When does an official bear administrative responsibility?

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Published: 08/05/2016

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Administrative responsibility is imposed not only on legal entities (enterprises, organizations, institutions), but also on their official representatives.

Typically, various violations of labor legislation committed by employers in relation to their employees are punished in this way.

The reasons for punishing managers vary widely.

For example, a fine may be imposed for incorrect maintenance of work books or their absence, for infringement of the rights of employees, for wrongful dismissal from the workplace or refusal to hire a vacant position. For each violation, the Code of Administrative Violations provides its own punishment and measures.

• Who is the official?
• Responsibility under the law
• Procedure and terms of attraction
• Features of attraction

What categories of citizens are considered officials?

The content of the term in question is defined in the note to Art.
2.4 Code of Administrative Offenses of the Russian Federation. Firstly, this is a representative of the government who has the right to give orders to people who are not officially dependent on him. It can be concluded that the legislator had in mind persons working in the state. bodies with a certain scope of powers. Secondly, an official is a citizen who has organizational and administrative, administrative and economic powers in various states. authorities, municipalities, army.

In legal practice, there would be no doubt as to which categories of citizens fall under the category in question if the legislator, in the note to Art. 2.4 of the Code of Administrative Offenses of the Russian Federation did not equate certain subjects with officials. We list them below.

Citizens who are not officials, but bear the same administrative responsibility

Citizens bearing similar responsibility include:

1. Managers and employees of companies who have committed violations in the exercise of organizational and administrative, administrative and economic powers.
2. Arbitration managers.
3. Members of boards of directors of organizations, collegial bodies, counting and audit commissions, commissions for the abolition of legal entities, as well as founders of companies (only for certain offenses, for example, under Article 19.7.12 of the Code of Administrative Offenses of the Russian Federation).
4. Members of commissions for public procurement, contract managers (only for some provisions of the Code of Administrative Offenses of the Russian Federation, for example, under Article 19.7.2).
5. Organizers of public procurement, persons conducting it, as well as members of procurement commissions (only for some articles, for example Article 7.32.3 of the Code of Administrative Offenses of the Russian Federation).
6. Members of commissions for licensing activities (only under Article 19.6.2 of the Code of Administrative Offenses of the Russian Federation).
7. Individual entrepreneur, unless other rules are established by special legislative norms.
8. Individual entrepreneur employees who committed punishable acts in connection with failure to fulfill or improper performance of official duties (clause 14 of the resolution of the Plenum of the Armed Forces of the Russian Federation “On some issues ..." dated October 24, 2006 No. 18).
9. Organizers of auctions, as well as persons conducting auctions (only under Article 7.32.4 of the Code of Administrative Offenses of the Russian Federation).

Official according to the Criminal Code of the Russian Federation

According to Note 1 to Art. 285 of the Criminal Code of the Russian Federation by officials in the norms of Ch. 30 of the Criminal Code of the Russian Federation recognizes persons who permanently, temporarily or by special authority exercise the functions of a government representative or perform organizational, administrative, administrative and economic functions in state bodies, local governments, state and municipal institutions, state corporations, state companies, state and municipal unitary enterprises, joint-stock companies in which a controlling stake belongs to the Russian Federation, constituent entities of the Russian Federation or municipalities, as well as in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation.

At the same time, the non-classification of a person as an official by a special law does not mean the impossibility of bringing him to justice on the basis of these articles of the Criminal Code of the Russian Federation. This conclusion was made by the Constitutional Court of the Russian Federation in its Determination

dated 06/01/2010 N 885-О-О “On the refusal to accept for consideration the complaint of citizen Alexander Vladimirovich Vikhorev about the violation of his constitutional rights by the provisions of the notes to Article 285 of the Criminal Code of the Russian Federation in conjunction with Part 1 of Article 2 of the Federal Law “On General Principles of Organization local self-government in the Russian Federation”, establishing that the fact that Federal Law dated October 6, 2003 N 131-FZ “On the general principles of organizing local self-government in the Russian Federation” does not classify a deputy of a representative body of a municipal formation as a local government official (Article . Art. 2, 40), in itself does not mean that such a deputy cannot be recognized as an official within the meaning of paragraph 1 of the notes to Art. 285 and notes to Art. 318 of the Criminal Code of the Russian Federation.

In paragraph 5 of Art. 4 of the Federal Law of 02.05.2006 N 59-FZ “On the procedure for considering appeals from citizens of the Russian Federation” states that an official is a person who permanently, temporarily or by special authority performs the functions of a government representative or performs organizational, administrative, administrative and economic functions in state body or local government body.

An analysis of these definitions indicates that an official is understood as a person vested with administrative powers or performing organizational, administrative or administrative functions in an organization.

In accordance with paragraphs 4, 5 of the Resolution

Plenum of the Supreme Court of the Russian Federation dated October 16, 2009 N 19 “On judicial practice in cases of abuse of official powers and exceeding official powers” ​​organizational and administrative functions should be understood as the powers of an official that are associated with the management of the labor collective of a state body, state or municipal institution (its structural unit) or individual employees subordinate to them, with the formation of personnel and the determination of the labor functions of employees, with the organization of the procedure for serving, the application of incentives or rewards, the imposition of disciplinary sanctions, etc. Organizational and administrative functions include the powers of persons to make decisions that have legal significance and entail certain legal consequences (for example, to issue a certificate of temporary disability by a medical worker, to establish by an employee of a medical and social examination institution that a citizen has a disability, to take exams and give grades by a member state examination (certification) commission).

As administrative and economic functions, one should consider the powers of an official to manage and dispose of property and (or) funds on the balance sheet and (or) bank accounts of organizations, as well as to perform other actions (for example, making decisions on payroll, bonuses, monitoring the movement of material assets, determining the order of their storage, accounting and control over their expenditure).

The procedure for holding officials accountable under the Code of Administrative Offenses of the Russian Federation

The procedural procedure and terms for bringing officials to administrative responsibility are general; the administrative law does not provide for any special procedures. The statute of limitations for imposing punishments is similar (Article 4.5 of the Code of Administrative Offenses of the Russian Federation).

The step-by-step procedure is as follows:

1. Initiation of production. The list of reasons for this is listed in Art. 28.1 Code of Administrative Offenses of the Russian Federation. According to the general rule provided for in paragraph 1 of Art. 28.2 of the Code of Administrative Offenses of the Russian Federation, when a procedure is initiated, a protocol is drawn up (exceptions are cases when the case is initiated by a prosecutor, automatic recording of the violation is carried out, and in some other cases).
2. The protocol is submitted for consideration.
3. The case is considered, and based on the results, a decision is made to prosecute or to terminate the proceedings.

You can read about the general procedure for bringing administrative liability to all violators, regardless of their status, here.

Tasks of officials

It is worth considering the work of officials in identifying offenses using the example of the Department of Internal Affairs. It is this authority that carries out most of the functions in the field of crime prevention and suppression. Cases of the following nature are being considered:

• violation of the rules of stay at the state border;
• appearing in public places while drunk;
• petty hooliganism;
• drinking alcohol in public places;
• violation of road safety rules, etc.

The power of the Department of Internal Affairs affects many spheres of public life, but it is not unlimited. It is also worth noting that actions and inactions of an official that do not comply with the law can be identified and condemned by another official.

Features of bringing officials to administrative responsibility

Despite the non-specific procedure for bringing officials to administrative responsibility, there are some peculiarities. Formally, being individuals, the subjects in question are endowed with a special legal status, the presence of which indicates a greater social danger of the violation they committed and the need to apply a more stringent measure of liability.

The features of the administrative responsibility of officials include:

1. The need to prove their status, for example, the fact of working in the company, the presence of certain duties that were not performed properly.
2. It is mandatory that the sanction contains an indication that it is the official who can be held accountable under it. For example, in the sanction of Part 3 of Art. 12.23 of the Code of Administrative Offenses of the Russian Federation directly states that violation of the requirements for the transportation of children established by the Traffic Rules entails a fine for the category of persons in question in the amount of 25,000 rubles.
3. A limited list of penalties (we will cover this point in more detail later).
4. Impossibility of being held accountable if the official performed his duties properly. Accordingly, law enforcement officers always need to check specific powers, job descriptions, etc. and the compliance of the actions of officials with their requirements.

Responsibility under the law

Of the 442 articles of the Code, liability for persons holding high official positions is specified in 330 legislative documents, that is, approximately 75% of the Code of Administrative Offenses (in its main part) relates to violations committed by managers at various levels.

Violations are usually associated with the participation of these persons in the entrepreneurial, administrative or economic activities of various legal entities:

• Managers infringe on the rights of workers or citizens who depend on their activities. Such violations are reflected in the fifth chapter of the Code of Administrative Offenses (50 articles out of 55).
• Allow violations of private or state property. The seventh chapter of the Code (29 articles out of 33) is devoted to this.
• They violate the rules for the use of natural resources and grossly violate the protection of the natural environment. The list of penalties for this type of violation can be found in the eighth chapter of the Code (38 articles out of 41).
• Violations are allowed in industrial activities, construction of facilities, and energy use. Responsibility for such violators is specified in the ninth chapter of the Code (14 out of 14 articles).
• They violate the rules of agricultural and veterinary activities. Land reclamation is carried out and controlled incorrectly. The tenth chapter of the Code (also 14 out of 14 articles) is devoted to such violations.
• They allow violations in the field of communications and information technology. The list of punishments for this category of managers can be seen in the thirteenth chapter of the Code (23 out of 24 articles are devoted to this topic).
• They violate business rules. Such violations are reflected in the fourteenth chapter of the Code (32 articles out of 32).
• They commit violations in the sphere of securities circulation, as well as in the financial and tax spheres. These are quite serious violations, which, for example, include evasion of timely payment of taxes for employees of an enterprise or organization. The list of punishments can be seen in the fifteenth chapter of the Code (27 articles out of 28).

Violations in the customs sphere are also quite common in our country.

The sixteenth chapter of the Code (21 articles out of 23) is devoted to this topic.

Responsibility for persons who encroach on state institutions is fixed in the seventeenth chapter of the Code (10 out of 15 articles).

Violations in the area of ​​management are reflected in the nineteenth chapter of the Code (19 out of 27 articles).

Violations in the field of military registration of citizens are recorded in the twenty-first chapter of the Code (4 out of 7 articles).

In addition to the provisions of the Code of Administrative Offences, many subjects of the federation have established at the legislative level other violations requiring administrative punishment. All of them are associated with a gross violation of the rights and freedoms of workers, non-compliance with local regulations and current labor legislation .

It should be noted that the application of punishment to an individual (organization or enterprise that committed violations) does not exclude punishment of the guilty officials.

Features of administrative penalties that can be applied to officials

In paragraph 1 of Art. 3.2 of the Code of Administrative Offenses of the Russian Federation lists the types of punishments. At the same time, the Code of Administrative Offenses of the Russian Federation does not establish any rules stating that certain types of punishment cannot be applied to officials.

However, the Code of Administrative Offenses of the Russian Federation does not contain articles providing for certain measures of liability for officials, namely punishment in the form of:

• deprivation of rights;
• arrest;
• expulsion;
• suspension of activities;
• compulsory work;
• prohibition from visiting places where competitions are held.

The most common types of punishments to which this category of persons is subjected are a warning, a fine, and disqualification. This is due to the nature of the violations committed by officials, as well as the sanctions of the articles of the special part of the Code of Administrative Offenses of the Russian Federation.

You can read more about all types of administrative penalties in the article “The Concept and Types of Administrative Responsibility.”

Official and judicial practice

The position of the Supreme Court of the Russian Federation on this issue indicates that officials of the organization are employees performing organizational, administrative or administrative functions, that is, employees authorized to perform, within their competence, authority actions that have legally significant consequences, for example, issuing local regulations, give mandatory instructions, hire and fire workers ( Definition

Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated July 18, 2017 NN 305-AD17-1484, A40-91243/2016).

Thus, an official of an organization is an employee who has other employees subordinate to him, has the authority to form personnel and determine the labor functions of employees, to apply incentives or rewards, impose disciplinary sanctions, has the authority to make decisions of legal significance and entailing certain legal consequences, has the authority to manage and dispose of property and (or) funds on the balance sheet and (or) bank accounts of the organization, as well as to perform other actions (for example, making decisions on payroll, bonuses, implementing control over the movement of material assets, determining the order of their storage, accounting and control over their expenditure).

Authorized authorities

Which officials have the right to decide cases of administrative offenses? It all depends on the severity of the violation of the law. So, it is worth paying attention to the following authorities:

• customs and tax authorities, military registration and enlistment offices, border services;
• ATS;
• executive agencies;
• collegiate administrative commissions;
• commissions for minors;
• magistrates, as well as judges from district and regional courts.

Civil servants in Russia are divided into federal and regional. The Parliament, the Government and the President operate at the federal level. At the regional level - the highest official of the constituent entity of the Russian Federation, regional authorities and courts.

STANDARDS FOR DOCUMENT MANAGEMENT

The results of an organization's work depend on the management system, and the creation and management of documents is an integral part of any business process of the organization. Personnel working with documents must be qualified, know their responsibilities and understand the responsibility for their dishonest performance. This is written about in international standards containing requirements for management systems (for example, in GOST R ISO 9001-2015 “Quality management systems. Requirements”, which is often implemented at Russian enterprises). It is no secret that in our country the acceptance of the principles set out in these standards is not easy - many perceive them as a theory expressed in difficult language that has nothing to do with reality. But the provisions of these documents are actually very useful.

The following standards are devoted to the issue of document management:

1. GOST R ISO 15489-1-2019 “System of standards for information, library and publishing. Information and documentation. Document management. Part 1. Concepts and principles" (hereinafter referred to as GOST R ISO 15489-1-2019);

2. GOST R 7.0.101-2018/ISO 30301:2011 “System of standards for information, library and publishing. Information and documentation. Document management systems. Requirements" (hereinafter referred to as GOST R 7.0.101-2018/ISO 30301:2011).

GOST R ISO 15489-1-2019 pays special attention to the distribution of responsibilities between employees. Thus, it is established that responsibility should be determined for:

• all participants in the document creation process;
• persons involved in document management;
• all users of document systems.

According to GOST R ISO 15489-1-2019, responsibility applies to all employees who create and use documents and must be defined, established and communicated to them (Table 1).

In accordance with the requirements of GOST R ISO 15489-1-2019, the organization must establish responsibility in a number of documents (Scheme 2).

To effectively manage documents, responsibilities should be distributed among employees. GOST R 7.0.101-2018/ISO 30301:2011 regulates the implementation of a records management system (hereinafter referred to as RMS), which links records management to organizational success and accountability by creating a structure that includes policies, goals and guidelines for records. The provisions of this standard are used by those organizations that have decided to develop and implement an EMS.