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of December 26, 2003 No. 15

About court practice on cases on exceeding of the power or office powers

According to Art. 19 of the Constitution of Ukraine public authorities and local government bodies, their officials shall act only on the basis of the, within powers and method which are provided by the Constitution and the laws of Ukraine.

Exceeding of the power or office powers is dangerous crime which is committed in the field of office activities and encroaches on the rights and interests of certain citizens, interests of legal entities, the state and public concerns protected by the law.

Courts generally solve cases on such crimes with observance of requirements of the law. However in their activities there are also shortcomings connected with the wrong understanding of the objective party and the qualifying signs of this crime, its dissociation from adjacent crimes. Mistakes in case of assignment of punishment are made.

For the purpose of ensuring identical application by courts of the legislation for the specified category Plenum Supreme to Court of Ukraine DECIDES:

1. Draw the attention of courts that due implementation of justice on cases on exceeding of the power or office powers shall promote as much as possible protection of the rights protected by the law and interests of certain citizens, interests of legal entities, the state and public concerns, to strengthening of legality and law and order.

Courts shall demand from bodies of pretrial investigation of familiarizing with materials of criminal cases about exceeding of the power or office powers of copies of regulatory legal acts, provisions, instructions, other documents which disclose nature of powers of the official.

3. Courts need to mean that the official can only be the contractor (collaborator) of crime, responsibility for which is provided by Art. 365 of the Criminal code of Ukraine (further - KK). In case of the solution of question of whether person is office, it is necessary to proceed from provisions which contain in notes 1 and 2 to Art. 364 of UK.

Responsibility according to Art. 365 of KK comes only provided that actions of the official were caused by his official position and are connected with its imperious or office powers. If such connection is not established, actions of the guilty person in the presence to that the bases can be qualified by articles of the called Code which provide responsibility for crimes against the personality, property, public order and so forth.

Organizers, instigators, helpers of exceeding of the power or office powers can be recognized both office, and not officials. Actions of such accomplices should be qualified by the corresponding parts of articles 27 and 365 UK.

4. According to p.1 Art. 365 of UK exceeding of the power or office powers deliberate making by the official of actions which obviously overstep the bounds of the rights or powers granted to it is recognized if they do essential harm to the rights and interests of certain citizens, either the state or public concerns, or interests of legal entities protected by the law.

In case of the solution of question of whether exit for borders of the granted rights or powers is explicit, courts shall consider as far as it was obvious to the official and whether it realized illegality of the behavior. Motives and the purpose of making of such actions can be different and, as a rule, do not influence qualification of crime.

The relation of the official to effects of the actions made by it perhaps both deliberate, and careless.

5. Courts need to otmezhevyvat exceeding of the power or office powers from authority misuse or official position. In the latter case the official is illegal, contrary to interests of service uses the rights and powers (Art. 364 of UK) granted to it by the law.

It is necessary to understand as exceeding of the power or office powers:

a) making of actions which are competence of the higher official of this department or the official of other department;

b) making of actions which accomplishment is allowed only in particular cases, or with special permission, or with observance of special procedure, - in the absence of these conditions;

c) making solely actions which could be made only jointly;

d) making of actions which nobody has the right to carry out or allow.

6. Obligatory sign of the objective party of the actus reus provided by Art. 365 of UK is causing essential harm to the rights and interests of certain citizens, either the state or public concerns, or interests of legal entities protected by the law.

According to item 3 of the note to Art. 364 of UK harm if it consists in causing loss of property, is recognized essential provided that it in 100 and more times exceeds tax-free minimum of the income of citizens.

If the damage consists in causing socially dangerous effects of intangible nature, the issue of its materiality is resolved taking into account the specific facts of the case. In particular, essential harm violations protected by the Constitution of Ukraine or other laws of rights and freedoms of man and citizen (right to liberty and security of person and inviolability of home, the voting, labor, housing laws and so forth), undermining authority and prestige of public authorities or local government bodies, violations of public safety and public order, creation of situation and conditions which complicate accomplishment by the company, organization, organization of the functions, concealment of crimes can be recognized.

In case of the solution of question of whether the caused damage is essential, it is also necessary to consider the number of injured citizens, the extent of moral harm or lost profit and so forth.

In case of causing along with loss of property and harm of intangible nature general harm from crime can be recognized essential even if the specified losses do not exceed 100 tax-free minima of the income of citizens.

7. Responsibility for qualified types of exceeding of the power or office powers comes only in the presence of all essential elements of offense provided p.1 by Art. 365 of UK, and at least one qualifying sign provided by the p. 2 or the p. 3 of the specified Article.


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