ANALYSIS OF THE SUBJECTIVE STRUCTURE OF OFFENSES THAT INFRINGE ON THE STOCK MARKET PROVIDED FOR IN ARTICLES 223-2 AND 232-2 OF THE CRIMINAL CODE OF UKRAINE
Journal Title: «Приватне та публічне право» - Year 2018, Vol 1, Issue
Abstract
The article is devoted to the investigation of the subjects of the syllables of crimes provided for in Articles 223-2 «Violations of the procedure for keeping the register of holders of registered securities» and 232-2 «Concealing information about the activities of the issuer» of the Criminal Code of Ukraine. It has been established that by virtue of the direct indication of the legislator, the subjects of these components of crimes are the official person of the issuer. In addition, it was found that the official of a professional participant in the stock market acts as the subject of a crime envisaged in Art. 223-2 CC. As a result of the analysis of changes that were subject to regulatory legislation on depositary activities, it is proposed to exclude from the disposition of Art. 223-2 of the Criminal Code indicating such a person as a crime, as an official of the issuer. The need for such amendments is justified by the fact that today the officials of the issuer are deprived of the right to maintain a register of holders of registered securities. According to the provisions of the legislation on depositary activity, such a right is granted to the Central Securities Depository, and in cases provided for by law, to the National Bank of Ukraine. It has been established that to officials who may be the subjects of a crime stipulated in art. 223-2 of the Criminal Code, should include the heads of securities traders and their deputies, heads of structural units of securities dealers who directly deal with securities, other senior officials of professional participants of the depository system of Ukraine or the National Bank of Ukraine, as well as certified securities dealer trader, its separated and / or specialized divisions that are directly involved in depositary activities. The analysis of the provisions of the legislation on the stock market made it possible to conclude that the managers, their deputies, heads of the structural divisions of securities dealers who directly deal with securities and other senior officials of professional participants of the depository system of Ukraine or the National Bank of Ukraine are officials in understanding of this concept, enshrined in Part 3 of Art. 18 of the Criminal Code, since they occupy positions related to the implementation of both organizational and administrative and administrative and economic functions. At the same time, certified specialists of a securities trader, its separate and / or specialized structural units directly involved in depositary activity, are officials on the basis of occupation of positions related to the performance of administrative and economic functions. In turn, the subject of the crime, stipulated in Art. 232-2 of the Criminal Code, is an official of the issuer of securities, in the scope of which the duty is to provide investors on their written request information on the activities of the issuer. In cases where deputies of Ukraine, members of the Cabinet of Ministers of Ukraine, heads of central and local executive authorities, local authorities, servicemen, notaries, officials of the prosecutor’s office, the court, security services, the National Police, civil servants, perform functions of corporate governance the rights of the state and represent the interests of the state or territorial community in the supervisory board or audit committee of the company, they also act as officials of the joint stock company and may be held criminally liable under Article 232-2 of the Criminal Code of Ukraine.
Authors and Affiliations
Р. А. Волинець
Keywords
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