Date on which the Disqualification Order was issued by the Judicial Authority. Some problems in the execution of a court order (decision) on disqualification. Disqualification order

"Salary", 2007, N 8

Recently, administrative punishment in the form of disqualification has become widespread. What is disqualification and what does it threaten? You will find answers to this and many other questions in the article.

Disqualification as a type of administrative responsibility

What is administrative responsibility? This is the type of legal liability that applies to the person who committed the offense. The basis for administrative responsibility is the presence of an administrative offense, which, according to Art. 2.1 of the Code of Administrative Offenses of the Russian Federation is an unlawful guilty act (inaction) of an individual or legal entity.

Who can be brought to administrative responsibility?

In addition to citizens and organizations, an official may be brought to administrative responsibility. His responsibility arises in the event of failure to fulfill his official duties.

Who belongs to officials in relation to administrative offenses is defined in Art. 2.4 of the Administrative Code of the Russian Federation. These are managers, chief accountants (accountants), individual entrepreneurs and other persons performing organizational and administrative or administrative functions in organizations (regardless of the form of ownership).

Various types of administrative penalties are applied to officials, but the most serious is disqualification. This type of liability was first provided for in the new Code of Administrative Offenses of the Russian Federation, which entered into force on July 1, 2002.

What is disqualification?

The definition of disqualification is given in Art. 3.11 of the Administrative Code of the Russian Federation is the deprivation of an individual of the following rights:

• hold managerial positions in the executive management body of a legal entity;
• be a member of the board of directors (supervisory board);
• conduct business activities to manage a legal entity;
• manage a legal entity.

Grounds for disqualification

The list of violations for which you can be disqualified is given in the table on p. 133.

Reason for disqualification	Base
Violation of legislation on labor and protection labor by a person previously subjected to administrative punishment for similar administrative offense	Part 2 of Art. 5.27 Administrative Code of the Russian Federation
Illegal actions to obtain and (or) dissemination of information constituting credit history	Article 5.53 of the Administrative Code RF
Fictitious or deliberate bankruptcy. This is a knowingly false announcement the head of the organization insolvency, including its appeal to the Supreme Arbitration Court of the Russian Federation with a statement about declared bankrupt if he has ability to meet requirements creditors in full. The punishment is also provided for willful creation or increase in insolvency	Article 14.12 of the Administrative Code RF
Misconduct in bankruptcy. Various formulations are provided offenses such as concealment of property or property obligations, failure obligations to apply for recognition a legal entity is bankrupt in an arbitration court and etc.	Article 14.13 of the Administrative Code RF
Submission to the body carrying out state registration of legal entities, documents containing deliberately false intelligence	Part 4 of Art. 14.25 Administrative Code of the Russian Federation
Conclusion restricting competition agreements or implementation of limiting competition of concerted action	Article 14.32 of the Administrative Code RF
Unfair competition, expressed in introduction into circulation of goods with illegal using the results of intellectual activities and equivalent funds individualization of a legal entity, funds individualization of products, works, services	Article 14.33 of the Administrative Code RF
Failure to comply in time with a legal order (decisions, representations, decisions) body (official) carrying out state supervision	Article 19.5 of the Administrative Code RF
Illegal actions to obtain or submitting a credit report or information constituting a credit history and included in the credit report	Article 14.29 of the Administrative Code RF

Let us consider in detail Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, which establishes responsibility for violations of labor legislation and labor protection.

What is considered a similar violation for which you can be disqualified? The Code of Administrative Offenses of the Russian Federation does not disclose this concept. For example, representatives of the labor inspectorate may consider similar violations such as non-payment of sick leave certificates and the absence of an employment contract with a part-time job.

However, the judges do not support the overseers. This is evidenced by the Resolution of the Supreme Court of the Russian Federation of February 28, 2006 N 59-ad06-1. The judges referred to paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 24, 2005 N 5. It says that a similar offense (in part 2 of article 5.27 of the Code of Administrative Offenses of the Russian Federation) should be understood as the commission by an official of the same, and not any violation of the law about labor and labor protection. For example, the first time an official did not make a payment upon dismissal of one employee, and later - upon dismissal of another employee.

Description of the procedure

To impose a penalty in the form of disqualification, certain rules must be followed.

Reasons for initiating a case on an administrative offense

The question of disqualification does not just arise. There are several reasons for initiating an administrative offense case. They are listed in Part 1 of Art. 28.1 of the Administrative Code of the Russian Federation.

Firstly, if the officials authorized to draw up protocols found data that indicate the existence of an administrative offense. For example, officials of the Federal Labor Inspectorate and the state labor inspectorates subordinate to it have the right to draw up protocols for violation of labor and labor protection legislation. This is stated in paragraphs. 16 p. 2 art. 28.3 of the Administrative Code of the Russian Federation.

Secondly, when materials are received from law enforcement agencies, as well as from other state bodies, local authorities, from public associations, if such materials contain data that indicate the presence of an administrative offense.

The third reason for initiating an administrative offense case is messages and statements of individuals and legal entities, as well as messages in the media. An exception to this rule is administrative offenses provided for in Part 2 of Art. 5.27 of the Administrative Code of the Russian Federation.

Protocol on an administrative offense

The main document on the basis of which a decision is made in a case of administrative offenses is a protocol. It records information about the committed offense and the data of the person against whom the administrative offense case has been initiated. The protocol is drawn up in accordance with Art. 28.2 of the Administrative Code of the Russian Federation. In particular, it must indicate:

• date and place of compilation;
• position, surname and initials of the person who drew up the protocol, information about the person against whom the administrative offense case was initiated;
• surnames, first names, patronymics, addresses of the place of residence of witnesses and victims, if there are witnesses and victims;
• place, time and event of an administrative offense.

The official who has drawn up the protocol shall sign the protocol. Also, the legal representative of the legal entity in respect of which the case of an administrative offense has been initiated must put his signature. In case of refusal, a corresponding entry is made in the protocol.

Court decision on disqualification

Only a court can impose an administrative penalty in the form of disqualification. This is stated in Art. 3.11 of the Administrative Code of the Russian Federation.

The person who drew up the protocol on the administrative offense is obliged to send it to the judge within 24 hours (part 1 of article 28.8 of the Administrative Code of the Russian Federation). Based on the results of considering a case on an administrative offense, the judge shall issue a resolution (decision) on the imposition of an administrative penalty or on the termination of proceedings in the case of an administrative offense.

Part 3 of Art. 4.5 of the Administrative Code of the Russian Federation states that an official can be disqualified no later than one year from the date of an administrative offense, and in case of a continuing administrative offense - no later than one year from the date of its discovery. For example, in the event of a violation of labor and labor protection legislation, a continuing violation is considered to be the continuous implementation of a single corpus delicti of a wrongful act. For example, non-payment of compensation for unused vacation is associated with long-term failure by the organization to fulfill its responsibilities, therefore, such a violation is continuing. The fulfillment of this obligation by the employer terminates the offense.

Execution of a court decision on disqualification

Disqualification is established for a period from six months to three years (part 2 of article 3.11 of the Administrative Code of the Russian Federation). A court order on disqualification, which has entered into legal force, obliges the employer to terminate the employment contract with the disqualified person. This is stated in paragraph 8 of Art. 83 of the Labor Code. If the employer does not comply with the court order and does not terminate the employment contract, he will face criminal liability in accordance with Art. 315 of the Criminal Code. Punishment awaits the disqualified person himself in case of non-execution of the court order. If such an employee, during the period of ineligibility, is engaged in activities of managing a legal entity, this entails the imposition of an administrative fine in the amount of 5,000 rubles. according to Part 1 of Art. 14.23 of the Code of Administrative Offenses.

Disqualified persons register

According to paragraph 2 of Art. 32.11 of the Code of Administrative Offenses of the Russian Federation, a company, before hiring a manager, must request information from the Ministry of Internal Affairs of Russia about whether a candidate for a vacant position is a disqualified person. Such an opportunity appeared on April 1, 2007 (Order of the Ministry of Internal Affairs of Russia of November 22, 2006 N 957). The register of disqualified persons is formed and maintained by the Ministry of Internal Affairs of Russia and the Ministry of Internal Affairs, directorates (main directorates) of the internal affairs of the constituent entities of the Russian Federation. Obtaining information from the register will cost 1 minimum wage (100 rubles). This is stated in clause 4 of the Decree of the Government of the Russian Federation of 11.11.2002 N 805 on the formation and maintenance of the register of disqualified persons.

Note that a legal entity for concluding a contract with a disqualified person may be subject to an administrative fine of up to RUB 100,000. (the basis is part 2 of article 14.23 of the Administrative Code of the Russian Federation).

What information is stored in the registry

The register consists of decisions of judges on the disqualification of officials coming from courts of general jurisdiction and arbitration courts. The information contained in the register is public.

• surname, name, patronymic, year and place of birth, place of residence;
• in which organization and in what position the specified person worked at the time of the offense;
• the date of the offense, its essence and qualifications (the article of the Code of Administrative Offenses of the Russian Federation is indicated);
• period of ineligibility;
• the start and expiry dates of the period of ineligibility.

After entering the information about the disqualified person into the register, within ten days, the Ministry of Internal Affairs sends information about him to those federal executive authorities, whose officials, in accordance with the Code of Administrative Offenses of the Russian Federation, are authorized to draw up protocols on administrative offenses. In particular, the Federal Labor Inspectorate, the internal affairs bodies (police), the Federal Tax Service.

The deadline for the provision of information contained in the register is five days from the date of receipt of the corresponding request.

Information from the register will help you avoid adverse tax consequences

The information contained in the register of disqualified persons will be important for all organizations, both for checking their potential managers and for the heads of counterparty organizations. And it's not just about the penalties established by the Code of Administrative Offenses of the Russian Federation. If tax inspectors find agreements signed by CEOs, the period of ineligibility of which has not expired, the organization may face problems related to the confirmation of the validity of the application of tax deductions for VAT. Because in this case the invoice will be signed by an unauthorized person.

Tax authorities may question the veracity of company data and deny the validity of income tax expense. In both cases, the fact that the taxpayer did not show a sufficient degree of caution in choosing a counterparty, although he should and had the opportunity to do so, will be an argument of the tax authorities in court. In addition, transactions may be invalidated due to being signed by an unauthorized person. The consequences of such actions can be extremely unfavorable.

R. E. Dozorov

Legal expert in taxes

consulting group

"Rodichev & Partners"

One of the types of administrative punishment is the disqualification of an employee (subparagraph 8 of clause 1 of article 3.2 of the Administrative Code of the Russian Federation). Disqualification consists in depriving an individual of the right to hold managerial positions in the executive body of a legal entity, to be a member of the board of directors (supervisory board), to carry out entrepreneurial activities in managing a legal entity, and also to manage an organization in other cases (Article 3.11 of the Code of Administrative Offenses of the Russian Federation). Disqualification refers to the number of continuing administrative punishments and is established for a period of 6 months to 3 years. At the same time, only judges have the right to impose this type of administrative punishment. For administrative offenses entailing disqualification, a person can be held liable no later than one year from the date the offense was committed, and in the case of a continuing administrative offense - one year from the date of its discovery (Clause 3, Article 4.5 of the Administrative Code of the Russian Federation). For what offenses is the disqualification of an official provided for? See Table 1.

Litigation and arbitration practice

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The onset of administrative liability under Article 5.27 of the Code of Administrative Offenses is not made dependent on whether similar labor and labor protection offenses were committed by an official at the same enterprise or while working in different organizations (Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the third quarter of 2006, approved by the resolution of the Presidium of the Supreme Court of November 29, 2006).

In turn, a similar offense specified in part 2 of Article 5.27 of the Code of Administrative Offenses should be understood as committing the same, and not any violation of labor and labor protection legislation (clause 17 of the resolution of the Plenum of the Supreme Court of March 24, 2005, No. 5) ...

Disqualification order

After the entry into force of the decision on disqualification must be executed immediately, by the termination of the person brought to administrative responsibility, the management of the legal entity (Article 32.11 of the Code of Administrative Offenses of the Russian Federation).

In this case, disqualification is the basis for the termination of the employment contract due to circumstances beyond the control of the parties (clause 8 of article 83 of the Labor Code of the Russian Federation). See Example 1 for a fill pattern.

In this case, dismissal is allowed if it is impossible to transfer this employee, with his written consent, to another job available to the employer, which he can perform taking into account his state of health (Article 83 of the Labor Code of the Russian Federation). The fact is that, according to the law, a disqualified person is not completely deprived of the right to engage in entrepreneurial activity.

Recruitment

When concluding an agreement for the implementation of activities to manage a legal entity, it is necessary to request information on the presence of disqualification of this individual in the body that maintains the register of disqualified persons (clause 2 of article 32.11 of the Code of Administrative Offenses of the Russian Federation).

In turn, the conclusion of an employment contract in violation of a decision of a judge, body, official authorized to consider cases of disqualification is itself a basis for dismissal (Article 84 of the Labor Code of the Russian Federation). In this case, the basis for terminating the employment contract is a violation of the rules for concluding an employment contract established by the Labor Code (subparagraph 11 of article 77 of the Labor Code of the Russian Federation) (see Example 2).

Please note that the employment contract is terminated if it is impossible to transfer the employee, with his written consent, to another job available to the employer, which the employee can perform taking into account his state of health (Article 84 of the Labor Code of the Russian Federation).

Disqualified persons register

Interested parties have the right to receive information for a fee from the specified register in the form of extracts about specific individuals (clause 3 of article 32.11 of the Administrative Code of the Russian Federation). The term for providing information is 5 days from the date of receipt by the federal body of the corresponding request (clause 7 of the Regulation on the formation and maintenance of the register of disqualified persons, approved by the Government Decree of 11.11.2002, No. 805, hereinafter - Regulation No. 805). For an example of filling out a request, see Example 3. Note that the request form was approved by the order of the Ministry of Internal Affairs in this form, and lawyers do not recommend changing it in order to avoid refusal to provide information (Appendix No. 7 to the Instruction on the procedure for providing information about disqualified persons, approved by order of the Ministry of Internal Affairs of the Russian Federation of November 22, 2006 No. No. 957).

The authorized bodies responsible for the formation and maintenance of the register of disqualified persons are the Ministry of Internal Affairs of Russia and the Ministry of Internal Affairs, the Internal Affairs Directorate (GUVD) for the constituent entities of the Russian Federation (clause 2 of Regulation No. 805). The fee for the information provided from the register is 100 rubles (clause 4 of the Government Decree of 11.11.2002, No. 805). At the same time, information about themselves is provided to state authorities, local self-government bodies, as well as citizens free of charge (clause 4 of the Instruction).

Depending on the procedure for obtaining information of the certificate specified in the request (clause 25 of the instructions on the procedure for providing information on disqualified persons, approved by order of the Ministry of Internal Affairs of Russia dated November 22, 2006, No. 957 - hereinafter the Instruction):

• issued to applicants at a personal reception by employees who receive citizens, against signature upon presentation of a passport or to a person authorized by the applicant upon presentation of a power of attorney;
• sent by mail to the internal affairs body at the place of appeal for delivery to the applicant or his authorized representative.

The specified request shall be accompanied by notarized copies of documents or extracts from documents confirming the powers of the person who made the request, as well as a receipt of payment. In this case, requests submitted in violation of the specified requirements are returned without execution (clause 21 of the Instructions).

The register indicates the following information about the disqualified person (clause 3 of Regulation No. 805):

• surname, name, patronymic, date and place of birth, place of residence;
• in which organization and in what position the specified person worked at the time of the offense;
• the date of the offense, its essence and qualifications, the name of the body that drew up the protocol on the administrative offense;
• period of ineligibility;
• the start and expiry dates of the period of ineligibility;
• the name of the court that issued the disqualification order;
• information about the revision of the order of disqualification;
• grounds for excluding disqualified persons from the register;
• date of exclusion from the register of disqualified persons.

Upon the expiration of the period of ineligibility or pursuant to an effective judicial act on the cancellation of the order on ineligibility, these persons are excluded from the register (clause 9 of Regulation No. 805).

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The implementation by a disqualified person of activities to manage an organization entails the imposition of an administrative fine in the amount of 5,000 rubles (clause 1 of article 14.23 of the Administrative Code). In turn, a legal entity is punished for concluding an agreement with this person for the management of an organization, as well as for not applying the consequences of its termination (the fine is up to 100,000 rubles).

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CONCEPT OF DISQUALIFICATION

Disqualification as a new type of administrative punishment was established by the Code of Administrative Offenses of the Russian Federation (Code of Administrative Offenses of the Russian Federation), which entered into force on July 1, 2002. In accordance with Art. 3.11 of the Code of Administrative Offenses of the Russian Federation, disqualification consists in depriving an individual of the right to hold managerial positions in the executive body of a legal entity, to be a member of the board of directors (supervisory board), to carry out entrepreneurial activities in managing a legal entity, and also to manage a legal entity in other cases provided for by the legislation of the Russian Federation ...

According to paragraph 2 of Art. 3.11 of the Administrative Code of the Russian Federation, disqualification is established by the court for a period of six months to three years.

TO WHOM DISQUALIFICATION MAY BE APPLIED

In accordance with paragraph 3 of Art. 3.11 of the Code of Administrative Offenses of the Russian Federation, disqualification can be applied to persons performing organizational and administrative or administrative functions in the body of a legal entity, to members of the board of directors, as well as to persons engaged in entrepreneurial activities without forming a legal entity, including arbitration managers.

This means that disqualification can be applied to individuals authorized as an official, acting in commercial and non-commercial organizations, as well as to individual entrepreneurs, including those exercising the powers of arbitration managers.

Thus, disqualifications may be subject to:

· officials performing management functions in commercial and non-profit organizations (director, general director, president, vice president, their deputies);

· individual entrepreneurs;

· arbitration managers (persons appointed by the arbitration court to conduct bankruptcy procedures and exercise other powers established by Federal Law No. 127-FZ of October 26, 2002 "On Insolvency (Bankruptcy)").

With regard to individual entrepreneurs, we consider it necessary to indicate the following. In accordance with Art. 3.11 of the Code of Administrative Offenses of the Russian Federation, disqualification can be applied to persons engaged in entrepreneurial activity without forming a legal entity.

According to Art. 2.4 of the Code of Administrative Offenses of the Russian Federation, an official is subject to administrative responsibility in the event that he commits an administrative offense in connection with non-performance or improper performance of his official duties. At the same time, it was established that persons engaged in entrepreneurial activities without forming a legal entity bear administrative responsibility as officials, unless otherwise provided by law.

At the same time, questions arise regarding the application of the norms of the Code of Administrative Offenses of the Russian Federation on disqualification to individual entrepreneurs. In particular, an individual entrepreneur is suspended from performing the functions specified in Art. 3.11 of the Administrative Code of the Russian Federation. But he does not always hold a position in the executive body of a legal entity or manage it as a manager. He may simply be the owner of the "business" and at the same time violate the requirements of labor legislation. This issue of the Code of Administrative Offenses of the Russian Federation is not sufficiently regulated.

ADMINISTRATIVE OFFENSES FOR WHICH THE CAO RF ESTABLISHES DISQUALIFICATION AS AN ADMINISTRATIVE PUNISHMENT

Disqualification can be applied by a court for committing the following administrative offenses provided for by the Code of Administrative Offenses of the Russian Federation:

· repeated violation of labor and labor protection legislation by a person previously subjected to an administrative penalty for a similar administrative offense (part 2 of article 5.27);

· fictitious bankruptcy (part 1 of article 14.12);

· deliberate bankruptcy (part 2 of article 14.12);

· concealment of property or property obligations, information about property, its size, location or other information about property, transfer of property to another possession, alienation or destruction of property, as well as concealment, destruction, falsification of accounting and other accounting documents, if these actions are performed during bankruptcy or in anticipation of bankruptcy (part 1 of article 14.13);

· failure to fulfill the obligation to file an application for declaring a legal entity bankrupt to an arbitration court in cases stipulated by the legislation on insolvency (bankruptcy) (part 2 of article 14.13);

· failure to comply with the rules applied during the period of observation, external management, bankruptcy proceedings, the conclusion and execution of an amicable agreement and other bankruptcy procedures provided for by the legislation on insolvency (bankruptcy) (part 3 of article 14.13);

· improper management of a legal entity (Art. 14.21);

· making transactions and other actions that go beyond the established powers (Article 14.22).

PECULIARITIES OF THE PROCEDURE FOR APPLICATION OF DISQUALIFICATION TO THE GENERAL DIRECTOR OF A COMMERCIAL ORGANIZATION HAVING REPEATED TO VIOLATE LABOR LEGISLATION

In accordance with parts 1 and 2 of Art. 28.3 of the Administrative Code of the Russian Federation, officials of the bodies authorized to consider cases of administrative offenses in accordance with Ch. 23 of the Administrative Code of the Russian Federation, and officials of federal executive bodies, as well as other state bodies in accordance with the tasks and functions assigned to them by federal laws or regulatory legal acts of the President of the Russian Federation or the Government of the Russian Federation.

According to Art. 356 of the Labor Code of the Russian Federation, federal labor inspectorates exercise state supervision and control over the observance in organizations of labor legislation and other regulatory legal acts containing labor law norms, through inspections, surveys, issuing binding orders to eliminate violations, bringing the perpetrators to justice in accordance with federal law.

Grounds for initiating an administrative case against the general director

According to clause 1 of part 1 of Art. 28.1 of the Administrative Code of the Russian Federation, one of the grounds for initiating a case is the direct discovery by officials authorized to draw up protocols on administrative offenses of sufficient data indicating the presence of an event of an administrative offense.

Article 357 of the Labor Code of the Russian Federation establishes that legal labor inspectors have the right to visit without hindrance at any time of the day in the presence of certificates of the established form in order to verify the organization of all organizational and legal forms and forms of ownership and, accordingly, request from employers and their representatives and receive documents from them free of charge. , explanations, information necessary to perform supervisory and control functions.

According to paragraph 1 of Art. 3.11 of the Code of Administrative Offenses of the Russian Federation, an administrative penalty in the form of disqualification is imposed by a judge. With regard to the CEO, this means that the decision is made by a judge of general jurisdiction, in contrast, for example, to bankruptcy commissioners, where the decision is made by a judge of an arbitration court.

Execution of a court decision on bringing the general director to administrative responsibility in the form of disqualification

In accordance with Art. 32.11 of the Administrative Code of the Russian Federation, a person brought to administrative responsibility must immediately execute the order on disqualification and stop managing the legal entity. From the literal interpretation of this provision, it follows that the employer must immediately terminate the employment contract (contract) with the disqualified person.

In this regard, attention should be paid to the procedure for dismissing the head of an organization subject to disqualification. In the Labor Code of the Russian Federation today there is no reason for dismissal, literally formulating this situation. In the draft amendments to the Labor Code of the Russian Federation, it is planned to supplement Part 1 of Art. 83 with a new clause 8 as follows: "8) disqualification of an employee in accordance with federal law, entailing the impossibility of fulfilling the employee's labor duties." However, these changes are still awaiting their adoption by the State Duma. In the meantime, in such cases, paragraph 14 of Art. 81 of the Labor Code of the Russian Federation, which provides that an employment contract can be terminated by the employer in the cases established by the Labor Code of the Russian Federation and other federal laws, in particular, of course, and the Code of Administrative Offenses. Thus, it is on this basis - under paragraph 14 of Art. 81 of the Labor Code of the Russian Federation and the disqualified CEO must be dismissed.

Also, a question may arise regarding the immediate execution of a court decision in the event of an appeal by a disqualified person against a court decision, since the right to appeal is guaranteed by law to a person brought to administrative responsibility.

According to the Code of Administrative Offenses of the Russian Federation, a court decision can be appealed within ten days. If no complaint has been lodged within this period, the decision comes into force and is subject to immediate execution. If the complaint is promptly submitted and accepted for consideration, the execution of the decision is postponed until the higher court makes a decision on the complaint.

Legal consequences for a disqualified person

The main legal consequences of the disqualification of an individual are the termination of the contract with the disqualified person for the implementation of activities to manage a legal entity and the prohibition for a certain period of time to conclude a new contract for the implementation of such activities.

Attention should be paid to the sanctions provided by law in case of violation by the disqualified person of the above prohibition. In accordance with Part 1 of Art. 14.23 of the Code of Administrative Offenses of the Russian Federation, the performance by a disqualified person during the period of ineligibility of managing a legal entity shall entail the imposition of an administrative fine in the amount of 50 times the minimum wage.

In addition, part 2 of Art. 32.11 of the Code of Administrative Offenses of the Russian Federation established that when concluding an agreement (contract) for the implementation of activities for the management of a legal entity authorized conclude an agreement (contract) face is obliged to request information on the presence of the disqualification of an individual in the body that maintains the register of disqualified persons. In case of failure to fulfill this obligation on the basis of Part 2 of Art. 14.23 of the Code of Administrative Offenses of the Russian Federation, a legal entity for concluding an agreement (contract) with a disqualified person for managing a legal entity, as well as for not applying the consequences of its action, may be subject to an administrative fine in the amount of up to 1,000 times the minimum wage.

In order for the future employer to be able to fulfill the requirements of Part 2 of Art. 32.11 of the Administrative Code of the Russian Federation, the law provides for the formation of a special register of disqualified persons.

In accordance with Part 3 of Art. 32.11 of the Code of Administrative Offenses of the Russian Federation, the formation and maintenance of the register of disqualified persons is carried out by a body authorized by the Government of the Russian Federation.

At the same time, the register consists of decisions of judges on the disqualification of the relevant officials coming from courts of general jurisdiction and arbitration courts. So, according to Part 4 of Art. 32.11 of the Code of Administrative Offenses of the Russian Federation, a copy of the decision on disqualification that has entered into legal force is sent by the court that issued it to the body authorized by the Government of the Russian Federation, or its territorial body.

Decree of the Government of the Russian Federation of November 11, 2002 No. 805 approved the Regulation on the formation and maintenance of the register of disqualified persons. According to this resolution, the register of disqualified persons is formed and maintained by the Federal Service of Russia for Financial Recovery and Bankruptcy and its territorial bodies in order to ensure the registration of persons disqualified on the basis of court orders on disqualification that entered into force, as well as to provide interested persons with information about disqualified persons.

In the course of the administrative reform, on the basis of the Decree of the President of the Russian Federation of March 9, 2004 No. 314, the Federal Service of Russia for Financial Recovery and Bankruptcy (FSFR) was abolished. At the same time, some functions performed by the FSFR of Russia in terms of state regulation of insolvency (bankruptcy) of organizations were assigned to the Federal Tax Service. In particular, by the Resolution of the Government of the Russian Federation of May 29, 2004 No. 257 "On securing the interests of the Russian Federation as a creditor in bankruptcy cases and in bankruptcy procedures", the Federal Tax Service of Russia is entrusted with the functions of representing the interests of the state in the event of bankruptcy of enterprises and organizations.

However, to date, no changes have been made to the Decree of the Government of the Russian Federation of November 11, 2002 No. 805 in terms of determining the body authorized to form and maintain a register of disqualified persons. Taking into account that the FTS of Russia maintains the state register of legal entities and individual entrepreneurs, we believe that the maintenance of the register of disqualified persons should also be entrusted to the FTS of Russia.

According to the decree of the Government of the Russian Federation No. 805 of November 11, 2002, copies of court decisions are sent by the courts that issued them to the authorized federal body or its territorial body. According to clause 4 of the above resolution, the information contained in the register of disqualified persons is provided for a fee in the amount of one minimum wage. The register contains the following information about the disqualified person:

· surname, name, patronymic, year and place of birth, place of residence;

· in which organization and in what position the specified person worked at the time of the offense;

· the date of the offense, its essence and qualifications (the article of the Code of Administrative Offenses of the Russian Federation is indicated);

· period of ineligibility;

· the start and expiry dates of the period of ineligibility.

The period for providing information contained in the register is 5 days from the date of receipt by the authorized federal body of the corresponding request.

The practical aspect is also the clarification of the question of the limits of restrictions on the ability to work as a disqualified person, i.e. what positions the ban applies to. According to paragraph 1 of Art. 3.11 of the Code of Administrative Offenses of the Russian Federation, a disqualified person is prohibited from holding managerial positions in the executive management body of a legal entity. At the same time, the legislator does not disclose the concept of "leading positions", which may create ambiguity in the application of this norm in practice.

FEATURES OF THE PROCEDURE FOR APPLICATION OF DISQUALIFICATION TO AN INDIVIDUAL ENTREPRENEUR, EXECUTING THE OBLIGATIONS OF THE ARBITRAL GOVERNOR AND COMMITTING ILLEGAL ACTS IN BANKRUPTCY

In accordance with Art. 3.11 of the Code of Administrative Offenses of the Russian Federation, disqualification can be applied to individual entrepreneurs who, among other things, carry out bankruptcy procedures and other powers established by the legislation on insolvency (bankruptcy), i.e. to the arbitration managers.

According to Part 3 of Art. 14.13 of the Code of Administrative Offenses of the Russian Federation, failure to comply with the rules applied during the period of supervision, external management, bankruptcy proceedings, conclusion and execution of an amicable agreement and other bankruptcy procedures provided for by the legislation on insolvency (bankruptcy) shall entail the imposition of an administrative fine in the amount of forty to fifty times the minimum wage or disqualification for up to three years.

Initiation of an administrative case against an insolvency administrator in the event of unlawful acts committed by him in bankruptcy

In accordance with the Resolution of the Government of the Russian Federation of February 14, 2003 No. 100 "On the Authorized Body in Bankruptcy Cases and in Bankruptcy Proceedings and the Regulatory Body Exercising Control over Self-Regulatory Organizations of Bankruptcy Administrators" by the regulatory body exercising control over the activities of self-regulating organizations of bankruptcy administrators, is the Ministry of Justice of the Russian Federation. According to Part 4 of Art. 28.3 of the Administrative Code of the Russian Federation, the list of officials authorized to draw up protocols on administrative offenses in accordance with parts 2 and 3 of this article is established by the relevant federal executive authorities. In accordance with the order of the Ministry of Justice of the Russian Federation dated June 28, 2002 No. 182 “On approval of the List of officials of the Ministry of Justice of the Russian Federation authorized to draw up

Protocols on administrative offenses "heads of territorial bodies of the Ministry of Justice of Russia, their deputies, heads of departments for work with self-regulatory organizations of arbitration managers are authorized to draw up protocols on administrative offenses provided for in Part 3 of Art. 14.13 of the Administrative Code of the Russian Federation.

Grounds for initiating an administrative case

According to clause 1 of part 1 of Art. 28.1 of the Code of Administrative Offenses of the Russian Federation, one of the grounds for initiating a case is the direct discovery by officials authorized to draw up protocols on administrative offenses of data indicating the presence of an event of an administrative offense.

With regard to the bankruptcy commissioner, such a reason for initiating a case may be the results of an audit of the activities of the bankruptcy commissioner, in the course of which the authorized official will reveal facts indicating that the bankruptcy commissioner has committed an administrative offense. It should be noted that the application of the authorized federal body to bring the bankruptcy commissioner to liability in the form of disqualification must be filed with the arbitration court.

From judicial practice

In practice, the initiation of a case against the insolvency administrator may be associated with the failure of this official to comply with the requirements of the legislation on insolvency (bankruptcy). Thus, in 2004, the Federal Arbitration Court of the Volgo-Vyatka District considered the complaint of an individual entrepreneur against the decisions of the courts of first and appellate instances on bringing him to justice in the form of disqualification. As follows from the materials of the case, the territorial body of the Federal Service of Russia for Financial Recovery and Bankruptcy in the Kostroma Region in 2003 checked the activities of an individual entrepreneur as an arbitration manager of a plant, which was declared insolvent by the court and in respect of which bankruptcy proceedings were opened. In the opinion of the territorial authority, the bankruptcy manager did not fulfill the decision of the creditors' meeting on the sale of the plant's property within the prescribed time limit and artificially delayed the bankruptcy proceedings. Seeing in the actions of the insolvency administrator the offense under Part 3 of Art. 14.13 of the Administrative Code of the Russian Federation, the Department drew up a protocol on an administrative offense and applied to the Arbitration Court of the Kostroma Region with a statement to bring the offender to administrative responsibility. By a court decision, the individual entrepreneur was found guilty of committing an offense and was sentenced to disqualification for a period of one year. The decision of the court was upheld by the decision of the appellate instance. The cassation instance did not find grounds for canceling the decisions of the courts, indicating the following.

The rules applied during the bankruptcy proceedings are established in Art. 124-149 of the Federal Law of October 26, 2002 No. 127-FZ "On Insolvency (Bankruptcy)". In Art. 130 of the said Law stipulates that in the course of bankruptcy proceedings, the bankruptcy commissioner carries out an inventory and assessment of the debtor's property. However, the court found that the individual entrepreneur violated the terms of work on the timely and proper assessment of the debtor's assets and, having carried out two types of assessment of the debtor's property (at the market price and liquidation value), artificially delayed the procedures for holding a meeting of creditors, organizing tenders and selling property, if any real applicants for the acquisition of property. As a result, the creditors' decisions were not executed within the established period of bankruptcy proceedings, the auction was not held, the property was not sold, the period of bankruptcy proceedings was forcedly extended.

Under such circumstances, in the opinion of the cassation instance of the court, the court lawfully brought the individual entrepreneur, acting as an arbitration manager, to administrative responsibility (resolution of the FAS of the Volgo-Vyatka District of August 20, 2004 No. A31-1440 / 20).

Taking into account the above provisions of the legislation on the application of disqualification, it should be noted that the introduction of disqualification as a new type of administrative penalty has a positive value for preventing officials from violating the requirements of the legislation, in particular labor legislation, labor protection, and bankruptcy legislation requirements. At the same time, there are also ambiguities in the application of the norms of the Code of Administrative Offenses of the Russian Federation, including those related to inconsistency with the Labor Code of the Russian Federation in terms of terminating an employment contract with a disqualified person. Therefore, the issue of applying disqualification requires further legislative revision and improvement.

L.A. Golomazova, lawyer

Currently, the implementation of decisions of the Constitutional Court of the Russian Federation is dealt with by the Ministry of Justice of the Russian Federation in accordance with the Decree of the President of the Russian Federation of May 20, 2011 No. 657 "On monitoring law enforcement in the Russian Federation", in particular, the Office of the Representative of the Russian Federation at the European Court of Human Rights, position is the Deputy Minister of Justice of the Russian Federation. In accordance with this Decree, the Ministry of Justice of the Russian Federation monitors law enforcement in the Russian Federation in order to fulfill the decisions of the Constitutional Court of the Russian Federation and the decisions of the European Court of Human Rights (hereinafter - the ECHR), in connection with which it is necessary to adopt, amend or repeal legislative and other regulatory legal acts of the Russian Federation ... The prepared bills are sent to the Government of the Russian Federation for discussion and submission in the prescribed manner to the State Duma.

The Ministry of Justice of the Russian Federation, on the basis of reports of federal executive bodies and state authorities of the constituent entities of the Russian Federation on the results of monitoring carried out by them in the previous year, and other materials received by the Ministry, prepares a draft report to the President of the Russian Federation on the results of monitoring and proposals for the plan of legislative activities of the Government of the Russian Federation ...

The draft report to the President of the Russian Federation on the monitoring results summarizes the results of the monitoring plan for the previous year and makes proposals on the need to adopt (issue), amend or invalidate (repeal) legislative and other regulatory legal acts of the Russian Federation; on measures to improve legislative and other regulatory legal acts of the Russian Federation, to increase the efficiency of law enforcement.

Based on the results of consideration of the report on the monitoring results, the President of the Russian Federation may issue instructions to state bodies and organizations, as well as officials on the development of legislative and other regulatory legal acts of the Russian Federation and the adoption of other measures to implement the proposals contained in the said report.

The Government of the Russian Federation submits to the President of the Russian Federation a report on the results of monitoring and takes into account, in the plan of its legislative activities, proposals on the adoption, amendment or abolition of legislative and other normative legal acts of the Russian Federation. The government regularly submits to the State Duma bills aimed at implementing the decisions of the Constitutional Court of the Russian Federation.

In accordance with Art. 80 of the Federal Constitutional Law of July 21, 1994 No. 1-FKZ "On the Constitutional Court of the Russian Federation" (hereinafter referred to as the Law on the Constitutional Court of the Russian Federation), in the event that by a decision of the Constitutional Court of the Russian Federation a normative act is recognized as inconsistent with the Constitution of the Russian Federation in whole or in part or from the decision of the Constitutional Court of the Russian Federation implies the need to eliminate a gap in legal regulation, the Government of the Russian Federation, no later than six months after the publication of the decision of the Constitutional Court of the Russian Federation, interrelated draft laws or a draft law on amendments to a law recognized by the Constitutional Court of the Russian Federation as unconstitutional in a separate part of it. The President of the Russian Federation, the Government of the Russian Federation, no later than two months after the publication of the decision of the Constitutional Court of the Russian Federation, cancel the normative act, respectively, of the President of the Russian Federation or the Government of the Russian Federation, adopt a new normative act or amend and (or) amend the normative act recognized as unconstitutional in its separate part.

The Government of the Russian Federation carries out activities to implement the decisions of the Constitutional Court within the framework of the Commission on Legislative Activity, taking into account the decisions of the Constitutional Court of the Russian Federation. The commission prepares draft laws with their preliminary discussion in ministries and departments, after which it adopts an appropriate order to submit this draft law to the State Duma.

The execution of decisions of the Constitutional Court of the Russian Federation is subject to external and internal control of a number of subjects. Internal (intradepartmental) control over the execution of decisions of the Constitutional Court of the Russian Federation is carried out by bodies and officials responsible for the adoption, amendment of acts recognized in whole or in part as unconstitutional. External control is provided by the Constitutional Court of the Russian Federation (its Secretariat), prosecutors and justice bodies. In particular, in accordance with § 67 of the Rules of the Constitutional Court of the Russian Federation, the Secretariat of the Constitutional Court systematically analyzes the state of affairs on the implementation of decisions of the Constitutional Court adopted in the course of the implementation of constitutional proceedings, the reasons for non-execution or improper execution of these decisions, submits to the Constitutional Court annual information and analytical reports on execution of decisions of the Constitutional Court adopted in the course of the implementation of constitutional proceedings. If necessary, the Secretariat of the Constitutional Court may be instructed to prepare information on the implementation of one or a number of specific decisions of the Constitutional Court.

When establishing the fact of non-execution or improper execution of decisions of the Constitutional Court adopted during the implementation of constitutional proceedings, the President of the Constitutional Court or, on his behalf, the Deputy Chairman of the Constitutional Court submits proposals for consideration of the Constitutional Court at a meeting on measures that could facilitate the enforcement of decisions of the Constitutional Court of the Russian Federation ... The Secretariat of the Constitutional Court, as necessary, prepares information on the status of execution of decisions of the Constitutional Court of the Russian Federation, adopted in the course of the implementation of constitutional proceedings, for the subsequent forwarding of this information to state and other bodies, as well as to other persons determined by the Constitutional Court of the Russian Federation.

In practice, problems sometimes arise in the mechanism of execution by the federal legislator of decisions of the Constitutional Court of the Russian Federation, and its acts remain unfulfilled for a long time. It should be borne in mind that the subjects of consideration are, as a rule, rather complicated, and in a situation when the established deadlines have expired, it is incorrect to draw unambiguous conclusions about ignoring, unwillingness to execute the decisions of the Constitutional Court of the Russian Federation. Often this is due to their erroneous understanding and, as a result, inaccurate or distorted display of legal positions in legislation. One of the main reasons for non-execution lies in the insufficient level of professional training of performers, low legal culture in general and the still encountered underestimation of the significance of the decisions of the Constitutional Court of the Russian Federation.

The execution of decisions of the Constitutional Court of the Russian Federation and the ECHR is of a mechanistic nature, there is no systematic approach to the analysis of legislation, the reasons for the inconsistency of normative acts with the Constitution of the Russian Federation and the Convention for the Protection of Human Rights and Fundamental Freedoms are not identified, and there is no proper coordination of bodies executing the decisions of the Constitutional Court of the Russian Federation and the ECHR.

The court is not empowered to enforce its decisions. Moreover, based on the provisions of Art. 111 of the Law on the Constitutional Court of the Russian Federation and the Rules of the Constitutional Court of the Russian Federation The Court monitors the situation with the implementation of its decisions, in particular, it constantly monitors the current legislation in terms of accurately taking into account the legal positions of the Constitutional Court of the Russian Federation.

As for the violation of the deadlines for the execution of decisions of the Constitutional Court of the Russian Federation, most often problems arise in connection with the delay in the presentation of the necessary draft law by the Government of the Russian Federation. Of course, in the State Duma, the process of adopting a law may be delayed, despite the fact that the deadlines for the adoption of bills, as well as the deadlines for the reintroduction of a bill by the Government of the Russian Federation, have not been established in the Constitution of the Russian Federation and the Law on the Constitutional Court of the Russian Federation. It is clear how difficult it is to reconcile sometimes diametrically opposed interests of the participants in disputed legal relations, even if there is a decision of the Constitutional Court of the Russian Federation.

Significant problems in the implementation of the decisions of the Constitutional Court of the Russian Federation are associated with the inconsistency in the actions of the interested bodies and officials participating in the mechanism for ensuring the execution of its decisions, which is clearly confirmed by the contradictory information of the relevant bodies about the decisions of the Constitutional Court of the Russian Federation requiring execution and the state of their implementation.

In this regard, the Constitutional Court of the Russian Federation has designated for all interested public authorities involved in the process of executing decisions, a number of criteria that make it possible to achieve a uniform approach in assessing the need for and ways of implementing its decisions.

In 2012, the Federation Council prepared a report on the state of legislation in the Russian Federation, dedicated to monitoring the implementation of decisions of the Constitutional Court of the Russian Federation, which formulated conclusions and recommendations in order to ensure the regime of constitutional legality, a high degree of coordination and efficiency of procedures for the execution of decisions of the Constitutional Court of the Russian Federation. Not all legal and organizational measures proposed by the Federation Council have been implemented. For example, the issues of the implementation by the Constitutional Court of the Russian Federation of the institute of messages to the Federal Assembly of the Russian Federation, the establishment of responsibility of officials for non-compliance with decisions of the Constitutional Court of the Russian Federation, the empowerment of the prosecutor's office with powers to supervise the execution of decisions of the Constitutional Court of the Russian Federation and a number of other issues remain relevant, which indicates the need to improve the mechanism for execution of decisions of the Constitutional Court of the Russian Federation.

Analysis of the activities of the Government of the Russian Federation and the Ministry of Justice of the Russian Federation on the implementation of decisions of the Constitutional Court of the Russian Federation, carried out in accordance with the Decree of the President of the Russian Federation of May 20, 2011 No. 657 "On monitoring law enforcement in the Russian Federation", shows that there is a problem of timely and high-quality execution of decisions judicial authorities.

The Constitutional Court actively uses the form of recommendation to the legislator. Thus, on the basis of the recommendations of the Constitutional Court, many federal laws have been adopted.

From 1992 to 2016, 226 decisions and determinations of the Constitutional Court of the Russian Federation were adopted, which revealed unconstitutional norms. During the same period, 169 decisions of the Constitutional Court were executed, for the rest, draft federal laws were prepared and submitted by the Government to the State Duma. The execution of the decisions of the Constitutional Court is proceeding with some delay, which some authors associate with the lengthy coordination of procedures on the draft law.

Work to identify those requiring execution in accordance with Art. 80 of the Law on the Constitutional Court of the Russian Federation, decisions and the state of their implementation are carried out by the Secretariat of the Constitutional Court in the form of maintaining the List of decisions of the Constitutional Court of the Russian Federation, implying a change in federal regulation. For each final decision, a special conclusion is drawn up, in which, in cases requiring legislative regulation, the possible format of its implementation in the rule-making sphere is determined. In 2013, 21 decisions of the Constitutional Court were adopted, implying a change in legislative regulation. Such decisions are subject to execution in accordance with Art. 80 of the Law on the Constitutional Court of the Russian Federation (on the recognition of regulatory provisions as inconsistent with the Constitution of the Russian Federation, as well as on the recognition of regulatory provisions as compliant with the Constitution of the Russian Federation in the sense identified by the Constitutional Court, containing instructions addressed to the rule-making body).

10 decisions of the Constitutional Court (2 decisions and 8 decisions), adopted in 2013, contain recommendations of a recommendatory nature to the rule-making body. The time requirements established by Article 80 of the Law on the Constitutional Court of the Russian Federation do not apply to these decisions.

According to the results of 2013-2017. it can be stated that the mechanism for the execution of decisions of the Constitutional Court as a whole is functioning successfully and is ensured by the appropriate actions of interested subjects (the State Duma of the Federal Assembly of the Russian Federation, the Federation Council of the Federal Assembly of the Russian Federation, the Government of the Russian Federation, the Ministry of Justice of the Russian Federation, ministries and departments, which were instructed by the Government of the Russian Federation to develop appropriate bills).

In 2013, 20 federal laws were adopted aimed at enforcing decisions of the Constitutional Court (the largest number in recent years, for comparison: in 2011-2012 - 15 and 17 laws, respectively). In the period from January to October 2014, the Government of the Russian Federation submitted 10 bills to the State Duma in pursuance of the decisions of the Constitutional Court of the Russian Federation, in 2015-2016 - 38.

The Constitutional Court formulates prescriptions addressed to law enforcers defining the procedure for the execution of its decisions pending the introduction of the necessary legislative changes.

This allows you to remove possible problems with the timing of the relevant cases and ensure the stability of legal regulation, as well as the consistency of legal practice. Such prescriptions in 2015 were formulated by the Constitutional Court in 11 decisions. They not only relate to the issues of consideration of cases by the judicial authorities, but may also affect the activities of other law enforcement officers. For example, in the Resolution of November 19, 2015 No. 29-P, the Constitutional Court, recognizing the contested provisions of the Federal Law "On Labor Pensions in the Russian Federation" as inconsistent with the Constitution of the Russian Federation to the extent that they allow not to include a citizen in the insurance period, is unreasonable prosecuted and subsequently rehabilitated, the period during which he was temporarily suspended from office (work) in connection with the decision of the prosecuting authority to apply this measure of procedural coercion to him, and thereby hinder the restoration of his pension rights, separately noted that, pending the introduction of appropriate legislative changes, the insurance record of a rehabilitated person should include the entire period of his removal from office (work) according to the rules provided for the period of detention.

These data indicate a steady positive trend in the implementation of decisions of the Constitutional Court, an increase in executive responsibility, as well as the need for further constructive cooperation of the Constitutional Court, its Secretariat with the relevant state authorities.

At present, on the issues of execution of decisions, the necessary close interaction is ensured with almost all structures involved in the process of legal regulation. The Secretariat of the Constitutional Court monitors the implementation of decisions of the Constitutional Court, prepares relevant certificates and lists, which are regularly sent to federal government bodies.

An updated List of Decisions of the Constitutional Court of the Russian Federation, implying a change in federal regulation, is sent to the State Duma twice a year. It reflects the positions of the Secretariat of the Constitutional Court, as well as the Government of the Russian Federation and the Ministry of Justice of the Russian Federation on the status of implementation of the relevant decisions, possible contradictions regarding their implementation. In turn, the State Duma and its specialized committees regularly send information on the status of execution of decisions.

The foregoing allows us to assert that only joint coordinated work of all parts of the state mechanism allows ensuring high-quality and timely work to eliminate legislative and law enforcement defects identified in the decisions of the Constitutional Court. At the same time, the practice of executing his decisions testifies to the increased responsibility of the state bodies and officials involved in the process of ensuring the execution and, in general, demonstrates an overall positive trend in the implementation of acts of constitutional justice.

The Ministry of Justice of Russia in accordance with the Decree of the President of the Russian Federation of May 20, 2011 No. 657 "On monitoring law enforcement in the Russian Federation" collects, summarizes, analyzes and evaluates information to ensure the adoption (publication), amendment or invalidation (cancellation) of regulatory legal acts - in order to fulfill the decisions of the Constitutional Court.

At the same time, the task of further improving the mechanism for implementing decisions of the Constitutional Court remains relevant.

Despite the noted positive trend in the implementation of decisions of the Constitutional Court, certain problems in the relevant area continue to persist. So, at present, according to the Secretariat of the Constitutional Court, the federal legislator has not executed 39 decisions. The ruling of January 19, 2011 No. 114-0-P can also be considered unfulfilled; (neuropsychiatric) institutions for social security. With regard to 7 decisions, there are differences in the positions of the Secretariat of the Constitutional Court and the Ministry of Justice of Russia regarding their implementation. As their analysis shows, all of them are associated with the improper implementation of legislative regulation in pursuance of the decisions of the Constitutional Court (which does not fully take into account the content of the expressed legal positions).

In the opinion of the Ministry of Justice of Russia, the procedure for amending laws already adopted in pursuance of decisions of the Constitutional Court is not legally defined. Without appropriate instructions, the Ministry of Justice of Russia is not entitled to independently initiate the corresponding process. At the same time, at a joint meeting held in May 2013 with representatives of the Ministry of Justice of Russia (at the level of a deputy minister), the intention was announced to bring the information provided by the Secretariat of the Constitutional Court on the improper execution of the relevant decisions to the concerned ministries (departments).

Another problem of the execution of decisions of the Constitutional Court is still the untimely process of preparation of bills by interested executive authorities, which have been given appropriate instructions by the Government of the Russian Federation. As a rule, such instructions are given simultaneously to several interested bodies, which, through various conciliation procedures, delay the established deadlines for the preparation of relevant bills. The Government of the Russian Federation provides an urgent initial response to practically every decision of the Constitutional Court, while decisions on the recognition of norms that do not comply with the Constitution of the Russian Federation and decisions that reveal the constitutional and legal meaning of the contested norm are binding.

In connection with the introduction of clause 1 of Art. 80 of the Law on the Constitutional Court of the Russian Federation of amendments that increased the term for the execution of decisions of the Constitutional Court from 3 to 6 months, the problem of violation of these terms, which arose at the stage of preparation of bills by federal bodies and coordination of positions on bills, has been practically eliminated. So, at present, all unfulfilled decisions of the Constitutional Court, which are undergoing the approval procedure in the Government of the Russian Federation, are dated no later than October 2013 (with the exception of 7, on which there are disagreements in the positions of the Secretariat of the Constitutional Court and the Ministry of Justice of Russia regarding their implementation).

Other problems of execution are associated with the activities of the State Duma. Currently, there are 24 bills in the State Duma at various stages of the legislative process, adopted in pursuance of the decisions of the Constitutional Court. For 10 of them, for quite a long time there is no information about the progress of the legislative process in the State Duma.

Most of the bills currently under consideration in the State Duma, and this concerns essentially half of the unexecuted decisions of the Constitutional Court, go through lengthy procedures for appointing responsible profile committees, co-executing committees, etc. For example, the draft law developed and submitted by the Government of the Russian Federation more than a year ago pursuant to Resolution No. 16-P of July 14, 2011 is currently under consideration in the first reading due to the ongoing approval procedures.

The requirements of Part 2 of Art. 87 of the Law on the Constitutional Court of the Russian Federation, it is established that the recognition of a normative legal act as inconsistent with the Constitution of the Russian Federation is the basis for canceling, in the prescribed manner, the provisions of other normative acts that fully or partially reproduce or contain similar provisions. However, as practice shows, the aforementioned prescription is not actually implemented by state authorities in their rule-making activities.

Finally, the nature of legislative approaches to the content of draft laws developed in pursuance of constitutional and judicial acts remains a significant factor affecting the state of execution of decisions of the Constitutional Court. Often, the legislator, when executing the decision of the Constitutional Court, is limited to literal reproduction of the legal positions expressed in the operative part of the decision. However, the goal of the execution of the decisions of the Constitutional Court - the creation of a consistent legal regulation in the relevant sphere of public relations - can hardly be achieved by literal reproduction of the provisions of the operative part of the corresponding decision.

Without a systematic approach to the content of the legal position, expressed in the text of the constitutional-judicial act, without taking into account the specific factual circumstances accompanying the improper judicial enforcement, which became one of the reasons for the disqualification of the norm, without comprehensive consideration of other factors that characterize the case of checking the constitutionality of the relevant legal provisions, including forecasting optimal regulation of similar situations, without directed actions to exclude the possibility of repeated appeals, it is quite difficult to achieve such a legislative result, which can be recognized by the implementation of proper legislative regulation.

As an example, we can cite the Resolution of January 17, 2013 No. 1-P, in which the Constitutional Court of the Russian Federation, among other things, recognized the provisions of Part 5 of Art. 19.8 of the Code of Administrative Offenses of the Russian Federation, since the significant minimum amount of an administrative fine established by them does not allow in all cases to fully take into account the nature of the committed administrative offense, the property and financial situation of the legal entity, as well as other significant circumstances relevant to the case and thereby ensure the appointment fair and proportionate administrative punishment.

At the same time, the Constitutional Court pointed out a general drawback of the current regulation - the absence in its system of the possibility of imposing an administrative penalty below the lower limit of the corresponding administrative sanctions.

In pursuance of this decision, the Federal Law of December 2, 2013 No. 343-FZ "On Amendments to Article 19.8 of the Code of Administrative Offenses of the Russian Federation" was adopted, which reduced the amount of the minimum fine for an offense under Part 5 of Art. 19.8 of the RF Code of Administrative Offenses. At the same time, the content of the legal position of the Constitutional Court - on the need to develop legislative criteria allowing the courts, when considering relevant cases, to make decisions on going beyond the limits of an administrative sanction - remained unfulfilled, while formally the mentioned Law testified to the execution of the decision of the Constitutional Court.

In 2014, the Constitutional Court was forced to consider a new case, as a result of which in the Decree of February 25, 2014 No. 4-P, assessing the constitutionality of a number of provisions of the Code of the Russian Federation on Administrative Offenses, it recognized them as inconsistent with the Constitution of the Russian Federation, since they do not allow appointment an administrative fine is lower than the lower limit specified in the corresponding administrative sanction, and thus does not allow to properly take into account the nature and consequences of the committed administrative offense, the degree of guilt of the legal entity brought to administrative responsibility, its property and financial situation, as well as others that are essential for individualization administrative responsibility of the circumstances and, accordingly, ensure the appointment of a fair and proportionate administrative penalty.

Taking into account the formal, literal approach to the implementation of the relevant decisions, the Constitutional Court noted that the requirements for the minimum amounts of administrative fines established for legal entities for specific administrative offenses also apply to other provisions of the RF Code on administrative offenses. Amendments to this Code arising from this Resolution should be aimed at excluding the possibility of excessive restrictions on the economic freedom and property rights of legal entities when they are brought to administrative responsibility and for other administrative offenses, the minimum amounts of administrative fines for which are comparable to those established legal provisions recognized by this Resolution as inconsistent with the Constitution of the Russian Federation, i.e. at least one hundred thousand rubles or more. At the same time, the federal legislator is not deprived of the opportunity to fix - both on a universal basis and in relation to certain types of administrative offenses - the maximum amount of an administrative fine assigned to a legal entity, below which its reduction is not allowed.

Thus, what is needed is not a literal reproduction of the legal positions of the Constitutional Court, expressed both in the operative and in the reasoning parts of its decisions, but an integrated approach, a systematic analysis of their content, which will ensure the proper execution of the acts of the Constitutional Court.

The decisions of the Constitutional Court are subject to compulsory registration and execution in the field of law enforcement, primarily of the judiciary. At the same time, due to the principle of direct action of constitutional and judicial acts (part 2 of article 79 of the Law on the Constitutional Court of the Russian Federation), which do not require confirmation by other bodies and officials, the direct enforcement of legal positions expressed in the relevant decisions of the Constitutional Court is possible immediately after their entry into force, regardless of the presence of appropriate legislative changes, carried out in accordance with the instructions addressed to the legislator, which are included by the Constitutional Court in the operative part of its decisions in order to determine the specifics of the entry into force of the decision, as well as the specifics of its implementation (clause 12, para. 1 article 75). The only exceptions are situations in which the emergence of legal relations in the absence of new legislative regulation is practically impossible, for example, if it is necessary to secure additional budgetary allocations, establish special procedures and mechanisms for the implementation of subjective rights and obligations, change the subject composition of legal relations, determine legislative criteria for legal implementation, etc. ... In addition, in such cases, the Constitutional Court, in order to avoid a gap in law, as a rule, establishes temporary regulation until the moment the appropriate amendments are made to the disqualified normative act.

In response to the proposal of the Constitutional Court to the highest judicial bodies, made in July 2012, with an initiative to strengthen interaction on the formation of a unified consistent law enforcement practice, as well as to a request for information on the response of courts of general jurisdiction, commercial courts to decisions taken by the Constitutional Court, The Supreme Court of the Russian Federation began to send relevant information.

The law enforcement problems of the proper execution of decisions of the Constitutional Court by the judicial authorities are still caused, in particular, by the absence in the sectoral legislation of normative provisions securing the procedural consequences of decisions of the Constitutional Court, recognizing the constitutionality of the contested norm and, at the same time, in connection with the identification of its constitutional and legal meaning. indicating the need to review the enforcement decisions taken against the applicant; the unsettledness of the issue of the effect of decisions of the Constitutional Court in terms of the range of persons (on their extension to persons who are not applicants), as well as in time (on the possible retroactive effect of constitutional and judicial acts).

In general, the execution of decisions of the Constitutional Court in 2013-2014. has a positive trend. This was facilitated, among other things, by legislative changes aimed at improving the timing of the introduction of bills in pursuance of decisions of the Constitutional Court and the subject composition of the mechanism for the execution of constitutional and judicial acts, as well as significant organizational work, systematically carried out by state bodies in their close cooperation, primarily by the Federation Council, the Government RF, Ministry of Justice of Russia. Meanwhile, the problems of non-execution (improper execution) of decisions of the Constitutional Court continue to persist both in the sphere of activity of rule-making bodies and in law enforcement.

In 2011, the Institute of Legislation and Comparative Law under the Government of the Russian Federation prepared an analytical note, which considered a number of problematic issues related to the implementation of the Decree of the President of the Russian Federation of May 20, 2011 No. 657 "On monitoring law enforcement in the Russian Federation", and also studied issues of the relationship between regulatory impact assessment and legal monitoring, primarily with the mechanism of influence of the results of such monitoring on legislation and law enforcement practice.

This document formulated a number of important conclusions and proposals aimed at improving the mechanism for implementing decisions of the Constitutional Court of the Russian Federation, lawmaking and law enforcement, and improving the quality of monitoring. So, in this document it was indicated that most of the regulatory legal acts providing for monitoring law enforcement in the Russian Federation state the need to use the results obtained to adjust rulemaking and law enforcement, but do not enshrine the appropriate procedure, accounting criteria, and methods of response.

One of the most common forms of generalization of the results of the monitoring of law enforcement is the preparation of reports for submission to the authorized body of state power (for example, the President of the Russian Federation, the Government of the Russian Federation). It is necessary to envisage the obligation of public authorities, on the basis of the data obtained during the monitoring of law enforcement and reflected in the corresponding report, to take measures to correct regulatory legal acts and law enforcement activities.

It is required to form a unified multi-level information base for monitoring law enforcement, in which the results obtained during the monitoring of law enforcement by subjects of different levels should be generalized.

It is advisable to consolidate the procedure for informing about the measures taken taking into account the results of the monitoring. Thus, the relevant information on the improvement of the rule-making and law enforcement activities of the federal executive bodies on the basis of the data revealed during the monitoring should be received, respectively, by the Government of the Russian Federation or the President of the Russian Federation. The transparency of information on the results of the monitoring of law enforcement can be ensured not only by publishing the relevant reports, but also as a result of processing individual requests from interested parties who have applied to the appropriate body responsible for maintaining a unified information base for monitoring law enforcement.

In the constituent entities of the Russian Federation, considerable practical experience has been accumulated in the field of organizing legal monitoring. This is facilitated both by the adoption of regulatory legal acts introducing the function of conducting legal monitoring in the activities of state authorities of the constituent entities of the Federation, and by the approval and implementation of annual plans containing a list of regulatory legal acts subject to legal monitoring. The main ways of formalizing the results of legal monitoring in the constituent entities of the Russian Federation are annual reports on the state of legislation, thematic reports (reports), other information and analytical materials, methodological recommendations. Along with this, the results of monitoring specific laws and other legal acts are enshrined in the regulatory legal act of the body that carried out the monitoring.

In order to improve the organization and conduct of monitoring of judicial practice, the following measures are required:

• - adjusting the mechanism for checking the effectiveness of applicable laws and other regulations through the widespread (on an ongoing basis) introduction of the institution of monitoring judicial practice into the system of functioning of Russian courts, defining and covering a wider range of issues subject to analysis and generalization;
• - development of a clear procedure for monitoring judicial practice, coordination of actions between courts of various levels, frequency of monitoring judicial practice in district courts, courts of constituent entities of the Russian Federation; development of requirements for the registration of monitoring results, the timing of sending materials to the highest judicial authority;
• - development of a methodology for monitoring judicial practice. Within the framework of this, it is necessary to envisage the criteria according to which the corresponding monitoring can be carried out. For example, the compliance of a specific normative legal act with the Constitution of the Russian Federation; identification of contradictions with other superior acts; true goals (meaning) of the interpreted act;
• - not only monitoring the application of a specific regulatory legal act, but also identifying the need for legal regulation of certain social relations (in the presence of gaps in law, conflicts, uncertainties of legal regulation, etc.);
• - organization of forms of interaction between judicial authorities and other state bodies, including the development of a procedure for regularly informing the Government of the Russian Federation about the results of the monitoring of judicial practice.

The results of legal monitoring obtained at the regional level have an impact on legislative and law enforcement practice at both the regional and federal levels. At the same time, the existing mechanism for the implementation of the results of legal monitoring has both advantages and disadvantages. On the one hand, in a number of constituent entities of the Federation, this mechanism is generally regulated: possible forms of consolidating the results of legal monitoring and response measures aimed at increasing the effectiveness of the laws have been approved. On the other hand, and this is the main drawback, the need to respond to the results of legal monitoring is in most cases of a recommendatory nature (“recommend”, “consider the possibility”, etc.), which, in turn, does not provide for response times and measures. responsibility in case of failure to take the necessary measures. Meanwhile, the issues of responsibility are of no small importance, since they act as one of the guarantees for the implementation of the results of legal monitoring. It appears that responsibility can be twofold:

• - firstly, this is consolidation in the current legislation and the actual application of measures of responsibility to officials who have not taken the necessary response measures based on the results of legal monitoring;
• - secondly, the results of legal monitoring themselves are the basis for the application of measures of responsibility, in particular, disciplinary, to officials for their failure to comply or distort the meaning of regulatory legal acts, etc.

The mechanism of the impact of monitoring results on legislation and law enforcement practice may include the following stages:

• - collection of information (including the results of the conducted thematic monitoring) and processing of the results (identification of deficiencies in rule-making and law enforcement, analysis of the causes of their occurrence, generalization of the data obtained);
• - publication (disclosure) of information obtained as a result of monitoring (including for the purpose of public discussion of possible response measures);
• - the choice of forms of using the results: developing ways to eliminate the identified shortcomings, proposals for improving regulatory legal acts, adjusting law enforcement practice, using the positive experience of regulatory legal regulation at the federal and regional levels. Taking into account the results of legal monitoring is necessary when planning both lawmaking and law enforcement activities. So, the plan of legislative work for the next period should be formed taking into account the results of legal monitoring. Only in this case, the last stage of one process - the assessment of its effectiveness by analyzing the operation of legal acts - will at the same time act as the initial stage of the next process. The action plan to improve the effectiveness of the implementation of the law should contain instructions to the legislative and executive bodies of state power, local government bodies and other bodies aimed at eliminating factors that reduce the effectiveness of the law. The indicated instructions may be of the following nature: on amending the law, in respect of which legal monitoring was carried out, and declaring the law or its individual provisions invalid; on amendments to other regulatory legal acts or the development and adoption of a regulatory legal act at both the federal and regional levels, aimed at the effective implementation of the law; on the development of targeted programs or amendments to existing programs;
• - sending the obtained results and developed proposals to the bodies (officials) authorized to take the required response measures, including the development of draft regulatory legal acts;
• - using the results of the monitoring in the development and adoption of regulatory legal acts, management decisions, the commission of legally significant actions aimed at adjusting the rule-making and law enforcement activities;
• - control over the activities for the accounting of results, the adoption of response measures (including the direction of information on the use of the results of the monitoring carried out in the improvement of rule-making and law enforcement activities);
• - Evaluation of the effectiveness of using the results of the monitoring (including when planning new monitoring studies).

For each stage of the mechanism under consideration, the development, normative consolidation of the relevant procedures, as well as the definition of the circle and legal status of responsible persons are required.

The effective functioning of this mechanism requires appropriate information support. Data on the results of legal monitoring should be included in a single information base. In this regard, it is advisable to reflect in the sections of this database:

• - about the object of the monitoring carried out (a regulatory legal act or part of it, a legal norm or a group of legal norms, the scope of legal regulation, a certain range of public relations);
• - about the purpose of monitoring (expected result);
• - on the actual result of monitoring - data on the state of the object (which is a certain area of ​​legal regulation or the circle of public relations) or the quality and operation of the object of monitoring (in relation to a specific regulatory legal act);
• - on the content and addressee of proposals (response measures) developed as a result of monitoring and aimed at improving legal regulation, adjusting law enforcement practice;
• - on the use of monitoring results (data on instructions, prepared and (or) adopted regulatory legal acts, amendments to the current legislation, decisions, other response measures).

Currently, in the field of execution of decisions of the Constitutional Court of the Russian Federation, the problem of the quality of such execution comes to the fore. To solve it, it is necessary to thoroughly study the issue of criteria for the effective implementation of decisions of the Constitutional Court of the Russian Federation, which would make it possible to assess the quality of enacted regulatory legal acts and the quality of work of individual entities responsible for the direct execution of decisions

Of the Constitutional Court of the Russian Federation, as well as for maintaining the mechanism of such execution in working order See: N.S. Bondar. Judicial constitutionalism: doctrine and practice: monograph / N.S. Cooper. 2nd ed., Rev. Moscow: Norma, Infra-M, 2016, pp. 156.

Chapter 1. Administrative and legal essence of disqualification.

§ 1. Concept and legal basis for disqualification.

§2. Disqualification signs.

§3. Disqualification in the system of administrative punishment and its correlation with other types of punishment.

Chapter 2. Procedure for applying disqualification.

§ 1. Application of disqualification by courts of general jurisdiction.

§2. Features of the application of disqualification by arbitration courts.

§3. Features of the execution of the order (decision) on disqualification.

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Dissertation introduction (part of the abstract) on the topic "Disqualification as a type of administrative punishment"

Relevance of the research topic.

Man, his rights and freedoms are the highest value. Recognition, observance and protection of human and civil rights and freedoms is the duty of the state. " “Human and civil rights and freedoms are directly applicable. They determine the meaning, content and application of laws, the activities of the legislative and executive authorities, local self-government and are provided with justice ”.

These provisions, enshrined in the second and eighteenth articles of the Constitution of the Russian Federation, 1 became decisive in the legal reform of Russia, which, along with other sectors, covered administrative law. Reforming in order to create an effective and democratic institution of state coercion is a "cornerstone" on the way of implementing the principles enshrined in the Constitution of the Russian Federation.

One of the links of state coercion is administrative coercion, which includes the institution of administrative responsibility.

Administrative offenses are one of the most common types of offenses that cause significant harm to society and the state. In the scientific literature, it is noted that since the beginning of the 90s, at least 60 million people have been brought to administrative responsibility every year, 2 and the duty of the state, on the one hand, is to ensure the observance of the rights of persons brought to justice, and on the other, to prevent the commission of new offenses and ensure the inevitability

1 The Constitution of the Russian Federation as amended by the Decrees of the President of the Russian Federation dated 09.01.1996 No. 20, dated 10.02.1996 No. 173, dated 09.06.2001 No. 679, dated 25.07.2003 No. 841, Federal Constitutional Law dated 25.03.2004 No. 1- FKZ.- M. Gorodets, 2004.

Pospelova L.I. Problems of the codification of administrative-tort legislation: Dissertation candidate. jurid. sciences. - M .: All-Russian Research Institute of the Ministry of Internal Affairs of Russia, 2001. - P. 20; Rokhlin V.I., Stukanov A.P. Actual problems of combating administrative offenses // Jurisprudence, 1998.-№ З.-С. 94-95. fair punishment for those already committed. In this regard, the creation of an effective institution of administrative responsibility is of particular relevance.

The adoption of the new Code of Administrative Offenses of the Russian Federation 1 (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation) is a significant step in this direction, since with its adoption the institution of administrative responsibility was significantly reformed.

First, the legislator has abandoned the term "administrative penalty", now the concept of "administrative penalty" is applied. It seems that such a term more accurately reflects the essence of a punitive sanction as a measure of administrative responsibility, emphasizing the danger of an administrative offense, which necessitates the application of a measure of state coercion in the form of an administrative penalty.

Secondly, the system of administrative penalties has also undergone changes. Correctional labor was excluded from it, the presence of which as a sanction for committing administrative offenses was contrary to international conventions on forced labor.

Thirdly, the system of the considered punishments has been supplemented with a new and one of the most promising, in our opinion, for the domestic legislation on administrative offenses, the type - disqualification (Article 3.2 of the Administrative Code of the Russian Federation).

Disqualification, in our opinion, is a new attempt by the legislator to increase the effectiveness of administrative responsibility, aimed at reducing the number of administrative offenses, primarily in such a complex area as economic activity. This is an important step towards the individualization of administrative punishments, which will make it possible to take into account the individual characteristics of law much better.

1 Code of the Russian Federation on Administrative Offenses of December 30, 2001; as amended by Federal Law of the Russian Federation of 30.12.2004 // SZ RF.-2002.-№ 1.-Art. 1; SZ RF.-2004.-№ 34-St. 3533. offender and select the most effective type of administrative punishment for him. Disqualification should contribute to a higher level of protection of the rights and interests of citizens and legal entities.

Speaking about the practice of applying disqualification, it should be noted that only for the period from July 1, 2002 to December 31, 2003, according to the data available to the Judicial Department of the Russian Federation, judges of general jurisdiction disqualified 1,021 persons (in 2003 - 294 persons), and only in 2004 - 1465 persons, i.e. over the past year, the number of disqualified persons in Russia as a whole has increased almost fivefold. For example, in the Krasnodar Territory in 2002 2 people were disqualified, in 2003 - 16, and in 2004 - 128 people, that is, in fact, the number of disqualified persons in the region annually increased eight times. Nevertheless, this is still a very modest figure in comparison with other types of administrative punishments (for example, in 2004 alone, 492,391 persons were deprived of special rights by judges of general jurisdiction). However, here, of course, it is necessary to take into account the fact that not any individual can be disqualified, but only the one who manages the legal entity.

As for the number of persons disqualified by the arbitration courts, such statistics are not published and are practically absent for a number of reasons stated in this dissertation research. Nevertheless, as of June 23, 2004, the Department for Control over the Activities of Self-Regulatory Organizations of Arbitration Trustees of the Ministry of Justice of the Russian Federation had data on 17 disqualified bankruptcy commissioners (at present, the functions of this Department are entrusted to the Federal Registration Service (Rosregistration)).

The practice cited by us gives grounds to recognize disqualification as the most dynamically developing type of administrative punishment, which for its further successful development needs a solid legislative and theoretical basis. In this regard, our study of disqualification as a type of administrative punishment is considered relevant and in demand.

Object and subject of dissertation research.

The object of the dissertation research is disqualification, as a new type of administrative punishment, relations arising in the process of its application, as well as trends and patterns of development of disqualification in the system of administrative punishments.

The subject of the research is the norms of administrative, administrative-procedural and arbitration-procedural legislation that regulate the use of disqualification as a type of administrative punishment, as well as theoretical views on the problem under study.

The degree of scientific sophistication.

Disqualification is a new type of administrative punishment, previously unknown to administrative law and characterized by a lack of sufficient elaboration, both in legislation and in the theory of Russian administrative law, as well as a relatively small practice of application. Only a few scholars raised certain issues directly related to disqualification, but no one has carried out a deep and comprehensive analysis. Nevertheless, today disqualification is a legally established type of administrative punishment, which, despite some problems, is still applied in Russia. In this regard, both science and practice have long been in need of a fundamental study of this type of administrative punishment.

The work presented by us is the first attempt at a comprehensive study of disqualification as an independent type of administrative punishment, which once again confirms its relevance and relevance.

Goals and objectives of the study.

The objectives of the study are to comprehensively analyze regulations, theoretical research and practice materials on issues of disqualification as one of the types of administrative punishment, to understand the essence and features of the practical application of disqualification, as well as to develop, on this basis, scientifically based recommendations for its improvement.

Based on the goals, the objectives of the dissertation are defined: definition of the essence and concept of disqualification; identifying the specifics of this punishment; disclosure of signs of this type of administrative punishment; study of the features of disqualification that distinguish it from other types of administrative punishments; research on the issue of assignment of disqualification; consideration of the basics of procedural proceedings in cases of disqualification; identifying ways to improve the effectiveness of disqualification; development on this basis of recommendations and proposals for improving the current legislation, as well as the law enforcement activities of jurisdictional authorities in the field of application of disqualification.

Research methodology and technique.

The methodological basis of the dissertation research is the general scientific method of cognition, as well as private scientific methods: formal, historical, comparative legal, systemic-structural, system-functional, statistical, etc.

By combining the logical and historical methods of cognition, we attempted to show disqualification not as a “torn off” institution that emerged from scratch, but as a historically grounded and logically predetermined type of administrative punishment.

In the process of working on the dissertation, we widely used the methods of socio-legal research: comparative legal - when considering the relationship between disqualification and other types of administrative punishment, as well as with criminal punishment in the form of deprivation of the right to hold certain positions or engage in certain activities; statistical - when collecting and analyzing statistical data on the application of disqualification; questionnaires - when questioning judges of general jurisdiction, as well as judges of the Arbitration Court of the Krasnodar Territory.

Following the methods of induction and deduction allowed us, using knowledge about the individual elements of disqualification, to formulate the concept of this type of administrative punishment, and knowledge of the essence of disqualification specified in Art. 3.11 of the Administrative Code of the Russian Federation, allowed us to highlight and conduct a detailed analysis of the signs of the considered type of administrative punishment.

The theoretical basis of the research was formed by the works of Russian and foreign scientists, such as: A.B. Absalyamov, A.P. Alekhin, V. S. Anokhin, O. Yu. Bakaeva, D.N. Bakhrakh, E.F. Basarev, I.E. Bochkarev, I.I. Veremeenko, I.A. Galagan, V.V. Denisenko, A.C. Dugenets, M.I. Eropkin, K.-P. Sommer-mann, A.P. Klyushnichenko, Yu.M. Kozlov, A.P. Korenev, P.M. Kurdyuk, B.M. Lazarev, E.V. Lamonov, A.E. Lunev, E.B. Luparev, I.P. Maximov, V.M. Manokhin, S.M. Petrova, M.P. Petrov, A.F. Pekhterev, I.V. Panova, G.V. Polkovnikov, L.L. Popov, Yu.A. Popova, E.N. Renov, N.G. Salishchev, V.D. Sorokin, Yu.N. Starilov, M.S. Studenikina, L.V. Tumanova, S.D. Khaza-nov, N.Yu. Hamaneva, A.P. Shergin, O. M. Yakuba, G. Braban and others.

The work also used the theoretical provisions of the general theory of law, history of law, constitutional law, civil, civil procedural and arbitration law, criminal and criminal procedural law, sociology and philosophy.

The legal basis for the study was formed by legislative and other regulatory legal acts of the Russian Federation, the RSFSR, as well as legislation on the disqualification of other countries.

In preparing the dissertation, materials of the practice of applying disqualification by courts of general jurisdiction, as well as by arbitration courts, decisions of the Plenum of the Supreme and Supreme Arbitration Courts, and decisions of the Constitutional Court of the Russian Federation were used.

In order to obtain more detailed information on the application of disqualification and to obtain statistical data, we carried out work in the Judicial Department of the Russian Federation and the Judicial Department of the Krasnodar Territory to study reports on the consideration of administrative cases by federal courts of general jurisdiction and justices of the peace in the Russian Federation for 2002 and 2003. , in the Federal Service of Russia for Financial Recovery and Bankruptcy (FSFR of Russia) - on studying the register of disqualified persons (for 2002-2004), as well as in the Department for Control over the Activities of Self-Regulatory Organizations of Bankruptcy Trustees of the Ministry of Justice of Russia - on the application of disqualification by arbitration courts to bankruptcy commissioners (for 2003 - 2004).

For a deeper study of the issues of disqualification and the identification of judges' opinions on them, we conducted a survey of 189 district and justices of the peace of the Krasnodar Territory and 50 (out of 58) judges of the Arbitration Court of the Territory.

Provisions for Defense.

The following provisions are brought to the defense: 1. Disqualification, as a type of administrative punishment, in accordance with Art. 3.11 of the Code of Administrative Offenses of the Russian Federation, it is proposed to give the following definition: “Disqualification is the main type of administrative punishment imposed by a judge, in accordance with the Code of the Russian Federation on Administrative Offenses, for a period of six months to three years, applied to individuals exercising organizational and administrative or administrative and economic functions in the body of a legal entity, to members of the board of directors, as well as to persons carrying out entrepreneurial activities without forming a legal entity, including arbitration managers, and consisting in the temporary deprivation of their right to hold executive positions in the executive management body of a legal entity , to be a member of the board of directors (supervisory board), to carry out entrepreneurial activities to manage a legal entity, as well as to manage a legal entity in other cases stipulated by the legislation of the Russian Federation. "

2. In order to further develop and improve disqualification as a type of administrative punishment, we have prepared a draft federal law of the Russian Federation "On Amendments and Additions to Article 3.11 of the Code of the Russian Federation on Administrative Offenses", according to which it is proposed to outline the provisions of Part 1 of Art. 3.11 of the Code of Administrative Offenses of the Russian Federation as follows: "disqualification consists in the temporary deprivation of an individual of the right to directly or indirectly participate in the establishment or management of a legal entity", and part 3 of Art. 3.11 - "disqualification may be applied to persons performing organizational and administrative or administrative functions in the body of a legal entity or otherwise participating (directly or indirectly) in the management of a legal entity."

3. The main signs of disqualification are proposed to include:

1) disqualification is the main type of administrative punishment;

2) appointed only by a judge;

3) the cases and procedure for its application are established by the Code of Administrative Offenses of the Russian Federation;

4) is established for a period of six months to three years;

5) applies only to individuals;

6) the subjects to which it is applied must have one of the following characteristics: a) carry out organizational and administrative or administrative-economic functions in the body of a legal entity, b) be members of the board of directors, c) carry out entrepreneurial activities without forming a legal entity, d ) be arbitration managers;

7) consists in the deprivation of the following rights: a) hold managerial positions in the executive body of a legal entity, b) be a member of the board of directors (supervisory board), c) carry out entrepreneurial activities to manage a legal entity, d) manage a legal entity in other cases stipulated by the legislation of the Russian Federation.

4. It seems appropriate to expand the scope of application of disqualification in administrative law, namely: alternatively, with an administrative fine, provide for disqualification for violations in the field of consumer protection (Part 2 of Art. Part 3 of Art. 14.8 - failure to provide the consumer with benefits and advantages established by law), for misuse of budget funds (Art. 15.14) and for violation of the deadline for the return of budget funds received on a returnable basis (Art. 15.15). In our opinion, the already envisaged administrative liability for these offenses is insufficient and not very effective, and these changes can significantly increase the responsibility of "unscrupulous" managers and improve the prevention of these offenses.

5. In our opinion, not just the justices of the peace, but at least the district courts, as more competent, should appoint disqualification under Part 2 of Art. 5.27 and part 4 of Art. 14.25 (from 01.06.2005 - according to Articles 5.53 and 14.28); and under Articles 14.12, 14.13, 14.21 and 14.22 - both in relation to individual entrepreneurs and in relation to individuals (heads of organizations) who are not individual entrepreneurs, disqualification should be imposed by arbitration courts (before the creation of administrative (public) courts).

6. It is important to pay attention to the fact that most of the articles of the Code of Administrative Offenses of the Russian Federation - 14.12, 14.13, 14.21, 14.22 of the Code of Administrative Offenses of the Russian Federation, according to which disqualification can be assigned, as well as Art. 14.23 of the Code of Administrative Offenses of the Russian Federation, which is aimed at ensuring the execution of orders (decisions) on disqualification, practically do not work, since it is not determined - the officials of which bodies are authorized to draw up protocols under these articles.

In accordance with Art. 28.3 of the Code of Administrative Offenses of the Russian Federation, officials of the bodies authorized in the field of bankruptcy and financial rehabilitation may draw up protocols on these articles.1 In 2002-2003, officials of the FSFR of Russia and the Ministry of Justice of the Russian Federation managed to visit such persons. However, since the publication of the Order of the Ministry of Justice of Russia dated July 21, 2003 to the present time (that is, for more than 1.5 years), neither specific bodies nor officials authorized to draw up these protocols have been identified. The only exception is Part 3 of Art. 14.13 of the Administrative Code of the Russian Federation, according to which the Federal Registration Service (Rosregistratsiya) and its territorial body for the subject (s) of the Russian Federation - the main department (department) of the Federal Registration Service for the subject (s) of the Russian Federation, have the right to apply in the prescribed manner to the court with a statement on disqualification of the bankruptcy commissioner. 2

The resulting gap in law, of course, requires an early elimination, since the impossibility of practically attracting offenders to

1 In accordance with Art. 28.3 of the Administrative Code of the Russian Federation under Articles 14.12 and 14.13, the protocols are also authorized to be drawn up by officials of the internal affairs bodies (police), however, as practice shows, they do not use these powers.

2 Decree of the President of the Russian Federation "Issues of the Federal Registration Service" dated 13.10.2004, No. 1315 // Rossiyskaya Gazeta.-2004.-19 October; Order of the Ministry of Justice of the Russian Federation "On the approval of the general regulation on the territorial body of the Federal Registration Service for the subject (s) of the Russian Federation" "dated 03.12.2004, No. 183 // Rossiyskaya Gazeta.-2004.-15 December. administrative responsibility under these articles violates a number of basic principles, including the principle of inevitability of punishment, and also creates a dangerous atmosphere of impunity and permissiveness, which causes significant harm to citizens, society and the state.

Powers to draw up protocols under Art. 14.12, parts 1-2 of Art. 14.13 and Articles 14.21 and 14.22 of the Code of Administrative Offenses of the Russian Federation, in our opinion, taking into account the nature and specifics of relations regulated by these articles, it is necessary to assign the officials of the body that is the legal successor of most of the powers of the FSFR of Russia - the Federal Tax Service, and according to Art. 14.23 of the Administrative Code of the Russian Federation - to the Federal Registration Service (Rosregistratsiya).

7. The procedure for the execution of the order (decision) on disqualification is closely related to labor legislation and cannot be fully regulated only by the norms of the Code of Administrative Offenses of the Russian Federation. However, in the Labor Code of the Russian Federation, these issues have not been fully consolidated. In this regard, we propose to introduce a number of amendments and additions to the Labor Code of the Russian Federation, in particular:

Specify in art. 77 of the Labor Code of the Russian Federation, as one of the grounds for terminating an employment contract, a court ruling (decision) on disqualification that has entered into legal force;

Supplement Article 57 of the Labor Code of the Russian Federation with part six, where it is indicated that “In the event of an employment contract for managing a legal entity, an entry is made in it that there is no disqualification of an individual with whom this employment contract is concluded. This entry is made on the basis of an extract on the presence of a specific person's disqualification, obtained from the body that maintains the register of disqualified persons. ";

Paragraph one of the first part of Article 84 of the Labor Code of the Russian Federation should be formulated as follows: "the conclusion of an employment contract in violation of a court verdict on deprivation of the right to hold certain positions or engage in certain activities, or in violation of a court decision) on the disqualification of a specific person;". To implement these provisions, we have prepared a draft federal law on amendments and additions to the Labor Code of the Russian Federation.

8. At the present time, after the liquidation of the FSFR of Russia by the Presidential Decree of March 9, 2004, the register of disqualified persons is not maintained, since the legislator has not yet determined a new body authorized to maintain such a register. In this regard, the achievement of the main goals of disqualification - to prevent an unscrupulous citizen from managing a legal entity and performing a punitive function - may be questioned. These actions of the legislator, in our opinion, are inadmissible. It is necessary in the very near future to determine the body authorized to maintain the register of disqualified persons, and in our opinion, the Federal Registration Service (Rosregistratsiya) should become it.

The practical significance of the dissertation.

The practical significance of the study is determined by the relevance and novelty of the problem under consideration and lies in the analysis, generalization, validity of the recommendations put forward on the further development of this type of administrative punishment as disqualification. The main conclusions and recommendations of the study are essential for the development of the theory of administrative law in general, as well as for the development of such industries as arbitration procedural, civil procedural and labor law. Some provisions have already been found, and many others may still find their practical application in the activities of bodies applying disqualification. The provisions of the dissertation will be useful to judges, officials authorized to draw up protocols on cases of administrative offenses for which disqualification may be imposed, heads of legal entities and bankruptcy commissioners, and can also be used in scientific and pedagogical activities: in further theoretical studies of various problems in the area of ​​administrative responsibility and administrative penalties, when writing term papers and theses, when teaching administrative law and special courses on administrative responsibility. The provisions contained in the dissertation can contribute to the further development of the theory of administrative punishments in Russia in general, and disqualification, as one of their types, in particular, to the improvement of the legislation of the Russian Federation, and the practical application of this work.

Approbation of research results.

The main provisions, conclusions and recommendations contained in the dissertation research are set out in published scientific articles of international and All-Russian journals, collections of scientific articles and conference materials, as well as in reports at All-Russian and other scientific conferences held in Moscow, Krasnodar and Tuapse. Relevant scientific developments have been introduced into the educational process and law enforcement activities of practical units.

The main theoretical provisions of the dissertation are used when conducting seminars with students on the course "Administrative Law of the Russian Federation". The research results were reflected in 13 published scientific articles of the applicant.

The structure of the work was predetermined based on the goals and objectives of the study. The work consists of an introduction, two chapters, uniting six sections, conclusion, bibliography and appendices.

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List of dissertation research literature Kalenskiy, Pavel Valerievich, candidate of legal sciences, 2005

1. The Constitution of the Russian Federation as amended by the Decrees of the President of the Russian Federation dated 09.01.1996 No. 20, dated 10.02.1996 No. 173, dated 09.06.2001 No. 679, dated 25.07.2003 No. 841, Federal Constitutional Law dated 25.03.2004 No. 1 -FKZ.- M. Gorodets, 2004.

2. Federal Constitutional Law "On Arbitration Courts in the Russian Federation" dated April 5, 1995 // Rossiyskaya Gazeta-1995.-May 16; Rossiyskaya Gazeta-2003.-July 9.

3. Federal Constitutional Law "On the Judicial System of the Russian Federation" dated December 31, 1996; as amended by FKZ RF of 04.07.2003 // Rossiyskaya Gazeta.-1997.-6 January.

4. Federal Constitutional Law "On the Government of the Russian Federation" dated December 17, 1997; as amended by FKZ RF of 19.06.2004 // SZ RF.-1997.-No.51.-Art.5712; SZ RF.-2004.-№ 25.-St. 2478.

5. Federal Constitutional Law "On the Military Courts of the Russian Federation" FKZ of May 20, 1999 // Rossiyskaya Gazeta-1999 - June 29.

6. Civil Procedure Code of the Russian Federation of November 14, 2002; as amended by Federal Law of the Russian Federation of July 28, 2004 // SZ RF.-2002.-No. 46.-Art. 4532; SZ RF.-2004.-№ 31.-St. 3230.

7. Civil Code of the Russian Federation. M .: INFRA-M, 2004.

8. Code of the Russian Federation on Administrative Offenses of December 30, 2001; as amended by Federal Law of the Russian Federation of 25.10.2004 // SZ RF.-2002.-№ 1.-Art. 1; Rossiyskaya Gazeta. -2004.-October 28.

9. Labor Code of the Russian Federation of December 30, 2001; as amended by Federal Law of the Russian Federation of 08.22.2004 // SZ RF.-2002.-№ 1.- Art. 3; SZ RF.-2004.-№ 35.-St. 3607.

10. The Arbitration Procedure Code of the Russian Federation of July 24, 2002; as amended by Federal Law of the Russian Federation of July 28, 2004 // SZ RF.-2002.-№ 30. -St. 3012; SZ RF.-2004-№ 31.-St. 3216.

11. Federal Law "On Insolvency (Bankruptcy)" dated * September 27, 2002 // Rossiyskaya Gazeta.-2002.-November 2.

12. Federal Law "On Joint Stock Companies" dated December 26, 1995; as amended by Federal Law of the Russian Federation of 27.02.2003 // SZ RF.-1996.-№ 1.-Art. 1; Rossiyskaya Gazeta.-2003.-March 5.

13. Federal Law "On State Registration of Legal Entities and Individual Entrepreneurs" dated August 8, 2001; as amended by Federal Law of the Russian Federation of 23.12.2003 // Rossiyskaya Gazeta.-2001.-August 10; Rossiyskaya Gazeta-2003 -27 December

14. N. Federal Law "On the minimum wage" dated June 19, 2000; as amended by Federal Law of the Russian Federation from 22.08.04, // SZ RF.-2000.-№ 26.-Art. 2729; SZ RF.-2004.-№ 35.-St. 3607.

15. Law of the Russian Federation "On Appealing Actions and Decisions Violating the Rights and Freedoms of Citizens in Court" dated April 27, 1993; as amended by Federal Law of the Russian Federation of December 14, 1995 // Rossiyskaya Gazeta-May 12, 1993; Rossiyskaya Gazeta-1995.-26 December.

16. Federal Law "On Enforcement Proceedings" dated July 21, 1997; as amended by Federal Law of the Russian Federation of June 29, 2004 // Rossiyskaya Gazeta 1997.-August 5; SZ RF.-2004.-№ 27.-St. 2711.

17. Federal Law "On Justices of the Peace in the Russian Federation" dated December 17, 1998; as amended by Federal Law of the Russian Federation of August 22, 2004 // Rossiyskaya Gazeta-1998.-December 22; SZ RF.-2004.-№ 35.-St. 3607.

18. Federal Law "On Insolvency (Bankruptcy) of Credit Institutions" dated February 25, 1999; as amended by Federal Law of the Russian Federation of 08.20.2004 // Rossiyskaya Gazeta.-1999.-March 4; SZ RF.-2004.-№ 34-St. 3536.

19. Federal Law "On the Bodies of the Judicial Community in the Russian Federation" dated March 14, 2002; as amended by Federal Law of the Russian Federation of 14.08.2004 // SZ RF-2002.-№ P.-St. 1022 .; SZ RF.-2004.-№ 33.-St. 3369.

20. Federal Law "On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Adoption of the Federal Law" On Credit Histories "dated 30.12.2004 // SZ RF.-2005 - No. 1.-Art. 45.

21. Decree of the President of the Russian Federation "On the system and structure of federal executive bodies" dated March 9, 2004 No. 314; as amended by Federal Law of the Russian Federation of 09.03.2004 // SZ RF.-2004.-No. 11.- Art. 945; SZ RF.-2004.-№ 21.-St. 2023.

22. Decree of the President of the Russian Federation "Issues of the Federal Registration Service" dated 13.10.2004, No. 1315 // Rossiyskaya Gazeta.-2004.-19 October.

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