread.

The current Law of Ukraine of 14.10.2014 №1700-VII “On Prevention of Corruption“ does not have a similar or equivalent interpretation of the analyzed phenomenon, and therefore we consider it appropriate to supplement this definition in the following form:

“Prevention of corruption – the activities of public administration, as well as citizens of Ukraine, foreigners and stateless persons who are in Ukraine legally, aimed at identifying, studying, limiting or eliminating the phenomena that give rise to corruption offenses or contribute to their spread.”

Currently, the legislation establishes a number of provisions, which in content are restrictions and prohibitions of certain types of behavior of officials, and by their purpose are means of preventing corruption. It is necessary to know, understand and adhere to such provisions in your daily activities. In addition, the legislation sets out a number of requirements and procedures aimed at preventing corruption. All these tools constitute a set of anti-corruption mechanisms that act as “barriers” to the commission of corruption offenses.

 In turn, the term “counteraction” is used by the legislator in the following meanings:

1) a system of measures taken by executive authorities, local governments, enterprises, institutions and organizations, as well as citizens of Ukraine, foreigners and stateless persons who are in Ukraine legally, and aimed at ending the negative phenomenon, providing assistance and protection of the injured person, compensation for the damage caused to him, as well as the proper investigation of cases, and prosecution of offenders (eg, domestic violence, gender-based violence);

2) activities aimed at preventing (preventing) or impeding the implementation of illegal activities (for example, computer attacks);

3) a system of measures aimed at overcoming the negative phenomenon by preventing and combating it and providing assistance and protection to victims (eg trafficking in human beings).

However, the current Law of Ukraine of 14.10.2014 №1700-VII “On Prevention of Corruption“ also has no interpretation of the analyzed phenomenon, and therefore we consider it appropriate to supplement this definition as follows:

“Counteracting corruption – the activities of anti-corruption and law enforcement agencies aimed at identifying corruption offenses, their proper investigation, prosecution of offenders, as well as the protection of persons harmed by corruption.”

Finally, it should be noted that such a term as struggle is used by the legislator in the sense of activities to prevent, detect, stop, minimize the consequences, or as a system of measures carried out in the framework of counteraction and aimed at detecting crime, including unfinished, persons , victims of this, identification of the subjects of the crime and bringing them to justice.

In our opinion, this term in the analyzed area covers both the prevention and combating of corruption, as it involves activities aimed at eradicating it by all available means, in particular preventive measures – ie prevention of corruption; repressive measures – ie combating corruption; liquidation measures – ie elimination of the consequences of corruption as an integral part of counteraction.

Legislative emphasis on the prevention of corruption is due to the priority of preventive measures – effective action of statutory preventive anti-corruption mechanisms, which increases the level of legal awareness of citizens, reduces the risk of violation of their fundamental rights and freedoms in everyday life, and promotes intolerance of corruption. . Because the application of repressive anti-corruption legislation, aimed only at punishing public servants, without eliminating the factors that feed and generate corruption, does not lead to any tangible results in reducing its level.

  • Conclusions

All the above makes it possible to formulate a conclusion that the terminology of legislation in the field of preventing and combating corruption is imperfect and requires legislative revision. Legislation appeals to such terms as “fight”, “counteraction”, “prevention” of corruption, but there is no official definition. In this regard, we propose to enshrine in the current Law of Ukraine dated 14.10.2014 №1700-VII “On Prevention of Corruption“ the interpretation of these terms.

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