Vol 16, No 4 (2019)
REFORM OF LEGISLATION ON ADMINISTRATIVE RESPONSIBILITY
442-453 398
Abstract
The article substantiates the insolvency of the position of Professor Yuri N. Starilov, declared at the All-Russian scientific-practical conference “Actual problems of administrative responsibility” (Omsk Law Academy, May 24, 2019) and reflected in his commentary on the concept of the new Code of the Russian Federation on Administrative Offenses (approved on June 5, 2019 at a meeting with the Chairman of the Government of the Russian Federation), on the prematureness of the reform of the Russian legislation on administrative offenses. The need for reform, in the opinion of the Author of the article, is due to the fact that the current legislation on administrative responsibility (the quality of which left much to be desired at the time of its adoption), which continues to steadily deteriorate as many laws are introduced into this legislation, from the instrument of maintaining law and order and ensuring of proper state management by the efforts of state power has become an instrument of excessive administrative pressure of the state on society, its institution and the individual person, the active use of which causes irritation and discontent among citizens, creates tension in their relations with the authorities. Judging by some of the areas of reform of the Code of the Russian Federation on Administrative Offenses defined by the concept, its developers are aware of the true reasons for the reform, which, for wellknown reasons, were not reflected in the document. In this regard, there is a certain chance that the new Code of the Russian Federation on Administrative Offenses will prove to be better than its predecessor, will be more consistent with the principles of a legal, democratic state, enshrined in the Constitution of the Russian Federation.
454-467 326
Abstract
The article is devoted to the analysis of current trends in the development of material and procedural norms of the legislation on administrative responsibility in the context of attempts to develop a new model of the code governing administrative responsibility in the Russian Federation. The complex of important problems existing in this field is investigated. The necessity of reforming the legislation on administrative offenses is substantiated, ideas and prospects for the development of a new codified act in the relevant legal industry are presented. The Authors of the article come to the conclusion that it is necessary to create the concept of an appropriate draft federal law, which allows for a balance between the constitutional principles for protecting the rights and freedoms of citizens and the simplicity and speed of the procedure of bringing perpetrators to administrative responsibility.
468-474 345
Abstract
The article is devoted to a systematic and comprehensive analysis of the provisions of the Concept of the new Code of the Russian Federation on Administrative Offenses approved by the Government of the Russian Federation. Each section of this document is analyzed in sequence. Dwelling on the basic provisions of the concept, the Author exposes them to critical analysis both from a scientific and from a practical point of view, identifies advantages and disadvantages and formulates proposals for improving the model of the future new federal law on administrative responsibility.
475-479 519
Abstract
The article outlines the role and characterizes the legal idea of leading scholars of modern Russia in the context of reforming the administrative-tort legislation. The Author describes the main positions of the author, defended in the course of his work as a member of the interdepartmental working group on the preparation of the Concept of the new Code of the Russian Federation on Administrative Offenses. It is proposed to create two independent codes - the material and procedural content, the transfer of the regulation of court cases considered today in the framework of the Code of the Russian Federation on Administrative Offenses to the legislation on administrative legal proceedings, as well as cases of administrative offenses considered in the framework of arbitration proceedings. Particularly emphasized is the idea that the legislation on administrative responsibility should be normatively and logically interconnected with the legislation on the control and supervisory activity of authorities and develop in parallel with it.
480-487 438
Abstract
The article deals with problems related to the development of the concept of the new Code of the Russian Federation on Administrative Offenses. Retrospective analysis of the development of the legislation on administrative offenses is conducted, a brief description of the legislation of foreign “Western traditional” countries, regulating similar issues, as well as the legislation of former Republics of the USSR - Belarus, Kazakhstan and Kyrgyzstan, which successfully reformed the national legislation on administrative offenses. The Author grades the draft of the Code of Administrative Responsibility and the Code of Administrative Offences submitted to the State Duma in 2014-2015, as well as the initiative concept of the new code, according to which plans are made to start drafting a new bill. According to the Author, the proposed concept needs to be finalized, it does not define the basic idea, purpose and subject of legal regulation, place in the system of the current legislation (especially connection with criminal legislation).
488-492 338
Abstract
The article comments on the draft Concept of the new Code of the Russian Federation on Administrative Responsibility. It is emphasized that the Concept maintains and develops traditional approaches to the legal regulation of relations that make up the legal institution of administrative responsibility traditional for domestic law. The need to adopt a new Code is due to changes in the international situation, the organization of socio-economic and socio-political life and the activities of the state, and the development of the economy after the adoption and entry into force of the current Code of the Russian Federation on Administrative Offenses. These changes had a significant impact on the existing legal system: many new legal institutions arose, and the appearance of entire branches of Russian law changed. For example, there appeared institutes of state and municipal procurement, state and municipal services, a contract system, and institutes in the field of state control (supervision) took shape legislatively and organizationally. There was an urgent need to reflect in the new Code the changed state of the system of public relations, the legal system, judicial and other law enforcement practices, the legal positions of the Constitutional Court of the Russian Federation, changes in legislation, in the organization of public authorities, in the system of federal relations.
493-497 306
Abstract
The article provides a comprehensive analysis of the compliance of the Constitution of the Russian Federation with the norms of the Arbitration Procedural Code of the Russian Federation and the Code of the Russian Federation on Administrative Offences. The conclusion is made about strict compliance with the constitutional provisions of the Arbitration procedural code of the Russian Federation, regulating the judicial procedure for resolving cases of administrative offenses, revealed inconsistence of the Code of the Russian Federation on Administrative Offenses articles 8, 10, 18, 23, 24, 29, 45, 46, 55, 118 of the Constitution of the Russian Federation. In order to ensure strict compliance of the Code of the Russian Federation on Administrative Offences with the norms of the Constitution of the Russian Federation, it is proposed to transform it into a system of correlating administrative procedural laws (the Code of the Russian Federation of Extrajudicial Proceedings in Cases of Administrative Offenses; the Federal law “On Administrative Control and Supervisory Proceedings (the Code of the Russian Federation on Control and Supervisory Proceedings); the Unified Code of Administrative Procedure of the Russian Federation.). The material norms of the Code of the Russian Federation on Administrative Offences are proposed to be separated with the Code of Administrative Responsibility.
498-505 530
Abstract
The article considers the problem of fiscal orientation of the Code of the Russian Federation on administrative offenses. An analysis of the practice of applying the Code’s norms shows that administrative jurisdictions often impose an administrative penalty such as a fine as part of their control and supervision activities. In modern Russia, administrative fines have become a source of significant non-tax revenue for the budgets of the country's budget system. This situation allows us to talk about the fiscal focus of the Code of the Russian Federation on administrative offenses, while the objectives of administrative punishment are private and general prevention. It is concluded that there is a need to defiscalize the new Code of the Russian Federation on administrative offenses.
506-511 313
Abstract
Some problems of modern administrative-tort law are considered. Attention is focused on a number of key problems of the current legislation on administrative offenses and on some specific proposals for its amendment. The possible consequences of the adoption of these proposals are analyzed. The need for a systematic approach to reforming existing legislation on administrative offenses is noted. It is proposed to develop a truly workable mechanism for determining the size of the fine imposed, which would make it possible to objectively take into account the social harmfulness of the misconduct, the real property situation of the offender, and other relevant circumstances that will serve the preventive purpose of sentencing to the maximum effect. It is concluded that it is necessary to systematize and thoroughly analyze the currently existing law enforcement problems and develop ways to solve them, taking into account the concept of the new Code of the Russian Federation on Administrative Offenses.
512-517 390
Abstract
The article discusses the issues of historical validity of creating a collective subject of law in the form of a legal entity construction. The dual nature of a legal entity as a legal fiction and as a subject of legal relations is shown, which also determines the specificity of the liability of a legal entity and the grounds for its occurrence. This is especially true for such a reason as the presence of guilt, because by virtue of the artificial nature of the legal structure of a legal entity, the rules for determining its guilt differ from the rules applicable to an individual. The risks of ineffective punishment of individuals hiding behind the "screen" of an artificial subject of law are analyzed; use of a legal entity as an instrument for committing unlawful acts by individuals. A comparison is made of the features of holding a legal entity liable for committing acts in civil and public law spheres, as well as measures of this responsibility. The ideas on the possibility of a criminal procedure investigation of offenses of legal entities are considered, on the categorization of types of administrative responsibility and the amount of administrative fines in relation to legal entities.
ADMINISTRATIVE RESPONSIBILITY AND ITS APPLICATION
518-524 829
Abstract
State coercion is an important and necessary means of maintaining law and order. But at the same time, it is a problematic sphere of relations between the authorities and society. So, the legislator is faced with the task of normative regulation of this sphere of relations. This becomes especially relevant in the preparation of a fundamentally new normative legal act regulating public relations for the protection (including compulsory) of an individual, society and the state from offenses that belong to the category of administrative. The article examines the legal nature of administrative coercion, implemented in the field of public administration. Critical analysis has been made of certain coercive measures enshrined in the legislation on administrative offenses, namely, measures of procedural support and measures of administrative punishment. The conclusion is formulated on the need to minimize the competence of judges in considering cases of administrative offenses. The inadmissibility of administrative liability of legal entities is substantiated. The article argues the feasibility of harmonizing the judicial and administrative order of applying administrative penalties based on the investigative type of jurisdictional law-enforcement process.
525-529 540
Abstract
The article is devoted to the analysis of the concept of “administrative offense” and its relationship with a criminal offense. The article discusses the norms of administrative-tort legislation of the Soviet period, indicating the peculiarities of terminology in the definition of the concept of an administrative offense (misconduct). A retrospective study of the norms of administrative-tort legislation is carried out through a comparative legal analysis of the norms of the Code on Administrative Offenses of the RSFSR and the Code of the Russian Federation on Administrative Offenses. The opinions of administrative scientists (Y. M. Kozlova, M. S. Studenikina,P. Shergin and others) about the nature of an administrative offense are investigated. The Author pays special attention to the idea of introducing a novel of criminal misconduct as an independent type of legal responsibility. The Author discusses, offering a reasoned point of view regarding the distinction between administrative offense, criminal misconduct and crime. A comparative analysis of the signs of an administrative offense and criminal misconduct is carried out with the most important characteristics of these phenomena highlighted. Based on the study, the Author substantiates the position regarding the existence of the institution of administrative responsibility, taking into account the novels proposed in science.
530-537 404
Abstract
The article is devoted to the description of administrative tort. In essence, it consists in determining the act as tort, i.e., in the legal plan, prohibited and punishable. In the state-normative understanding, administrative tort is a method of implementing the administrative-tort policy of the state, consisting in the legal definition (fixing) of an act (action, inaction) as an administrative offense and the establishment of punishment under the threat of its commission. On the content side, administrative tort is a sequential process of determining the existence of system-forming objective criteria as an administrative offense as an administrative offense, which ends when they are actually established by the adoption by the legislative body of a justified decision on the corresponding administrative-tort ban. The resumed work on the preparation of a new edition of the Code of the Russian Federation on Administrative Offenses involves the refinement of conceptual approaches to the formation of administrative-tort rules. In this regard, the development of the main provisions of administrative tort delinquency seems relevant and significant for determining the main directions of further improvement of the legislation on administrative offenses.
538-544 353
Abstract
Involvement in administrative, disciplinary, material types of responsibility in administrative law is classified as an administrative coercion. The Author proposes to expand the range of administrative-tort legal relations, including not only legal relations related to the commission of administrative offenses, but also legal relations related to the commission of administrative-disciplinary offenses. At the same time, administrative offenses and administrative and disciplinary offenses should be combined with the concept of “administrative tort”. The work attempts to correlate administrative torts and offenses committed in the process of different types of legal proceedings, it is also concluded that tort procedural relationships are part of administrative procedural relationships, and not administrative tort ones. The Author comes to the conclusion that the subjects of administrative tort (both administrative offenses and administrative and disciplinary offenses) can be legal entities.
545-549 417
Abstract
Some problems of modern administrative-tort and criminal legislation and law are considered. On the positive side, the sequence of the legislator is assessed regarding the delimitation of the norms of criminal and administrative responsibility. Attention is focused on the heterogeneity of administrative offenses due to the presence of various bodies of administrative jurisdiction, the establishment of different statutes of limitations, the existence of a comprehensive system of administrative penalties. The necessity of categorizing administrative offenses, the purpose of which is to differentiate administrative responsibility, is noted. The main criterion for highlighting gross administrative offenses has been named, which should be a strict form and (or) a large amount of sanctions applied. It is concluded that any gross administrative offense should be considered a socially dangerous administrative offense. The significance of the official legalization of the concepts of gross (socially dangerous) administrative offense and criminal misconduct is revealed.
ADMINISTRATIVE RESPONSIBILITY FOR SPECIFIC TYPES OF OFFENCES
550-557 489
Abstract
It is known that the legal regulation of matters related to liability in education has been characterized by some gaps for a long time. However, enhancing the efficiency of the education system and the quality of services provided by educational institutions is strongly dependent on the responsible attitude of all participants in educational relations to the compliance with and enforcement of regulations applying to this area. In education sector, the institution of liability must be developed, with an efficient mechanism of its implementation. Current education legislation based on the system-forming Federal Law No. 273-FZ “On Education in the Russian Federation” dated December 29, 2012 still does not contain the necessary rules or procedures; the mechanism proposed, i. e. a dispute settlement council, does not actually work. It appears necessary to develop the provisions of administrative legislation regarding the sets of offence elements and penalties in education.
558-562 481
Abstract
Relations in economic areas is a special sphere of social relations, which is associated with the phenomenon of ownership and which are regulated by civil, budget, tax, customs legislation and others. The federal laws on budgetary, tax, and customs relations adopted at the turn of the 20th-21st centuries enshrined the corresponding types of responsibility that operated in parallel with the administrative one. The variety of types of responsibility for offenses in economic areas made it difficult for law enforcement practice. The work analyze the basis of responsibility in economic areas, to explore the legal nature of liability for violation of legislation on taxes and fees and show its similarity to the legal nature of administrative responsibility. It is proved that the only type of responsibility for offenses in economic areas (in the field of finance, budget, taxes, customs, banking, etc.) is administrative responsibility. Identified the legal nature of liability for violations of legislation on taxes and fees. A proposal was made to remove from the Tax Code of the Russian Federation norms on liability for violations of legislation on taxes and fees and to introduce Chapter 15.1 into the Code of the Russian Federation on Administrative Offenses, and at the same time to remove the elements of violation of legislation on taxes and fees from Chapter 15.1 of the Code of the Russian Federation on Administrative Offences.
563-567 449
Abstract
The article discusses the prospects and current trends of administrative responsibility in the field of road safety. The priorities of the state policy in the field of road safety are defined in the Strategy of road safety in the Russian Federation for 2018-2024, which, among other things, notes the need to improve legal liability for offenses in this area. Based on the analysis of a number of initiatives put forward to date by the subjects of lawmaking to strengthen administrative responsibility for offenses in the field of traffic, it can be argued that their essence is to constantly increase sanctions and the introduction of new compositions of offenses against drivers of vehicles. At the same time, other road users, as well as legal entities whose activities have an impact on road safety, are not a priority object of impact, largely due to the high latency of their offenses. Based on the analysis and arguments, the following conclusions: 1) the most effective way of differentiation and individualization of administrative responsibility of drivers of vehicles; 2) it is necessary to improve the mechanisms of detection and suppression of administrative offenses in the field of road safety committed by legal entities, as well as certain categories of road users (pedestrians, passengers).
568-573 296
Abstract
The article analyzes the administrative responsibility provided for violation of the quarantine restrictions in the light of practical experience in the implementation of quarantine measures in the territory of Omsk region in the period of emergency, imposed upon discovery in the region of dangerous viral diseases of animals - African swine fever. The Authors propose to expand the powers of police officers to draw up protocols on administrative offenses under articles 10.6, 10.7, 10.8 of the Code of the Russian Federation on Administrative Offences, also substantiates the need to tighten administrative responsibility for disobeying a legal order or request of a police officer in connection with the performance of his duties during the emergency.
ISSN 2658-7602 (Print)
ISSN 2658-7610 (Online)
ISSN 2658-7610 (Online)