Current problems of combating abuse in capital markets in the criminal law dimension

Abstract

The article provides a comprehensive analysis of the current problems of combating abuse in the capital markets in Ukraine in the criminal law dimension. The features of the regulatory consolidation of liability for manipulation in organized capital markets and the illegal use of insider information, stipulated by Articles 222¹ та 232¹ of the Criminal Code of Ukraine, are investigated. It is established that the key characteristic of the specified norms is their blanket nature, which necessitates the use of special legislation, in particular the Law of Ukraine “On Capital Markets and Organized Commodity Markets”, as well as acts of the regulator - the National Securities and Stock Market Commission.

The content of the concepts of “manipulation in the capital markets” and “insider information”, defined in special legislation, is analyzed, and it is established that the actual content of the provisions of criminal law norms occurs outside the Criminal Code of Ukraine. It is substantiated that such an approach leads to legal uncertainty, complicates the process of qualifying criminal offenses and may contradict the principle of nullum crimen, nulla poena sine lege certa, which requires a clear and unambiguous definition of criminally punishable behavior exclusively by law.

 Particular attention is paid to the issues of implementing the norms of European Union law into national criminal legislation. It is established that, despite the formal harmonization with the relevant provisions of European regulations, the Ukrainian model has significant differences, in particular in terms of delegation of powers to specify the features of offenses. Unlike the EU approach, where the relevant functions are assigned to institutions with a clearly defined status in the executive system, in Ukraine such powers are granted to the capital market regulator, whose legal status is not identical.

 It is concluded that the current model of criminal law regulation requires improvement by specifying the provisions of the relevant norms of the Criminal Code of Ukraine, introducing direct legislative references to special regulatory legal acts, and bringing the mechanisms of delegation of powers into line with constitutional principles and standards of legal certainty.