ACQUISITION OF ASSETS BY OTHER PERSONS FOR THE PURPOSES OF THE LEGAL PROCEDURE OF RECOGNIZING ASSETS AS UNFOUNDED AND CHARGING THEM TO STATE INCOME
УДК 347.9
ORCID: 0000-0002-3900-5170
DOI 10.37566/2707-6849-2022-1-2(38-39)-14
Vira MYKHAILENKO,
Judge of the High Antiсorruption Court, PhD
ACQUISITION OF ASSETS BY OTHER PERSONS FOR THE PURPOSES OF THE LEGAL PROCEDURE OF RECOGNIZING ASSETS AS UNFOUNDED AND CHARGING THEM TO STATE INCOME
The article examines the problem of the acquisition by third parties of assets in respect of which the question of unfounded is raised. The concepts of «on behalf of» and «the ability to directly or indirectly carry out actions in relation to assets that are identical in content to the exercise of the right to dispose» are analyzed for the purpose of the procedure for recognizing assets as unreasonable and charging them to state income. It has been established that when applying the civil forfeiture procedure, there can be two ways of acquiring unjustified assets – direct (direct) and indirect (indirect). In case of direct acquisition of an asset by a person authorized to perform the functions of the state or local government, establishing such a fact should not be difficult. At the same time, the acquisition by an official of property, for which he cannot have legal income, through third parties entails problems in establishing the circumstances to be proved. The participation of a third party in the procedure for recognizing assets as unfounded is based on the presumption that such a person is the nominal (not real) owner of the property, and this property was acquired in the interests of the subject of the declaration. It has been established that when considering cases on recognizing assets as unfounded, it is illogical to expect formal confirmation of the relationship of commission between such persons, because it is the intention to hide certain property that determines the involvement of another person in its acquisition. Factors have been identified that may indicate that the asset was acquired on behalf of, or the subject of the declaration may directly or indirectly dispose of this asset.
Key words: unjustified assets, subject of declaration, civil confiscation order, right of disposal, nominal owner.
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