Administrative liability: in what cases does the court hold a legal entity liable, and in what cases does it hold an official liable?

Administrative responsibility. Concept

Administrative responsibility is the responsibility of individuals and legal entities for committing an administrative offense; a form of legal liability that is less severe than criminal liability. (Large legal dictionary. - M.: Infra - M. A. Ya. Sukharev, V. E. Krutskikh, A. Ya. Sukharev. 2003.).

Administrative liability is a type of liability consisting of applying an administrative penalty to an individual who has committed an administrative offense, as well as to a legal entity found guilty and subject to administrative liability in accordance with national legislation... (extract from Resolution No. 47-13 of the Interparliamentary Assembly of States Parties CIS “On the Glossary of terms and concepts used by the CIS member states in the border area” (Adopted in St. Petersburg on April 13, 2018)).

Administrative liability (in legal literature) is a set of legal consequences unfavorable for a person in the form of administrative penalties provided for by administrative law, applied by an authorized body, official or judge in connection with the commission of an administrative offense by this person.

content of administrative responsibility includes the following elements:

• a negative assessment of the unlawful action (inaction) and the entity that committed it, expressed in the condemnation of the perpetrator on behalf of the state;
• imposing administrative punishment on the guilty person;
• adverse legal consequences for a person brought to administrative responsibility associated with the state of administrative punishment (Article 4.6 of the Code of Administrative Offenses of the Russian Federation).

Concept and types of administrative penalties

Administrative penalties are a measure of liability for an administrative offense. It is used for the purpose of educating a person who has committed an administrative offense in the spirit of compliance with the laws, preventing the commission of new offenses by this and other persons.

Administrative penalties are expressed either in moral or material impact on the offender.

Main types of administrative penalties :

• warning;
• fine;
• paid seizure of an object that was an instrument or object of an administrative offense;
• confiscation of this item;
• deprivation of special rights;
• correctional work;
• administrative arrest;
• administrative expulsion from the Russian Federation of foreign citizens and stateless persons;
• other administrative penalties.

The law divides administrative penalties into basic (administrative fine, warning, administrative arrest, disqualification) and additional.

administrative penalties may be applied to a legal entity :

• warning;
• administrative penalty;
• paid seizure of the instrument or subject of an administrative offense;
• confiscation of the instrument or subject of an administrative offense.

A warning is a penalty of a moral nature, issued in writing or executed in another way.

A fine is a monetary penalty imposed for an administrative offense in cases and within the limits established by law. The fine is charged in an amount that is a multiple of: minimum wage; the cost of the subject of the administrative offense; the amount of unpaid taxes and fees payable.

The amount of an administrative fine cannot be less than 1/10 of the minimum wage and cannot exceed 25 minimum wages, for officials - 50 minimum wages, for legal entities -1000 minimum wages (Article 3.5 of the Code of Administrative Offenses of the Russian Federation).

Paid seizure consists of the forced seizure of only the item that was the instrument or direct object of the commission of an administrative offense.

Confiscation consists of the forced gratuitous transfer of an object that was an instrument of commission or the direct object of an administrative offense into the ownership of the state. Deprivation of special rights granted to a citizen is applied for a period of up to 3 years for gross and systematic violation of the procedure for using these rights.

Correctional labor is applied for a period of up to 2 months, served at the place of permanent work of the person who committed the administrative offense, and with the deduction of up to 20% of his earnings as state income.

Administrative arrest is established for a period of up to 15 days and is applied only in exceptional cases for certain types of administrative offenses.

Administrative responsibility of citizens

According to Art. 2.3 of the Code of Administrative Offenses of the Russian Federation, a person who has reached the age of sixteen at the time of committing an administrative offense is subject to administrative liability.

Taking into account the specific circumstances of the case and data about the person who committed an administrative offense between the ages of sixteen and eighteen, the commission on affairs of minors and the protection of their rights, this person may be released from administrative liability with the application to him of a measure of influence provided for by federal legislation on the protection of rights minors.

Legislative basis of administrative responsibility in the Russian Federation

The legislative basis for administrative responsibility is formed by a whole system of normative legal acts, which contains legal norms that establish administrative responsibility. The main regulations establishing administrative liability are the Code of Administrative Offenses and the Customs Code of the Russian Federation, they also include the Regulations on Commissions for Minors, as well as a number of federal laws of the state on liability for administrative offenses.

Administrative and administrative procedural legislation is only under the joint jurisdiction (that is, joint activity and responsibility) of the Russian Federation and the constituent entities of the Russian Federation.

Thus, we have considered that administrative responsibility is a special type of legal responsibility, one might say, a specific form of negative reaction on the part of the state in the person of its authorized competent bodies to the corresponding category of unlawful manifestations (primarily administrative offenses), according to which the persons who committed these offenses, must answer to the authorized state bodies for their unlawful actions and suffer administrative penalties or penalties for this in the form and manner established by law.

Administrative responsibility of individual entrepreneurs

In accordance with the note to Art. 2.4 of the Code of Administrative Offenses of the Russian Federation, persons carrying out entrepreneurial activities without forming a legal entity bear administrative responsibility as officials, unless otherwise provided by law.

According to paragraph 22 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated January 27, 2003 N 2 “On some issues related to the implementation of the Code of the Russian Federation on Administrative Offenses” when deciding on the basis of what norms of the Code of Administrative Offenses of the Russian Federation are responsible for individual entrepreneurs who have committed offenses In connection with the implementation of entrepreneurial activities, courts must be guided by the note to Art. 2.4 Code of Administrative Offenses of the Russian Federation. If an administrative offense is not related to entrepreneurial activity, an individual entrepreneur bears responsibility as a citizen.

Administrative punishment

The general rules for imposing administrative penalties represent the fundamental principles (principles) that judges, authorized bodies and their officials should be guided by when imposing an administrative penalty on a person who has committed an administrative offense. First of all, all principles of administrative responsibility must be observed (legality, equality of all before the law, justice, etc.).

Penalty for an administrative offense can only be applied to the person who committed it.

Chapter 4 of the Code of Administrative Offenses of the Russian Federation provides for the following general rules for imposing administrative punishment:

1. administrative punishment for committing an administrative offense within the limits established by law providing for liability for this administrative offense;
2. when imposing an administrative penalty on an individual, the nature of the administrative offense he committed, the identity of the perpetrator, his property status, and circumstances mitigating and aggravating administrative liability are taken into account;
3. when imposing an administrative penalty on a legal entity, the nature of the administrative offense committed by it, the property and financial status of the legal entity, and circumstances mitigating and aggravating administrative liability are taken into account;
4. the imposition of an administrative penalty does not relieve a person from fulfilling the obligation for non-fulfillment of which the administrative penalty was imposed;
5. no one can be held administratively liable twice for the same administrative offense.

2. If a person commits two or more administrative offenses, an administrative penalty is imposed for each administrative offense committed.

If a person has committed several administrative offenses that are considered by the same body or official, the punishment is imposed within the limits of only one sanction.

A person who has been imposed an administrative penalty for committing an administrative offense is considered subject to this punishment within 1 year from the date of completion of the execution of the decision to impose an administrative penalty.

A judge, when considering a case of an administrative offense, has the right, in the absence of a dispute about compensation for property damage, simultaneously with the imposition of an administrative penalty, to resolve the issue of compensation for property damage.

Disputes regarding compensation for property damage are resolved by the court in civil proceedings. In a case of an administrative offense considered by other authorized bodies and officials, the dispute over compensation for property damage is resolved by the court in civil proceedings.

Disputes regarding compensation for moral damage caused by an administrative offense are considered by the court in civil proceedings.

Administrative responsibility of officials

According to Art. 2.4 of the Code of Administrative Offenses of the Russian Federation, an official is subject to administrative liability if he commits an administrative offense in connection with failure to perform or improper performance of his official duties.

The note to this article provides the definition of an official - this is a person who permanently, temporarily or in accordance with special powers exercises the functions of a representative of government, that is, vested in the manner prescribed by law with administrative powers in relation to persons who are not officially dependent on him, as well as a person performing organizational-managerial or administrative-economic functions in state bodies, bodies of state extra-budgetary funds of the Russian Federation, local government bodies, state and municipal organizations, as well as in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation.

In paragraph 1 of Art. 3.2 of the Code of Administrative Offenses of the Russian Federation specifies the types of administrative penalties. At the same time, the Code of Administrative Offenses of the Russian Federation does not contain any reservations regarding the fact that any of them cannot be applied to officials. Thus, all administrative penalties provided for in paragraph 1 of Article 3.2 of the Code of Administrative Offenses of the Russian Federation can be applied to officials.

Administrative liability of legal entities

Clause 2 of Art. 2.1 of the Code of Administrative Offenses of the Russian Federation establishes the following procedure for determining the guilt of a legal entity: a legal entity is found guilty of committing an administrative offense if it is established that it had the opportunity to comply with the rules and norms, for violation of which the Code of Administrative Offenses of the Russian Federation or the laws of a constituent entity of the Russian Federation provides for administrative liability, but this the person did not take all measures depending on him to comply with them.

In paragraph 2 of Art. 3.2 of the Code of Administrative Offenses of the Russian Federation lists the types of punishments that can be applied to legal entities:

1. warning;
2. administrative penalty;
3. confiscation of the instrument or subject of an administrative offense;
4. administrative suspension of activities.

Administrative offense

An administrative offense is an unlawful, guilty action (inaction) of an individual or legal entity for which administrative liability is established by the Code of Administrative Offenses of the Russian Federation or the laws of the subjects of the Federation on administrative offenses.

Action (in relation to administrative offenses) is an active form of behavior of the offender, directly related to failure to fulfill duties and legal requirements, and violation of the prohibition.

Inaction (in relation to administrative offenses) is a passive form of behavior of the offender, directly related to failure to fulfill obligations and legal requirements (for example, the head of a trading enterprise did not ensure the availability of certificates for the goods sold).

Signs of an administrative offense:

• antisociality. In terms of social significance, an act that harms the legitimate interests of citizens, society and the state is antisocial;
• illegality consists in committing an act that violates the norms of administrative and other branches of law (labor, land, financial, etc.), which are protected by measures of administrative liability;
• guilt. Legislation considers an unlawful act committed by a person as an administrative offense only if the person is at fault, that is, the act was carried out intentionally or through negligence;
• Punishability of the act. An administrative offense is recognized only as an act for which administrative liability is provided for by law.

The corpus delicti of an administrative offense as a set of signs (elements) established by law, in the presence of which an antisocial act may entail administrative liability.

The object of an administrative offense is social relations arising in the sphere of public administration, regulated by the rules of law and protected by measures of administrative responsibility (general object).

The objective side of an administrative offense consists of an act (action or inaction), which is expressed in a violation of the rules established by administrative legal norms.

The subject of an administrative offense is the person who committed it. According to the current legislation, collective and individual subjects are recognized as subjects of an administrative offense.

Collective subjects are legal entities and other collective entities.

Individual subjects are citizens and other categories of persons with administrative and legal status, taking into account their legal status, professional and social functions.

The subjective side of an administrative offense is the psychological attitude of the subject to the unlawful action or inaction being committed and its consequences.

General, special and special subjects of administrative responsibility

The Code of Administrative Offenses of the Russian Federation distinguishes two types of subjects of administrative responsibility - individuals and legal entities.

In the theory of administrative law, general, special and special subjects of administrative responsibility are distinguished.

1. General subjects (the age at which administrative responsibility begins).

In accordance with Article 2.3 of the Code of Administrative Offenses of the Russian Federation, according to the general rule, a person is subject to administrative liability:

• who had reached the age of sixteen at the time of committing the administrative offense.
• sane person, i.e. capable, due to the state of his mental health, of realizing the factual side and social meaning of his behavior and managing it (Article 2.8 of the Code of Administrative Offenses of the Russian Federation).

The absence of at least one of the specified signs of the subject of an administrative offense entails the absence of an administrative offense, which is a circumstance excluding administrative liability (Clause 2, Part 1, Article 24.5 of the Code of Administrative Offenses of the Russian Federation).

Persons who have such characteristics as “reaching the age of 16” and “sanity” are usually called general subjects. These include: citizens of the Russian Federation, foreign citizens and stateless persons (see Article 2.6 of the Code of Administrative Offenses of the Russian Federation).

2. Special subjects of administrative responsibility are persons who are characterized by a number of specific characteristics that are directly specified in the legal norm and are mandatory for a given offense. Such entities, in particular, include:

• officials who are brought to administrative responsibility for failure to perform or improper performance of their official duties (Article 2.4 of the Code of Administrative Offenses of the Russian Federation);
• parents or other legal representatives of minors who are responsible for failure to fulfill their duties for the maintenance, education, training and protection of the rights of minors (Articles 5.35 and 20.22 of the Code of Administrative Offenses of the Russian Federation);
• owners (owners) of vehicles who have committed administrative offenses in the field of traffic and administrative offenses in the field of landscaping, provided for by the laws of the constituent entities of the Russian Federation, identified and recorded by special technical means operating automatically, having the functions of photography and filming, video recording, or photo means - and filming, video recording (Article 2.6.1 of the Code of Administrative Offenses of the Russian Federation);
• owners or other owners of land plots or other real estate objects who have committed administrative offenses in the field of landscaping, provided for by the laws of the constituent entities of the Russian Federation, in terms of maintenance, operation, movement, re-equipment or destruction of improvement objects in the event of recording these administrative offenses using special technical means operating automatically , having the functions of photography, filming, video recording, or means of photography, filming, video recording (Article 2.6.2 of the Code of Administrative Offenses of the Russian Federation).

3. Special subjects of administrative responsibility - persons who have full or partial immunity from administrative jurisdiction. Such persons include, in particular:

1) officials of the Russian Federation established by the Constitution of the Russian Federation and federal laws, performing certain state functions, in respect of whom special conditions apply for the application of measures to ensure proceedings in a case of an administrative offense and bringing to administrative responsibility (Part 2 of Article 1.4 of the Code of Administrative Offenses of the Russian Federation):

• registered candidates for the position of President of the Russian Federation (Article 42 of the Federal Law of January 10, 2003 N 19-FZ “On the Election of the President of the Russian Federation”);
• members of the Federation Council, deputies of the State Duma of the Federal Assembly of the Russian Federation (Article 19 of the Federal Law of May 8, 1994 N 3-FZ “On the status of a member of the Federation Council and the status of a deputy of the State Duma of the Federal Assembly of the Russian Federation”);
• registered candidates for deputies of the State Duma of the Federal Assembly of the Russian Federation (Article 47 of the Federal Law of May 18, 2005 N 51-FZ “On the election of deputies of the State Duma of the Federal Assembly of the Russian Federation”);
• registered candidates for deputies of a legislative (representative) body of state power of a constituent entity of the Russian Federation, a representative body of local self-government, a registered candidate for the position of an elected official of local self-government (Article 41 of the Federal Law of June 12, 2002 N 67-FZ “On Basic Electoral Guarantees” rights and rights to participate in a referendum of citizens of the Russian Federation”, hereinafter referred to as the Law on Basic Guarantees of Electoral Rights and the right to participate in a referendum of citizens of the Russian Federation);
• Commissioner for Human Rights in the Russian Federation (Article 12 of the Federal Constitutional Law of February 26, 1997 N 1-FKZ “On the Commissioner for Human Rights in the Russian Federation”);
• members of election commissions, referendum commissions with voting rights, chairmen of election commissions of constituent entities of the Russian Federation (Clause 18, Article 29 of the Law on Basic Guarantees of Electoral Rights and the Right to Participate in a Referendum of Citizens of the Russian Federation);
• judges (Article 122 of the Constitution of the Russian Federation, Article 15 of the Federal Constitutional Law of July 21, 1994 N 1-FKZ “On the Constitutional Court of the Russian Federation”, Article 16 of the Law of June 26, 1992 N 3132-1 “On the status of judges in the Russian Federation" Article 2 of the Federal Law of December 17, 1998 N 188-FZ "On Magistrates in the Russian Federation");
• prosecutors (Article 42 and paragraph 2 of Article 54 of the Federal Law of January 17, 1992 N 2202-1 “On the Prosecutor’s Office of the Russian Federation” (hereinafter referred to as the Law on the Prosecutor’s Office of the Russian Federation).

2) foreign citizens enjoying diplomatic immunity (Part 3 of Article 2.6 of the Code of Administrative Offenses of the Russian Federation). In accordance with the norms of international law, enshrined, in particular, in the Vienna Convention on Diplomatic Relations of 1961, the Vienna Convention on Consular Relations of 1963 and other international legal acts, these include heads of foreign diplomatic missions, members of diplomatic staff and members of their families;

3) military personnel, citizens called up for military training, and employees of internal affairs bodies, bodies and institutions of the penitentiary system, the State Fire Service, authorities for control over the circulation of narcotic drugs and psychotropic substances and customs authorities who are responsible for administrative offenses in accordance with regulatory legal acts regulating the procedure for serving in these bodies. The exception is the administrative offenses listed in Part 2 of Art. 2.5 of the Code of Administrative Offenses of the Russian Federation, for which they are responsible on a general basis;

4) minors. Part 2 of Article 2.3. The Code of Administrative Offenses of the Russian Federation established an optional basis for exemption from administrative liability for persons aged 16 to 18 years, i.e. minors, but who have reached the age of administrative responsibility. The condition for exemption from administrative liability for this category of subjects is the application by the commission for minors and the protection of their rights of other measures provided for by law as an alternative to administrative liability for a minor offender.

Principles, goals, functions and grounds of administrative responsibility

Principles of administrative responsibility

the following:

• principle of legality (a person brought to administrative responsibility cannot be subjected to administrative punishment and measures to ensure proceedings in a case of an administrative offense other than on the grounds and in the manner established by law. Application by an authorized body or official of administrative punishment and measures to ensure proceedings in a case of an administrative offense in connection with an administrative offense is carried out within the competence of the specified body or official in accordance with the law);
• individualization of responsibility (in the process of bringing to administrative responsibility it is necessary to examine the entire complex of factors defined by law, avoiding templates and stereotypes);
• responsibility of the subject of law only for his own misconduct (the subject who has committed an administrative offense is brought to administrative responsibility);
• liability only for guilty acts (a subject is subject to administrative liability only for those administrative offenses for which his guilt will be proven; liability without guilt is unacceptable);
• the principle of justice (consists in the fact that punishment should be proportionate to the crime);
• the principle of expediency (assumes compliance of the chosen measure of administrative and legal influence with the goals of administrative responsibility);
• the principle of humanism (the application of penalties should not humiliate human dignity, honor and other natural rights and freedoms of citizens);
• the principle of the presumption of innocence (a person is subject to administrative liability only for those administrative offenses in respect of which his guilt is established. A person against whom proceedings for an administrative offense are being conducted is considered innocent until his guilt is proven in the manner prescribed by the Code of Administrative Offenses, and established by a decision of a judge, body, or official who has considered the case that has entered into legal force. A person brought to administrative responsibility is not required to prove his innocence. Irremovable doubts about the guilt of a person brought to administrative responsibility are interpreted in favor of this person;
• the principle of timeliness (consists in the fact that responsibility for an administrative offense should occur as quickly as possible).

Goals

administrative responsibility:

1. protection of law and order;
2. educating citizens in the spirit of respect for the law;
3. restoration of social justice;
4. prevention of new offenses.

Functions

administrative responsibility:

1. punitive (punitive) - consists in the fact that administrative liability, on the one hand, is a means of punishing the offender, and on the other, a means of preventing the commission of new offenses both by the offender himself (private prevention) and by other subjects of law (general prevention);
2. educational – consists of a targeted influence on the consciousness of subjects of law to form a positive attitude towards the law;
3. compensatory – consists of restoring the property status of subjects of law violated as a result of the offense committed.

Regulatory basis

administrative responsibility - a system of legal norms that define the grounds and procedure for the implementation of administrative responsibility.

Factual basis

administrative liability – the commission by a person of an act containing elements of an administrative offense.

Procedural basis

administrative liability – the issuance, in the prescribed manner, by an authorized subject of a resolution (decision) on bringing to administrative liability.

Administrative and criminal liability for the same act

In Art. 2.1 of the Code of Administrative Offenses of the Russian Federation there is no provision that administrative liability for offenses arises if they do not entail criminal liability. However, this is stated in paragraph 7 of part 1 of Art. 24.5 of the Code of Administrative Offenses of the Russian Federation, according to which the presence of a resolution to initiate a criminal case on the same fact of commission of illegal actions (inaction) by a person against whom proceedings are being conducted for an administrative offense is a circumstance that excludes proceedings for an administrative offense.

In addition, in certain articles of the Special Part of the Code of Administrative Offenses of the Russian Federation there is a clause “if these actions do not contain a criminal offense” (for example, articles 5.16, 5.19, 5.20 of the Code of Administrative Offenses of the Russian Federation). Thus, in order to recognize an act as an administrative offense, it is necessary that it does not contain signs of a crime.

Thus, the qualification of the same act as a crime and an administrative offense is unacceptable. From the above, we can conclude that if the act contains signs of both a crime and an administrative offense, criminal rather than administrative liability has priority. This is the opinion of a number of authors due to the fact that the priority of criminal legislation over administrative legislation is explained by the absorption of all other types of illegality into criminal illegality, the absorption of the corpus delicti of an administrative offense into the corpus delicti.

At the same time, law enforcement practice does not always follow these theoretical principles and is based on the opposite principle. For example, in paragraph 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 12, 2002 No. 5 “On judicial practice in cases of theft, extortion and illegal trafficking of weapons, ammunition, explosives and explosive devices” (as amended on December 3, 2013 .) it is explained to the courts that “when an administrative offense committed by a person also contains signs of a criminal offense, the specified person can only be brought to administrative liability.”

Thus, the Supreme Court of the Russian Federation clearly formulated the rule on the priority of administrative law norms over criminal law norms. However, this rule for resolving conflicts formally has legal significance only for conflicts of rules regulating different types of liability for violating the rules for storing or carrying weapons, as well as for some other actions related to the illegal circulation of weapons. This rule can be extended to other norms of criminal and administrative legislation only by analogy, which, as is known, is unacceptable in criminal law.

Administrative responsibility in the Russian Federation

In some CIS countries, including the Russian Federation, there is a fairly large number of different administrative rules. These include, for example, traffic rules, fire safety, sanitary and epidemiological rules, rules of conduct in public places, trade rules, safety and labor protection rules, customs rules, fishing and hunting rules, environmental protection resources, rules of military registration, border regime, state of emergency and many many others.

For violations of these administrative rules, various types of liability are applied: criminal, disciplinary, administrative and material (for persons who are not subject to labor law). In addition, based on the norms of administrative law, measures of social influence, punishment and other preventive measures can be applied.

It is also worth considering that administrative responsibility provides for norms not only of administrative law, but also affects a number of other branches of law, in particular this includes such branches of law as labor and financial.

Administrative liability for one offense of both an official and a legal entity

According to Part 3 of Art. 2.1 of the Code of Administrative Offenses of the Russian Federation, the imposition of an administrative penalty on a legal entity does not relieve an individual from administrative liability for the same offense. Likewise, bringing an individual to administrative (criminal) liability does not relieve a legal entity from administrative liability for the same offense. In other words, for the same fact of identified violations in the activities of a legal entity, it is possible to bring to administrative responsibility an official (for example, a manager) of the corresponding enterprise or organization.

Example. The organization (society) by the Office of Rospotrebnadzor was brought to administrative responsibility under Part 2 of Article 14.8 of the Code of Administrative Offenses of the Russian Federation and was punished with an administrative fine. The Department found that, in violation of the provisions of Article 16 of the Law on the Protection of Consumer Rights, the contract with a consumer citizen included conditions that violate his rights.

In accordance with Part 2 of Art. 14.8 of the Code of Administrative Offenses of the Russian Federation, the inclusion in a contract of conditions that infringe on consumer rights established by legislation on the protection of consumer rights shall entail the imposition of an administrative fine on officials in the amount of one thousand to two thousand rubles.

Thus, by virtue of Part 3 of Art. 2.1 of the Code of Administrative Offenses of the Russian Federation, bringing a legal entity (organization) to administrative liability does not relieve an official (for example, the head of a given organization) from administrative liability for this offense.

Choosing an administrative penalty for a legal entity or official

Paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2005 N 5 “On some issues that arise for courts when applying the Code of the Russian Federation on Administrative Offenses” contains the following explanations:

“When determining the degree of responsibility of an official for committing an administrative offense that was the result of implementing a decision of a collegial body of a legal entity, it is necessary to find out whether the official took measures to draw the attention of the collegial body or administration to the impossibility of executing this decision due to the fact that it may lead to the commission of an administrative offense.

Since the Code of Administrative Offenses of the Russian Federation does not provide in this case any restrictions when imposing an administrative penalty, the judge has the right to apply to a legal entity or official any measure of punishment within the sanction of the relevant article, including the maximum, taking into account mitigating, aggravating and other circumstances, affecting the degree of responsibility of each of these persons.

Bringing an official to criminal liability cannot, by virtue of Part 3 of Article 2.1 of the Code of Administrative Offenses of the Russian Federation, serve as a basis for releasing a legal entity from administrative liability.”

Rights of an individual held accountable under the Code of Administrative Offenses of the Russian Federation

A citizen who is involved in administrative matters has the right to:

• don't incriminate yourself
• refuse to give an explanation or give an explanation
• get acquainted with all the case materials
• provide evidence, make motions
• use legal assistance from a lawyer
• exercise other procedural rights, including filing challenges, filing complaints, receiving court orders, etc.

Thus, the person involved can take advantage of all the rights that are granted to him by the Code of Administrative Offenses of the Russian Federation.

The procedure for bringing to administrative responsibility

Parts 1 - 1.3 art. 28.1 of the Code of Administrative Offenses of the Russian Federation contain a closed list of reasons for initiating a case of an administrative offense. One of them, for example, is the direct discovery by officials authorized to draw up protocols on administrative offenses of sufficient data indicating the existence of an administrative offense event.

In accordance with paragraph 1 of Art. 28.2 of the Code of Administrative Offenses of the Russian Federation, a protocol is drawn up on the commission of an administrative offense, with the exception of certain cases provided for by the Code of Administrative Offenses of the Russian Federation, specified in Art. 28.4, part 1, 3 and 4 art. 28.6 Code of Administrative Offenses of the Russian Federation).

According to paragraphs. 1 - 2 tbsp. 28.5 of the Code of Administrative Offenses of the Russian Federation, a protocol on an administrative offense is drawn up immediately after the discovery of an administrative offense. If additional clarification of the circumstances of the case or information about an individual or information about a legal entity is required in respect of which a case of an administrative offense is being initiated, a protocol on the administrative offense is drawn up within two days from the moment the administrative offense is discovered.

In some cases specified in Art. 28.7 of the Code of Administrative Offenses of the Russian Federation, an administrative investigation is underway.

In the case of an administrative investigation, a protocol on an administrative offense is drawn up upon completion of the investigation within the time limits provided for in Art. 28.7 Code of Administrative Offenses of the Russian Federation.

Next, the protocol (prosecutor's decision) on the administrative offense is sent to the judge, body, official authorized to consider the case of an administrative offense, within three days from the moment of drawing up the protocol (decision) on the administrative offense (Clause 1 of Article 28.8 of the Code of Administrative Offenses of the Russian Federation) .

Then the case of an administrative offense is considered, based on the results of which a decision can be made:

1. on the imposition of administrative punishment;
2. on termination of proceedings in a case of an administrative offense (clause 1 of Article 29.9 of the Code of Administrative Offenses of the Russian Federation).

Aggravating and mitigating circumstances in administrative liability

When assigning punishment, both mitigating and aggravating circumstances are taken into account.

The following are recognized as circumstances aggravating administrative liability:

1. Continuing illegal behavior despite the request of authorized persons to stop it;
2. Repeated commission of a homogeneous administrative offense, that is, the commission of a homogeneous administrative offense within 1 year from the date of entry into force of the resolution imposing an administrative penalty;
3. Involving a minor in committing an administrative offense;
4. Commitment of an administrative offense by a group of persons;
5. Committing an administrative offense during a natural disaster or other emergency circumstances;
6. Committing an administrative offense while intoxicated.

The following circumstances are recognized as mitigating administrative liability:

• repentance of the person who committed the administrative offense;
• voluntary cessation of unlawful behavior by a person who has committed an administrative offense;
• voluntary reporting by a person who has committed an administrative offense to the body authorized to carry out proceedings in the case of an administrative offense, about an administrative offense committed;
• provision by a person who has committed an administrative offense of assistance to the body authorized to carry out proceedings in the case of an administrative offense in establishing the circumstances to be established in the case of an administrative offense;
• prevention by a person who has committed an administrative offense of the harmful consequences of an administrative offense;
• voluntary compensation by the person who committed the administrative offense for the damage caused or voluntary elimination of the damage caused;
• voluntary execution, before a decision is made in a case of an administrative offense, by the person who committed the administrative offense, of an order to eliminate the violation;
• committing an administrative offense in a state of strong emotional excitement (affect) or due to a combination of difficult personal or family circumstances;
• commission of an administrative offense by a minor;
• commission of an administrative offense by a pregnant woman or a woman with a young child.

A judge or other person may recognize other circumstances as mitigating factors.

Extreme necessity excludes administrative proceedings

In accordance with Article 2.7 of the Code of Administrative Offenses of the Russian Federation, it is not an administrative offense for a person to cause harm to legally protected interests in a state of extreme necessity, that is, to eliminate a danger that directly threatens the personality and rights of a given person or other persons, as well as legally protected interests of society or the state, if this the danger could not be eliminated by other means and if the harm caused is less significant than the harm prevented.

The action of a person in a state of extreme necessity refers to circumstances that exclude proceedings in a case of an administrative offense. If the person who committed an administratively punishable act was in a state of extreme necessity, then proceedings in the case cannot be started, and what was started must be terminated on the basis of clause 3 of part 1 of Art. 24.5 Code of Administrative Offenses of the Russian Federation.

Composition of the offense and examples

The composition of an administrative offense can be material and formal. The first is characterized by the fact that the offender’s actions led to negative consequences. For example, a person was driving a vehicle while intoxicated and hit a pedestrian. The victim received serious injuries. In this case, the object of the offense is considered to be driving while intoxicated, the consequence is a collision with a pedestrian, and the result is causing physical harm to the victim.

Most often, offenders are brought to administrative liability, which has a formal structure. In this case, the person’s actions do not lead to negative consequences. Only the fact of committing an illegal act is taken into account.

Regardless of the type of offense, if it is present, the offender is held accountable. It should be noted that sanctions against the guilty person can be applied not only on the basis of a court decision, but also by other authorized bodies, for example, by decision of the senior district police officer.

Insanity is a basis for exemption from administrative liability

In accordance with Article 2.8 of the Code of Administrative Offenses of the Russian Federation, an individual who, at the time of committing illegal actions (inaction) was in a state of insanity, that is, could not realize the actual nature and illegality of his actions (inaction) or manage them due to a chronic mental disorder, is not subject to administrative liability , temporary mental disorder, dementia or other painful mental condition.

The state of insanity indicates the absence of one of the signs of an administrative offense that characterizes its subject. In this regard, a person who has committed an administratively punishable act in a state of insanity is not subject to administrative liability and the administrative proceedings must be terminated (Clause 2, Part 1, Article 24.5 of the Code of Administrative Offenses of the Russian Federation).

Lawyer for administrative charges in Yekaterinburg

Administrative matters are not as simple as they seem at first glance. In addition, this category of cases has its own specifics, so you should seek legal assistance from those lawyers who specialize in these cases.

In our Law Office “Katsailidi and Partners” there are lawyers, one of whose areas of activity is administrative law and, accordingly, issues of involvement in administrative matters.

By contacting our administrative lawyers, you can use the following services:

• receiving detailed advice on your issue related to involvement in administration
• studying the citizen’s documents related to your involvement in administration
• preparation of objections to involvement in administrative proceedings
• participation of a lawyer as your representative during the consideration of an administrative case
• preparation of a complaint against the act of bringing an individual to administrative responsibility
• collection, request for additional evidence of your innocence
• other legal assistance