GIFTS FOR PUBLIC SERVANTS IN UKRAINE: PROHIBITION, RESTRICTION OR PERMISSION AS THE OPTIMAL MODEL OF LEGAL REGULATION
Journal Title: Юридичний науковий електронний журнал - Year 2018, Vol 1, Issue
Abstract
The article analyzes the provisions of the current domestic anti-corruption legislation in determining the basis for receiving gifts by public servants. It is determined that the legislator has chosen a mixed model of legal regulation of the relevant relationship, which combines the prohibition, restriction and permission to receive gifts by public servants. The prohibition extends to the receipt of gifts that are directly related to the official activities of the person or come from subordinates. It is specified that the ban is sufficiently widespread in foreign legislation and eliminates any prerequisites for the exercise of subjective discretion in the process of interpreting or applying the provisions of the law regarding gifts for public servants. The article proves the appropriateness of borrowing the experience of foreign countries, approved by time and practice, which fixed a ban on receiving any gifts by public servants. It is the ban that implies clear rules regarding the receipt of gifts by public servants, the violation of which provides for bringing those responsible to justice.Restrictions are also part of the domestic legal model for the regulation of relations related to gifts for public servants. It is noted that the restrictions provide for the possibility of performing certain actions, but with observance of the established limits. Attention is drawn to the fact that the effectiveness of the application of legal provisions will depend on how the limits of permitted behavior are determined in the legislation. The article analyzes the provisions of the current domestic anti-corruption legislation in terms of determining the limits of the permitted behavior regarding the receipt of gifts by public officials, notes the existence of evaluation concepts, the simultaneous use of several criteria for resolving issues regarding compliance or non-compliance with established limits. This approach of the legislator to determine the limits of obtaining “authorized gifts” causes problems in law enforcement. The experience of foreign countries regarding the definition of restrictions for the permitted behavior of public employees regarding the receipt of gifts is analyzed, and proposals on the borrowing of certain positivedevelopments are formulated.Attention is drawn to permits to receive gifts by public servants only in cases when they are not connected with official activities, their common nature in the form of bonuses, prizes, discounts, bonuses, etc., as well as the possibility of receiving them from close people. At the same time, problems are raised related to the practice of applying for “gifts through close people”, with inconsistencies in the provisions of the current legislation regarding the declaration of gifts from close people and gifts that are received by the closest persons. The need for resolving the relevant issues is justified in order to increase the effectiveness of preventing corruption-related offenses, with the gradualreplacement of restrictions on the prohibition on receiving gifts by public officials.
Authors and Affiliations
Т. О. Коломоєць, Р. О. Кукурудз
Keywords
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