The USA Journals Volume 03 Issue 05-2021
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The American Journal of Political Science Law and Criminology
(ISSN
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2693-0803)
Published:
May 31, 2021 |
Pages:
59-67
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue05-10
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‘
ABSTRACT
This article provides a legal analysis of the corpus delicti of transactions, contrary to the interests of
the Republic of Uzbekistan, and examines in detail the objective signs. In particular, such concepts as
object, subject, interests, types of criminal object, damage and its types are analyzed. The opinions
and approaches of foreign and domestic scientists on this matter were also taken into account. In
addition, it is noted that the public danger of making transactions contrary to the interests of the
Republic of Uzbekistan lies in the fact that when committing a crime, not only the rights of individuals
are violated, but also damage to society as a whole. In addition, during the transitional period of the
life of society and the state, the number of crimes of this kind grows rapidly and can cause significant
damage to the economic foundations of the state. The final section contains suggestions and
recommendations for eliminating negative factors.
KEYWORDS
Crime, socially dangerous, object of crime, object of crime, transaction, interest, damage
INTRODUCTION
In recent years, there has been a significant
increase in the dynamics of crimes against the
foundations of the economy. There is not a
single state or society that does not suffer from
a crime against the foundations of the
economy. Therefore, the issues of this struggle
Objective Signs Of The Conclusion Of Transactions Contrary
To The Interests Of The Republic Of Uzbekistan
Shodmon Alisherovich Ashurov
Master Student Of Tashkent, State Law University, Uzbekistan
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
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are regulated on the basis of international
documents and national legislation. Although
the act is not the only criterion for inclusion in
the list of crimes against the fundamentals of
the economy, it has some common features.
For example, causing harm, contractual
discipline, guarantees of property rights, the
procedure for the formation of economic
resources established in the republic, social
relations that ensure the activities of
enterprises or other structures carrying out
entrepreneurial activities, established by law,
their own charter, etc.
The Constitution and legislative acts of the
Republic of Uzbekistan establish that the basis
of the economy of Uzbekistan is property in
various forms, the state guarantees freedom of
economic activity, entrepreneurship and labor,
equality and equal legal protection of all forms
of ownership, taking into account the
supremacy of consumer rights.
THE MAIN RESULTS AND FINDINGS
The Criminal Code, adopted on September 22,
1994,
for
the
first
time
established
responsibility for concluding transactions
contrary to the interests of the Republic of
Uzbekistan, this provision consisted of two
parts. The crime of concluding transactions
contrary to the interests of the Republic of
Uzbekistan is contained in Chapter 12, Article
175 of the Criminal Code “Crimes against the
foundations of the economy”.
Part one of this norm establishes the
responsibility of an official of a state div,
enterprise, institution, organization, public
association, regardless of the form of
ownership, for concluding a deliberately
unfavorable transaction that entailed causing
significant damage to the interests of the
republic. The second part of this provision
establishes responsibility for the commission
of these actions again, by a group of persons
by prior conspiracy and causing significant
damage.
In our opinion, the clarification of the object of
the crime of concluding transactions contrary
to the interests of the Republic of Uzbekistan
is important not only in the systematization of
the criminal law, but also in determining the
nature and degree of social danger of the
crime, the correct qualification of the act.
The general object of this crime is social
relations protected by criminal law.
The conclusion of transactions contrary to the
interests of the Republic of Uzbekistan is a
crime that is objectively unprofitable, including
the conclusion of transactions that entailed the
import into the territory of the Republic of
Uzbekistan of previously used, physically worn
out, obsolete or inadequate equipment or
technologies, as well as their installation and
introduction, which caused significant damage
to the interests of the Republic of Uzbekistan.,
the same is expressed in the issuance by an
official of an authorized state div or other
organization of an expert opinion or other
document that served as the reason for the
conclusion of such a transaction.
The legal analysis of any crime means the
analysis of the corpus delicti, that is, the
objective and subjective signs of a crime.
Objective signs of a crime is a concept that
covers the object and objective side of the
crime.
The object of the crime is social relations
protected by the criminal law; as a result of a
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criminal act, these social relations are infringed
upon and harm is caused [1].
The object of the crime is not any public
relation, but only the public relation protected
by the criminal law. In this regard, M.Kh.
Rustambaev notes that the object of the crime
is public relations, which in the aggregate are a
purely social category, the highest priority and
socially significant, protected by the criminal
law, as a result of the commission of a crime
they are harmed or threatened with harm [2] ...
As you know, when defining the concept of an
object of a crime, one should proceed from the
principle “the question of the nature and
direction of harm [3] caused or threatening to
be inflicted by a criminal offense should be
taken as a basis,” scientists consider the object
of a crime: social relations [4], personality 5],
human rights [6], a certain social (legal)
interest [7] or social security [8]. Based on
these concepts, that the object of a crime is a
public relation, that a crime directly damages
social relations between members of society,
the concept “Social attitude - object of crime”
is perceived by many researchers as a whole.
Another scientist believes that the object of
the crime as an element of the corpus delicti
has a slightly different content than, for
example, the object of criminal law protection.
In this case, it includes legal signs of an
encroachment in its material or relative terms,
signs of the consequences of an encroachment
on an object [9].
If the object of a criminal offense is defined as
an element of the corpus delicti, then the
definition that some authors cite as the most
general (abstract) definition, in our opinion, is
appropriate. The object of a crime is an object
that the crime encroaches on, causes harm or
creates a threat of harm (may cause harm).
The crime of concluding transactions contrary
to the interests of the Republic of Uzbekistan
consists of four parts, the direct object of the
crime is public relations that provide the
foundations of the economy of the Republic of
Uzbekistan.
As you know, the object of the crime and the
object of the crime are not the same thing. It
should be borne in mind that the subject is not
always a permanent sign of a crime. The
Criminal Code, again, provides for such
compositions, the subject of which is difficult
to indicate, since the subject is understood as
something material (visible to the naked eye,
measurable,
possessing
qualitative
and
distinctive features).
According to E.Kh. Norbutaev's concept,
“interest” as an object of crime, the category
of “interests” is at a higher level in relation to
social relations arising between the subjects,
but is not always regulated by the norms of
law.
“Interest” as an integral element of the
subjects of legal relations is wealth and
interest, expressed in the law of the state and
the individual [10]. In some foreign criminal law
systems, the term “object of crime” is not used
at all, instead such concepts as “legal interest”,
“protected legal interest” and others are used
[11].
Thus, the category of interest “determines the
content of the object of the crime and“ ... it is
appropriate for any aspect of social life and
human activity. ”We believe that this concept
has a future, it deserves to be considered as an
object of research and development. But one
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cannot but agree with the author's opinion
that “object of a crime” is a term that does not
correspond to criminal law. This term fully and
comprehensively characterizes a crime, since a
crime cannot do without it.
In order to recognize the act of a person as a
crime, it is necessary that its composition
exists. The corpus delicti consists of four
elements, which include: the object of the
crime, the objective side of the crime. the
subject of the crime, the subjective side of the
crime.
In the theory of criminal law, the objective side
of a crime is defined as follows: the objective
side of a crime is understood as signs that
characterize the external circumstances of a
socially dangerous act or inaction committed
against an object protected by criminal law
[12].
The objective side of the crime is a necessary
element of the corpus delicti, which is of great
importance as a basis for criminal liability. The
disposition of the articles of the Special Part of
the Criminal Code indicates the objective signs
of each crime, that is, crimes differ from each
other mainly in the mode of action or inaction,
the criminal outcome, the circumstances of the
crime and other aspects. Consequently, the
objective side of the crime is essential within
the scope of the corpus delicti and helps in
determining which crime was committed.
It should be noted that some scholars believe
[13] that sections and chapters of the criminal
law should be drawn up in accordance with the
special and generic objects of the crime. Some
say [14] that sections of the Criminal Code
should be drawn up on a special object, a
chapter on a generic object, and an article on a
direct object. In this regard, the opinion of A.S.
Yakubov is of great importance that “to build a
system of the Special Part of the Criminal Code,
it is necessary to have a special object basis”
[15].
According to NI Vetrov [16], the norms of the
Special Part of the Criminal Code are
systematized based on the special object of the
act. Each section or even chapter has its own
special object, he says. In our opinion, the
legislator attributed crimes similar in a special
object to the sections of the special part of the
Criminal Code, and crimes similar in a generic
object to chapters.
Unlike B.S. Nikiforov, who criticized the
existing classification of objects mainly due to
the inconsistency
of terminology
and
definitions of concepts, M.I. Fedorov proposed
to abandon the concept of a common object of
a crime. The scientist believed that there is no
common object of crime in nature. Thus, M.I.
Fedorov believes that only the concept of a
common object of a crime can exist. However,
rejecting this point of view, it should be
specially noted that any crime primarily
damages common objects protected by
criminal law, and in this regard, these relations
are recognized as common objects of crime.
It is noted that the social danger of concluding
transactions contrary to the interests of the
Republic of Uzbekistan lies in the fact that
when committing a crime, not only the rights
of individuals are violated, but also damage to
society as a whole. In addition, during the
transition period of the life of society and the
state, the number of crimes of this kind grows
rapidly and can cause significant damage to the
economic foundations of the state.
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Here is an analysis of the object of the crime
provided for in Article 175 of the Criminal Code,
in accordance with the theoretical provisions
set forth above.
The object of the crime of concluding
transactions contrary to the interests of the
Republic of Uzbekistan is the foundations of
the economy of the Republic of Uzbekistan,
the economic system of the Republic of
Uzbekistan, when committing a crime under
Article 175 of the Criminal Code, the interests of
the Republic of Uzbekistan are damaged.
The interests of the Republic of Uzbekistan are
recognized as the creation of an effective
market economy, the protection of property
and material relations, national values, and the
achievement of commodity integrity. These
interests are reflected and enshrined in
legislation,
which
establishes
special
requirements
for
the
conclusion
of
transactions, including this equally applies to
the conduct of trade operations and to foreign
economic transactions concluded.
The crime of concluding transactions contrary
to the interests of the Republic of Uzbekistan
from the objective side is expressed in the
conclusion of transactions that caused
significant damage to the interests of the
republic, were unprofitable.
In accordance with Article 101 of the Civil Code
of the Republic of Uzbekistan, actions aimed at
establishing, changing or terminating the civil
rights and obligations of citizens and legal
entities are a transaction. There are unilateral,
bilateral or multilateral types of transactions.
The offense provided for in article
175 of the Criminal Code, is made by concluding
a
bilateral
or
multilateral
transaction-
agreement. Also, this crime can be committed
by concluding unilateral transactions.
Also, transactions can be conditional (ie,
transactions with deferral and cancellation),
compensated and gratuitous, real and
consensual, casual (controversial) and abstract
[17]. The form of the transaction made does
not affect the qualification of the act, but
should be taken into account by the court
when imposing a punishment on the guilty
person.
In accordance with Articles 105-112 of the Civil
Code of the Republic of Uzbekistan, the
conclusion of such a transaction is the
expression of the will of the parties under all
the terms of the transaction in the manner
prescribed by law, and if these two conditions
are met, the transaction is considered
concluded between the parties:
The will must be expressed in accordance
with all the terms of the transaction;
The form of facial expression must meet all
the requirements for transactions.
The crime of concluding transactions contrary
to the interests of the Republic of Uzbekistan
is considered completed from the moment of
causing damage to the interests of the republic
on a large scale. If the expression of will is
expressed in a different form than prescribed
by law, and the requirement to register a
transaction (for example, real estate purchase
and sale agreements) is not met, it cannot be
recognized as concluded, since it is not
considered valid, that is, it does not generate,
does not change and does not entail
termination of civil rights and obligations. In
this case, the actions of the perpetrator are
qualified as an attempt to commit a crime
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under Part 2 of Article 25 of the Criminal Code
and Part 1 of Article 175 of the Criminal Code (in
the absence of aggravating circumstances).
A significant sign of the objective side of this
crime is the infliction of significant damage to
the interests of the republic as a result of the
conclusion of a transaction that is contrary to
the interests of the Republic of Uzbekistan. A
large amount represents an amount from
three hundred to five hundred times the
minimum wage.
The amount of damage in each case is
determined by the div of inquiry or the court
and is determined [18] according to the
content of the article:
Actual damage, that is, costs that the state
will incur or incur in the future in order to
restore its violated interests;
Lost profit [19], that is, profit not received
from civil turnover [20].
When determining the amount of loss [21], the
loss of profit due to the conclusion of a
transaction that is contrary to the interests of
the Republic of Uzbekistan is not taken into
account.
Clause 11 of the Resolution of the Plenum of the
Supreme Court of the Republic of Uzbekistan
dated April 17, 1998 No. 11 "On some issues that
have arisen in judicial practice in cases of
crimes in the economic sphere" states that the
conclusion of a transaction contrary to the
interests of the Republic of Uzbekistan should
be understood as the actions of an official who
knowingly knew that the deal he was making
was unfavorable to the interests of the
Republic of Uzbekistan (for example, the
prices for the supply of products were clearly
understated, or the prices for the receipt of
products, their transportation, etc. were
clearly overestimated). At the same time, large
or especially large damage caused to the
interests of the republic should always be
established as the consequences of the crime
provided for in Article 175 of the Criminal Code.
The amount of this damage, whether large or
particularly large, must be argued by the
investigating authority [21] and the court [22]
in each specific case.
The number of transactions concluded
contrary to the interests of the Republic of
Uzbekistan may, for example, also include the
facts [23] of the sale of state property to other
owners at significantly reduced prices. The
conclusion of the court that the transaction
contradicted [24] the interests of the state can
be made taking into account the expert
opinion.
When
investigating
[25]
and
judicial
consideration of cases of this category, it is
imperative to find out the reasons and
conditions [26] contributing to the commission
of these crimes. If, however, selfish or other
base motives of the perpetrator are
established
when
concluding
these
transactions, such actions should also be
qualified under the articles of the Criminal
Code, which provide for liability for relevant
crimes committed with the use of power or
official position.
In this regard, in our opinion, it seems
necessary to expand the incentive norms in the
system of criminal punishments today on the
following grounds:
Firstly, the widespread use of incentive norms
in the criminal justice system is an important
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criterion for ensuring human rights in criminal
law;
Secondly, the expansion of incentive norms is,
in fact, an important component of the
liberalization of criminal law;
Third, the widespread use of incentive norms is
also acceptable to the state for several
reasons. This optimality is expressed in
reducing the costs of the state budget in
economic terms, and in social terms, in
preventing the negative impact of the crime
situation in prisons on convicts, etc.
Fourthly, the widespread introduction of
incentive norms in criminal law is consistent
with generally recognized norms and principles
of international law, which, in turn, serves to
ensure the consistency of national criminal law
policy with international legal policy.
Based on the foregoing, in accordance with
part 4 of Article 175 of the Criminal Code, a
person is released from punishment in the
event of compensation for material damage in
three times.
CONCLUSION
In conclusion, it should be noted that the
reforms carried out in our country in the field
of liberalizing criminal punishment for crimes
against the foundations of the economy and
expanding the scope of application of
incentive norms:
Firstly, the widespread use of punishments
alternative to imprisonment in the system of
criminal punishment requires improvement;
Secondly, the expansion of alternative types of
punishment,
which
are
an
important
component of the liberalization of criminal
legislation;
Third, the wider use of those types of
punishments when imposing punishment,
which make it possible to morally correct a
person without isolating him from society;
Fourthly, it seems appropriate to bring the
widespread introduction of alternative types
of punishment into national legislation in line
with generally recognized norms and principles
of international law and to continue work in
other humane and fair directions.
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