GENERALIZATION OF THE SUPREME COURT OF UKRAINE

of October 28, 2008

Practice of consideration by courts of criminal cases about nonpayment of the salary, grants, pensions or other payments established by the law (1)

Generalization is prepared by the judge of the Supreme Court of Ukraine O. F. Selivon and the main consultant of management of generalization of court practice O. S. Ishchenko.

The right of each citizen to timely receipt of remuneration for work and social payments is enshrined in Articles 43, 46 Constitutions of Ukraine. Realization of the specified constitutional rights of citizens is settled by the Law of March 24, 1995 N 108/95-BP "About compensation", the Labor code of Ukraine (further - the Labour Code), others legislative and regulations. In particular, by Art. 1 of the called Law it is determined that the salary is the remuneration calculated, as a rule, in terms of money which according to the employment contract the owner or the body authorized by it pays the worker for the work performed by it; (of October 21, 2004 N 2103-IV) it is provided in editions of the Law by the p. 3 of Art. 15 that compensation of employees of the company is performed in first-priority procedure. The company makes all other payments after accomplishment of obligations concerning compensation (in the previous edition compensation was performed in first-priority procedure after payment of obligatory payments); in the p. 5 of Art. 24 (in the same edition) it is specified that timeliness and amounts of salary payment to workers cannot be put into dependence on implementation of other payments and their priority. The Labour Code it is provided in Art. 115 that the salary is paid workers regularly in the working days in the terms established by the collective agreement, but at least two times a month through period which does not exceed 16 calendar days. According to Art. 116 of this Code in case of dismissal of the worker payment of all amounts belonging to it is performed in day of dismissal.

Criminal liability for nonpayment of the salary is established by Art. 175 of the Criminal code of Ukraine (further - UK) according to which for deliberate groundless nonpayment of the salary, grant, pension or other social payment to citizens it is more, than in one month the director, organizations or the organizations irrespective of pattern of ownership can be brought to such responsibility.

 

Statistical data

According to the state statistics, in 2005 courts of Ukraine were condemned according to Art. 175 of UK by 284 persons that is 6,3% less, than in 2004 (303 persons). Most of all under this Article it is condemned persons in areas: Lviv - 45, Donetsk - 26, Dnipropetrovsk - 23, Ternopil 19, Kharkiv - 16, Zaporizhia - 15.

According to operational statistical data of Appeal Courts, in 2005 for this type of crimes courts appointed such types of punishment as penalty, deprivation of the right to hold certain positions or to be engaged in certain activities, corrective works, restrictions of freedom, imprisonment (using Art. 75 of UK). In particular, imprisonment for certain term was designated by 16,8 of % of the number of persons condemned for this type of crime, restriction of freedom - % 5,6, corrective works - % 11,9, deprivation of the right to hold certain positions - % 12,5, fined - 53,1 of % of persons. Deprivation of the right to hold certain positions or to be engaged in certain activities as additional punishment is applied to 12,2 of % of convicts. 645 persons were exempted from criminal liability.

Everything put, except for one, concerned nonpayment of the salary. The exception constitutes case on G.'s nonpayment of the help with child care in the amount of 1 thousand 44 UAH by the chairman of Ltd company from Vinnytsia region of P. (p.1 Art. 175 of UK). Therefore in this generalization the attention is focused on cases on groundless nonpayment of the salary.

 

Quality of pretrial investigation

According to Art. 112 of the Code of penal procedure of Ukraine (further - the Code of Criminal Procedure) in cases on crimes, responsibility for which is provided by Art. 175 of UK, the pretrial investigation is performed by investigators of prosecutor's office.

Generally quality of pretrial investigation for the called category low. Typical shortcomings are abnormality and incompleteness of such investigation. So, in practice of bodies of pretrial investigation of the Sumy, Vinnytsia, Volynsk, Dnipropetrovsk regions and Sevastopol cases of initiation of proceedings "upon nonpayment of the salary", but not rather particular person are widespread that is violation of requirements of the p. 2 of Art. 98 of the Code of Criminal Procedure, in view of the fact that the subject of the specified crime special, i.e. it can be only director, organizations, the organizations.

Proceedings of the specified category on materials of the checks performed by territorial State Labour Inspection, control and auditing managements, and also bodies of prosecutor's office concerning compliance with law about work were initiated. At the same time quite often prosecutors and investigators showed haste, bringing criminal cases only in the presence of the fact of debt on salary payment whether did not find out, in particular, the company, organization, the organization of means for its payment had. Clarification of this circumstance is important for establishment in actions of the official of actus reus as its subjective party is characterized by direct intention.

In the majority of the analyzed cases the objective and subjective parties of this actus reus in accusation were not displayed absolutely or displayed not fully, during pretrial investigation properly were not researched, sometimes in connection with their absence.

In defiance of requirements of Art. 132 of the Code of Criminal Procedure inconcrete accusations were shown to the faces for the called category investigated by bodies of pretrial investigation of all areas and Kiev.

For example, on case it is relative To. the investigator of prosecutor's office of the Obolon district of Kiev in accusation according to the p. 2 of Art. 175 of UK in detail stated circumstances of use of enterprise assets, at the same time concerning nonpayment of the salary to workers was limited to general formulations. To what workers, in what amounts and for what period the salary was not paid, it is not specified.

The most characteristic circumstances under which nonpayment to workers of earnings took place were:

- financial hardship of agricultural enterprises and companies of wholesale and retail trade;

- availability of considerable wages payable which arose because of the previous head;

- need to pay taxes, charges and other obligatory payments, to repay bank loans;

- the direction of funds for the current urgent demands of the companies for ensuring productive and economic activity or the prevention of bankruptcy (purchase of fuels and lubricants, spare parts, accessories to the equipment, and also raw materials, sowing material, fertilizers and so forth).

Investigators for the specified category not always establish the reasons (objective and subjective) nonpayments during certain time to workers of the salary, make inaccuracies and mistakes in determination of the size of debt, terms of its education. Draws attention that in the majority of cases bodies of pretrial investigation do not research question concerning groundlessness and premeditation of nonpayment of the salary and do not provide proofs in confirmation of these circumstances. Therefore notes and wishes of Appeal Courts about need of carrying out for each such case of forensic accounting by means of which, having studied and having analyzed the relevant documents are correct, it is possible to give the answer to the questions posed unambiguously that would facilitate to bodies of pretrial investigation and courts adoption of the correct decision. It is also necessary to develop and implement in practice of bodies of pretrial investigation technique of investigation of criminal cases of the specified category, where to provide circle of questions which should be found out in case of investigation, and sources of proofs by means of which the facts of the case shall be established.

Object of crime which structure is provided by Art. 175 of UK are labor rights of citizens (in case of nonpayment of the salary) and other their rights (nonpayment of pension, grant and so forth). Therefore, on contents of this law and according to requirements of Art. 49 of the Code of Criminal Procedure the victims for the specified category particular persons to whom such crime does harm shall be recognized. However the typical phenomenon in case of investigation of these criminal cases is that employees of the companies, organizations, the organizations to whom did not pay the salary are not recognized as the victims. In one cases of such persons interrogated as witnesses, in others - their interests were represented by representatives of trade-union bodies.

Such situation developed because heads of the companies are brought to trial for nonpayment of the salary to all labor collective or its considerable part, and recognition by the victims of large number of persons complicates legal investigation, and investigators consciously try to avoid it, without recognizing as the victims of persons to whom the salary is not paid though in such cases their rights are violated.

During pretrial investigation and consideration of the case in court participation of representatives of the victims whose powers are supported by the relevant documents, for example the solution of works meetings to which members the salary is not paid, on provision to certain person (persons) of the right to represent their interests as the victims on specific criminal to case is admissible.

 

Judicial review of cases

Courts during hearing of cases of the called category also made mistakes and shortcomings. In the majority of cases the tendency to automatic transferring of the formulation of the charge brought to person by bodies of pretrial investigation in motivation part of sentence or the resolution on solution of the case, and with the same mistakes and inaccuracies which allowed bodies of pretrial investigation is traced. Also the formality of carrying out preliminary consideration of cases by courts, passivity in research of proofs and so forth are traced. So, in one of the studied cases the court did not recognize employees of the companies injured if they were not recognized as those during pretrial investigation. There were no cases of return of cases from stage of preliminary consideration to the prosecutor on additional investigation whereas Appeal Courts by preparation of generalization of court practice of local courts studied cases of this category and noted set of mistakes, facts of the wrong qualification and other violations allowed by bodies of pretrial investigation.

Generalization certified that in the majority of sentences the motivation of intention of the guilty person is not specified crime execution which structure is provided by Art. 175 of UK, and proofs are simply listed without their analysis and assessment. At the same time quite often defendants referred to objective impossibility of timely salary payment, but neither the investigator, nor court checked their indication and legal treatment it gave.

So, the Lyubeshivsky district court of the Volynsk region sentence of March 12, 2004 condemned the chairman of the board of JSC Ya. according to the p. 2 of Art. 175 and p.1 Art. 364 of UK for three years six months of restriction of freedom using Art. 75 of this Code. The formulation of motivation part of sentence inconcrete is also completely identical to accusation. In case there are no proofs that the convict had opportunity completely to pay wages payable. Court, having used that I. admitted the guilt, limited carrying out court investigation to interrogation of the person accused and decided conviction, despite of incompleteness of pretrial investigation.

Generalization showed that courts considered large number of cases of this category in the simplified procedure according to the p. 3 of Art. 299 of the Code of Criminal Procedure, i.e. without research of all proofs which are in case. Generally use of the specified provision of the law by hearing of cases of the called category is rather widespread in courts of all areas, and also Kiev. At the same time courts often, having considered cases according to the procedure, the Code of Criminal Procedure provided by the p. 3 of Art. 299, in defiance of requirements of Art. 334 of this Code in motivation part of sentences referred to proofs which during court investigation were not researched (cases of Svalyavsky district court of the Transcarpathian region relatively B. and M. is relative, case of Volovetsky district court of the same area is relative G.).

Some courts, having faced incompleteness of pretrial investigation, absence in cases of complete packet of necessary documents, based on Art. 315-1 of the Code of Criminal Procedure sent to prosecutors of the order about carrying out necessary investigative actions, in particular documenting audit of activities of the companies and so forth. But at the same time it must be kept in mind that on contents of this Article court orders go for the purpose of check and refining of the actual data obtained during court investigation, but not for clarification of some new data.

 

Questions of qualification of actions of convicts

The analysis of the cases sent for generalization covered problem of correctness of qualification of actions of convicts. According to disposition of Art. 175 of UK criminal liability comes in case of groundlessness of nonpayment of the salary that is obligatory element of this actus reus. But the concept "groundlessness" is estimative, and its application in practice of hearing of cases of the called category is ambiguous.

Groundless it is necessary to consider such nonpayment of the salary which is made in the presence of objective opportunity to perform payment, and for clarification of such opportunity it is necessary to check financial and economic condition of the company, organization or organization where nonpayment, and also the purpose of use of means which arrived into their accounts is revealed. At the same time it is possible to find also conflict of interest of the company and its workers when in the presence of debt on salary payment of means which arrived into the account of the company were spent for support of its activities. In such cases in case of the solution of question of involvement of the director to criminal liability according to Art. 175 of UK it is necessary to proceed from provisions of Art. 39 of this Code which contains concept of emergency.

According to the p. 2 of Art. 175 of UK it is necessary to qualify the actions of the head directed to deliberate groundless nonpayment of the salary if they were made owing to inappropriate use of the means intended for salary payment.

Generalization certified that in practice there are certain difficulties in case of determination of this qualifying sign of actions of perpetrators, and in particular in case of clarification of question what means were intended for salary payment.

Investigators of prosecutor's office of Odessa in case of investigation of cases of the called category appointed forensic accountings for confirmation of the facts of inappropriate use of means which could be used on debt repayment on salary payment, however qualified actions of persons accused not according to h 2, and according to p.1 Art. 175 of UK. Similar examples of the wrong qualification of actions of convicts namely when essential elements of offense were seen in actions of guilty persons, UK provided by the p. 2 of Art. 175, and case arrived in court with accusation on p.1 this Article, it is a lot of in court practice of all regions. It is connected with certain difficulty which arises at bodies of pretrial investigation and courts in case of interpretation of the concept "inappropriate use of the means intended for salary payment". Bodies of pretrial investigation did not find out how at the company, especially non-state pattern of ownership, the salary fund is created as means which arrived into the account of the company are used. Quite often courts agreed with the conclusions of investigators that actions of the head who had on the account or in cash desk of the company of means and did not pay the salary and spent them for economic needs for ensuring normal economic activity of the company, are actions which fall only under the essential elements of offense provided p.1 by Art. 175 of UK.

So, the Yampol district court of the Sumy region sentence of June 29, 2004 condemned according to p.1 Art. 175 of UK of the CEO of TOV F. for the fact that, having on the account and in cash desk of society of means in the amount more than 112 thousand UAH (the debt for April 1, 2004 constituted 51 thousand UAH), spent 12 thousand UAH for salary payment, and spent other cash receipts for payment of energy carriers, acquisition of fuels and lubricants, interest payment for use of bank loan and other requirements of society.

On the specified case nonpayment of the salary owing to inappropriate use of means was pledged in the formulation of accusation, but the question of qualification of actions of perpetrators according to the p. 2 of Art. 175 of UK remained out of attention of the investigator and the prosecutor.

According to the existing criminal procedure legislation the court considers case in limits of the brought charge and cannot initiate change of accusation on more serious crime, and prosecutors who are involved in consideration of the case by Trial Court do not react properly to the wrong qualification of actions of perpetrators.

Some courts Lviv and other areas retrained to action of defendants from the p. 2 on p.1 Art. 175 of UK, motivating the decisions with the fact that heads of the companies of private pattern of ownership are managers of the gained income which have no purpose on salary payment unlike the state companies. Other courts in case of expenditure heads of the companies of money for the economic purposes, but not on salary payment or debt repayment on its payment, condemned defendants according to the p. 2 of Art. 175 of UK. Brought confirms lack of single court practice on qualification of actions of persons guilty of nonpayment to workers of the salary.

The order is to destination regulated by means only for organizations and the organizations which are financed from the budget and in which financial records means for salary payment are accurately determined. Whereas according to Art. 319 of the Civil code of Ukraine and Art. 134 of the Economic code of Ukraine the owner (the subject of housekeeping) owns, uses and disposes of the property, including means, on own discretion.

Thus, if to interpret the qualifying sign of the p. 2 of Art. 175 of UK literally, then under this Article it would be possible to bring to trial only heads of those organizations and the organizations in which use of means is target. However according to the p. 3 of Art. 15 of the Law "About Compensation" compensation of employees of the company is performed in first-priority procedure. Therefore, in case of expanded interpretation of the qualifying sign of the p. 2 of Art. 175 of UK in this respect it is possible to bring to trial the director in all cases when he used enterprise assets not on salary payment, and on other requirements. Then p.1 Art. 175 of UK in general loses existence meaning as in case of absence the company of means has also no obligatory essential element of offense - groundlessness of nonpayment of the salary, and in cases of use of enterprise assets on other requirements, but not on salary payment, there comes responsibility according to the p. 2 of Art. 175 of UK. Therefore the qualifying sign of the p. 2 of this Article needs in-depth examination and the analysis, and practice of its application - additional explanation.

Generalization certified that from the crimes committed on set with nonpayment of the salary the crimes provided by Articles 172, of 212, 364 and 366 UK are most of all widespread but also in these cases of identical practice concerning qualification of actions there are no perpetrators.

It is necessary to consider that groundless deliberate nonpayment of the salary in case of absence in actions of the perpetrator of other actus reus is covered by the special actus reus provided by Art. 175 of UK, and additional qualification, in particular according to Art. 364 of UK does not require.

Cases of qualification of actions of convicts on cumulative offenses which structure is provided p.1 by Art. 175 and p.1 Art. 366 of UK (office counterfeit) are the most typical. As a rule, such qualification is connected with creation by heads of the companies of fraudulent documents of the statistical reporting (the statistic report of the N 1-PV form, the report "About work") for concealment of debt, available at the company, for salary payment.

In courts there is no identical practice on qualification of actions of heads who except nonpayment of the salary also evaded paying taxes.

For example, the Tokmatsky district court of the Zaporizhia region sentence of March 11, 2004 condemned according to p.1 Art. 175 and the p. 2 of Art. 367 of UK of the director of K LLC., who except nonpayment of the salary did not transfer into the budget 13 thousand 677 UAH of the income tax from citizens that had serious consequences for state interests.

Other courts of action of defendants for tax avoidance qualified according to Art. 364 of UK.

According to the explanations given in Items 7, of the 8th resolution of the Plenum of the Supreme Court of Ukraine of October 8, 2004 N 15 "About some questions of application of the legislation on responsibility for tax avoidance, charges, other obligatory payments" of tax avoidance from the income of physical persons which collection since January 1, 2004 is provided by the Law of May 22, 2003 N 889-IV "About tax on the income of physical persons" deliberate not deduction or not budget contribution till January 1, 2004 of the income tax from citizens which collection was provided by the Decree of the Cabinet of Ministers of Ukraine of December 26, 1992 N 13-92 "About the income tax from citizens" is qualified according to Art. 212 of UK, and, it shall be qualified as authority misuse or official position for Art. 364 of UK.

There is no single practice in courts and concerning qualification of actions of heads because of which the salary not in full, and partially was paid workers.

Part 1 of Art. 41 of the Code of Ukraine about administrative offense (further - KPAP) provides the administrative responsibility for violation of fixed terms of salary payment or payment of the last not in full, and irrespective of the debt size. Therefore criminal liability according to Art. 175 of UK can come only in case of nonpayment of the salary in full, and in case of its incomplete payment every month the head can be brought only to the administrative responsibility. Otherwise action p.1 is nullified by Art. 41 of KPAP and there occurs excess and groundless criminalization of acts of heads of the companies.

Groundless nonpayment of the salary cannot be qualified according to Art. 172 of UK as responsibility for such acts is provided by special regulation - Art. 175 of UK. Considering that this Article has blanket nature, courts in sentences and resolutions, as a rule, are specified what regulations were broken. However there is no single practice in this question. Most courts referred to the Constitution of Ukraine, the laws: "About compensation", of December 21, 2000 N 2181-III "About procedure for repayment of obligations of taxpayers to budgets and the state trust funds", of July 3, 1991 N 1282-XII "About indexation of cash incomes of the population" (in edition of the Law of February 6, 2003 N 491-IV), of July 16, 1999 N 996-XIV "About financial accounting and the financial reporting in Ukraine", articles 115 and 116 Labour Codes, the presidential decree of Ukraine of May 12, 1996 N 333/96 "About urgent measures for ensuring timely salary payment, pensions, grants and other social payments" and of May 7, 2001 N 292/2001 "About urgent measures for acceleration of debt repayment for the salary". In some sentences there are no references on any legislative or regulations.

In disposition of Art. 175 of UK it is specified about responsibility for nonpayment of the salary, grant, pension or other payment established by the law. Therefore, in case of the formulation of accusation and the resolution of sentence it is necessary to refer to the specific provisions of the law (laws) which establish these payments. For the salary those, in particular, are the Constitution of Ukraine, the Law "About Compensation" and provisions Labour Codes.

 

Release of persons from criminal liability

According to requirements of the p. 3 of Art. 175 of UK person is exempted from criminal liability if before attraction to such responsibility it performs salary payment.

According to the solution of the Constitutional Court of Ukraine of October 27, 1999 of N 9-rp/99 on case for the constitutional representation of the Ministry of Internal Affairs of Ukraine of rather official interpretation of provisions of the p. 3 of Art. 80 of the Constitution of Ukra¾ni (case on parliamentary privilege), criminal prosecution as the stage of criminal prosecution begins with the moment of presentation to person of accusation in crime execution.

Therefore, based on the p. 3 of Art. 175 of UK it is necessary for release of the head from criminal liability that it performed salary payment before presentation to it of accusation in groundless nonpayment of the salary. But some courts allow violations of this requirement of the law.

So, the Lutsk gorrayonny court the resolution of March 25, 2004 exempted from criminal liability based on the p. 3 of Art. 175 of UK of the director of private firm G. who during 2002-2003 did not pay employees of firm the salary, having owed 12 thousand 600 UAH. At the same time the court did not consider that paid wage arrears of G. after the direction of case concerning it in court with the indictment. Case is closed based on Art. 7 of the Code of Criminal Procedure and Art. 48 of UK.

Some courts closed cases and in debt repayment cases at stage of consideration of the case in court. Such practice is vicious.

Part 3 of Art. 175 of UK is special regulation of release from criminal liability, and in case of its application references to other regulations of UK are superfluous. Besides, application by courts at the same time, for example, Art. 45 or Art. 48 of UK obliges them to comply with the conditions of release from criminal liability specified in these regulations (crime execution for the first time and so forth) whereas the p. 3 of Art. 175 of UK of other conditions, than salary payment before criminal prosecution, is not provided.

At the same time judges have question by what norm of the Criminal Procedure Code to be guided in case of release of person from criminal liability based on the p. 3 of Art. 175 of UK. One courts are guided at the same time by Art. 7 of the Code of Criminal Procedure (release from criminal liability owing to change of situation), others - Art. 72 of the Code of Criminal Procedure (release in connection with efficient repentance). But these norms of the Criminal Procedure Code contain the reference to certain articles of the Criminal Code (Art. 48 and Art. 45 respectively) which provide certain conditions and the bases for release from criminal liability.

Because such procedure for release is not regulated by the criminal procedure law, before settlement of this question at the legislative level in case of release of person from criminal liability based on the p. 3 of Art. 175 of UK it is necessary to be guided by Art. 72 of the Code of Criminal Procedure.

 

Practice of criminal sentencing

The analysis of practice of assignment of punishment for the committed crimes certified that to real custodial sanction guilty persons were not condemned. Mostly courts imposed mulctary punishment. Persons also to corrective works, restriction of freedom or imprisonment with release from serving sentence with testing based on Art. 75 of UK were condemned. Also additional punishment in the form of deprivation of the right to hold certain positions or to be engaged in certain activities was applied.

Usually courts correctly resolve issue concerning assignment of punishment by the guilty person, i.e. observe requirements of articles 65-73 UK and explanations which the Plenum of the Supreme Court of Ukraine in the resolution of October 24, 2003 N 7 "About practice of appointment of criminal penalty as courts" (further - the resolution of the Plenum N 7) made, and choose as the convict of punishment, sufficient for their correction and the prevention of new crimes.

However generalization covered number of problems concerning application by courts of the additional punishment prescribed p.1 by Art. 175 of UK.

Appeal Courts complain about inconsistency of the legislator and imperfection of the sanction of the p. 2 of Art. 175 of KK which does not prescribe obligatory additional punishment in the form of deprivation of the right to hold certain positions or to be engaged in certain activities, than it takes place in p.1 this Article. At the same time in one of the checked cases courts did not apply the p. 2 of Art. 55 of UK in case of condemnation of person according to the p. 2 of Art. 175 of this Code and availability of the bases for application of additional punishment in the form of legal prohibition to hold certain positions or to be engaged in certain activities. It demonstrates that courts not fully use possibilities of the penal statute.

Significant amount of Trial Courts in case of appointment of punishment as the convict in the form of deprivation of the right to hold certain positions or to be engaged in certain activities does not concretize such positions or activities, being limited to the general formulation, i.e. courts do not observe the requirements stated in item 17 of the resolution of the Plenum N 7.

Quite often courts violate requirements of Art. 70 of UK and choose additional punishment not for separate crime, and on their set.

 

Civil actions

Recovery suits of the salary which was owed in cases of the specified category were shown by the victims or in their interests prosecutors only in isolated cases, but also in these cases courts solved such claims ambiguously.

In certain cases courts did not make decisions concerning the declared civil actions on debt collection on the salary at all, in others - made the decision on debt collection from the company, and sometimes - with the head's UK condemned according to Art. 175.

For example, Malinovsky sentence of August 10, 2004 decided to collect district court of Odessa for benefit of injured 65 thousand 859 UAH of the unpaid salary from the convict according to p.1 Art. 175 of UK of the director of JSC Yu. Such judgment is wrong as the salary is paid from enterprise assets, organizations, the organizations and wages payable can be levied only from these legal entities.

The Appeal Court of the Kharkiv region considers that the solution of question concerning debt collection on the salary and compensations of damage caused by its nonpayment perhaps only according to the procedure of civil legal proceedings because (considering specifics of subject to criminal encroachment - labor rights of the victim) the material requirement cannot be subject of the civil action of criminal cases of the called category. Such opinion is preemlimy.

Besides, according to Art. 32 of the Law "About Compensation" employment disputes concerning compensation are considered and solved according to the legislation on employment disputes.

The procedure for consideration of individual employment disputes is regulated by hl. The XV Labour Code where it is provided that the employment dispute is solved the commission on employment disputes or local court on the statement of the worker.

In view of the fact that employment disputes cannot be considered in criminal procedure and that object of crime which structure is provided by Art. 175 of UK are labor, but not property right of person, actions of debt on the salary and compensation in connection with violation of terms of its payment shall be considered according to the procedure of civil legal proceedings especially as the company, organization or the organization, but not the head who is brought to trial according to Art. 175 of UK shall be the defendant in such claims.

 

Separate resolutions

Despite of extreme importance in social aspect of question of rather timely compensation and availability of the bases for the corresponding judicial reaction by results of hearing of cases, courts very seldom used the opportunities given them by provisions of Art. 23-2 of the Code of Criminal Procedure.

Separate resolutions according to the procedure, provided by the specified Article, for the analyzed category took out courts only in certain cases, and they, as a rule, concerned shortcomings of work of prosecutor's office.

* * *

Generalization of practice of consideration of criminal cases about crimes which structure is provided by Art. 175 of UK certified that it is necessary to raise the quality level of pretrial investigation and judicial review of cases of the called category.

Due to the lack of technique of investigation of cases of such category bodies of pretrial investigation violate requirements of the Code of Criminal Procedure, make mistakes in case of qualification of actions of persons which are made responsible, and so forth.

Investigators and courts not always check and research such signs of this actus reus as premeditation and groundlessness of nonpayment of the salary, and also the reason of its nonpayment; whether it was caused by need of use of means for continuation of economic activity of the company and its existence, and such incompleteness of pretrial and court investigation can call into question justification of condemnation of the director for deliberate and groundless nonpayment to workers of the salary.

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(1) Generalization is prepared by the judge of the Supreme Court of Ukraine O. F. Selivon and the main consultant of management of generalization of court practice O. S. Ishchenko.

 

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