The history and development of "economic and financial crimes" in Ukraine and the world

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Анотація

economic financial crim

Історія та розвиток «економічних і фінансових злочинів» в Україні і в світі

Базюк Т.В.

Ключові слова: економічна діяльність, банкрутство, економічні та фінансові злочини, зарубіжне законодавство, кримінальне право.

Аннотация

Базюк Т.В.

Ключевые слова: экономическая деятельность, банкротство, экономические и финансовые преступления, зарубежное законодательство, уголовное право.

Annotation

Bazyuk T.

In the article analyzed the history and development of the “economic and financial crime” in Ukraine and in the world. The conclusion is that the study of the historical foundations of economic crimes is very important, because based on the analysis of the criminal legislation of the past years, there is an opportunity to improve the existing legislation, which is based on Ukrainian legal tradition. The article analyzed international genesis of such crimes.

Keywords: economic activity, bankruptcy, economic and financial crime, foreign legislation, criminal law.

Economic Offences are included in the separate category of criminal offences. Such offences not only victimize the individuals with economic and financial losses but may also have adverse impacts on the national economy. Economic offences covers the crimes such as counterfeiting of currency, fraud, financial scams, money laundering, etc. which cause a serious concern for the Nation's security and the governance. On the other hand the social offences are the criminal activities arising from the violation of the social laws and interests of the state and public in general [1, p.1]

The first known criminal and, in particular, the economic rules of ancient Russ were enshrined in the treaties with Byzantium of 907, 911, 944 years in the «Russkaya Pravda» [2]. During this period, the bases for the written law were legal customs. The crimes were not considered dangerous for society as a whole, constitute an infringement of personal interests, expressed in the establishment of property damages and the possibility of applying penalties based on the principle of retaliation.

In XV-XVII centuries criminal law got completely public nature, the crime came to be regarded as acts threatening to society as a whole. The monuments of this period, the rights (Code of Law in 1497, 1550 years, «the Sobornoye Ulozheniye of 1649») the secular penal provisions are separated from the church, but still inextricably linked with the norms of other branches of law. As wealth protected by the state and society, especially those crimes were condemned both by the religious communities and by the authorities [3, с.257].

A considerable number of compositions, now called economic crimes, was known in the time of the adoption of «the Sobornoye Ulozheniye of 1649», which dealt with the blameworthiness, for example, counterfeiting, avoidance of various kinds of duties and taxes (including trade), violation of creditor obligations (in particular, false bankruptcy), the acquisition of stolen property, forced to make a deal or fraudulent charges such coercion, smuggling, violations of rules of trade (especially alcoholic beverages, tobacco) [4].

Singling out such acts as criminal, Sobornoye Ulozheniye containing rules on issues of procedural nature, as well as matters of civil and administrative liability, in connection with which it is difficult to speak not only of any particular types of crimes in the economic sphere, but also the system of crime in general [5].

Ancient Greek commercial crime is testified to by the fact that the Parthenon's architect had to flee Athens to escape charges of embezzlement

Roman law decreed that dardanarii those who conspired to raise the price of grain, oil, bread, meat, or salt by the detention of vessels the suppression of provisions or similar practices were to be fined.

The development of trade in Europe in the middle ages brought in a range of punishments to restrict fraudulent practices by the growing merchant classes

In 1469 Louis XI of France promulgated an act to curb fraud in the sale and delivery of market produce.

Early English law decreed that any person who conducted business had to bring witnesses before the king's deputy who could testify to the detail of the transaction.

In the 13^th Century rules were enacted into statute outlawing 3 specific marketplace actions: forestalling, regrating and engrossing. These were acts that tried to artificially raise the price of commodities: spreading false rumours, buying and selling the same article in the same market for a higher price, buying foodstuffs in the marketplace before the specified time.

The acts outlawing these practices were repealed in 1767 as it was felt that they were restricting free trade. Adam Smith published «The Wealth of Nations» in 1776 a free market exponent his treatise was published at the dawn of the industrial revolution. Most frauds prior to this time were related to food products within the agrarian society. This changed with the expansion of trade Concern over increased fraudulent acts was expressed in 1602 by Sir Edward Coke who said, “Fraud and deceit abound in these days more than in former times”.

An interesting period in the history of economic crimes is a period called «railway mania». With the coming of the railways big business fraud was here to stay, Railways transformed English finance.

The aristocracy and gentry became heavily involved as they were often given large tranches of shares as compensation for lines going across their land. This mania affected large numbers of the moneyed populous who held these shares.

The phenomenal growth of the Victorian railways network and the corporations gave rise to numerous fraud possibilities. The company explosion started by the Railway Mania of 1845 was extended by the limited liability act of 1855 and the Companies Acts of 1856 and 1862. These acts set in train the vehicles for greater levels of business and financial crime.

White-collar crimes contain some economic crimes. So, history of appearance of white-collar crime is interesting for our investigation. The term “white- collar crime” refers to crime that is economic in nature, committed by business professionals through fraud, deception, and theft [6].

The term white-collar crime only dates back to 1939. Professor Edwin Hardin Sutherland was the first to coin the term, and hypothesize white-collar criminals attributed different characteristics and motives than typical street criminals.

Mr. Sutherland originally presented his theory in an address to the American Sociological Society in attempt to study two fields, crime and high society, which had no previous empirical correlation. He defined his idea as “crime committed by a person of respectability and high social status in the course of his occupation” (Sutherland, 1939).

Many denote the invention of Sutherland's idiom to the explosion of U.S business in the years following the Great Depression. Sutherland noted that in his time, “less than two percent of the persons committed to prisons in a year belong to the upper-class.” His goal was to prove a relation between money, social status, and likelihood of going to jail for a white-collar crime, compared to more visible, typical crimes. Although the percentage is a bit higher today, numbers still show a large majority of those in jail are poor, “blue-collar” criminals, despite efforts to crack down on corporate crime.

Other fiscal laws were passed in the years prior to Sutherland's studies including antitrust laws in the 1920's, and social welfare laws in the 1930's. After the Depression, people went to great lengths to rebuild their financial security, and it is theorized this led many hard workers, who felt they were underpaid, to take advantage of their positions [7].

Societal interest in white-collar crime grew rapidly in the 1970s, rivaling the attention street crime had received in the preceding decade.

Prosecutors gave it higher priority than in the past. Targets of investigation included individual businessmen, corrupt politicians, and such corporate activities as international business bribery, the manufacture of dangerous products, and environmental pollution. The renewed interest was motivated at least in part by the discovery of corruption and other illegal practices at the highest levels of government, and by a growing sensitivity to dangerous corporate practices. The growth in interest was great enough that it could be fairly labeled a social movement.

When the pace of scholarship on white-collar crime also revived, it became evident that the wide range of phenomena suggested by the concept had to be broken down into components. Attention had focused so much on the nature of the offender that actual criminal behavior had gone unexamined. It seemed to make little sense to include under a single rubric as diverse a set of activities as bank embezzlement, land swindles, price-fixing, fraudulent loan applications, and bribery.

The first important shift away from the legacy of Sutherland was accomplished by taking the offense itself as the principal object of inquiry. In the first such effort, Herbert Edelhertz proposed to define white-collar crime as “an illegal act or series of illegal acts committed by nonphysical means and by concealment and guile, to obtain money or property, to avoid payment or loss of money or property, or to obtain business or personal advantage”.

A related shift is to search for behavioral patterns that characterize different types of white-collar crime. Susan Shapiro, for example, distinguishes fraud, selfdealing, and regulatory offenses (pp. 20-24), and Mitchell Rothman separates frauds, takings, and collusion [8].

Thus, economic crimes have a long history worldwide. Over the century the concept of “economic crimes” were of a different character.

Research of historical foundations of determining criminal responsibility and punishment for economic crimes is a very important and timely, since based on the analysis of the criminal legislation of the past years, there is an opportunity to improve the current legislation, which is based on the Ukrainian legal tradition.

References

1. Ranga Ajay. Socio economic offences in India. / Ajay Ranga // Research Dimensions. - Volume 2, № 8 / Oct 2014. - P. 1-5.

2. Руська правда // [Електронний ресурс]. - Режим доступу: http://litopys. org.ua/yushkov/yu03.htm

3. Скворцова О.В. Генезис кримінально-правової відповідальності та покарання за злочини у сфері економіки в кримінальному законодавстві україни в xx столітті та на сучасному етапі. / О.В. Скворцова. - Том 26 (65). - 2013. № 2-1 (Ч. 2). - С. 256-262.

4. Соборное Уложение 1649 года // [Электронный ресурс]. - Режим доступа: http://www.hist.msu.ru/ER/Etext/1649.htm

5. История развития уголовного законодательства о преступлениях в сфере экономики // [Электронный ресурс]. - Режим доступа: http://www.pravo.vuzlib.su/ book_z1330_page_61.html

6. White Collar/Economic Crimes // Electronic resource: http://www.jenkinslaw. net/white-collar-economic-crimes.html

7. White-collar crime // Electronic resource: http://whitecollar.wikia.com/wiki/ White_Collar_Crime#cite_note-0

8. White-Collar Crime: History of an Idea - The Evolution Of White-collar Crime // Electronic resource: http://law.jrank.org/pages/2312/White-Collar-Crime- History-an-Idea-evolution-white-collar-crime.html

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