What is the responsibility provided for by law for officials. The concept and definition of an official in the legislation. The rights and obligations of an official. Features of administrative punishment measures that can be applied to an official
Shows that:
1) they are to be applied only insofar as administrative offense committed by an official. At the same time, we must not forget:
a) that the official is a natural person. In this regard, the following rules apply to the administrative responsibility of these persons:
2) an official is subject to administrative responsibility when the offense committed by him is related to:
a) in default of their official duties. The latter are most often provided for in federal laws (for example, in the Law on Civil Service, Law on Municipal Service), laws of subjects Russian Federation(for example, in the Charter of Moscow), as well as in other regulatory legal acts (for example, decrees of the President of the Russian Federation, decrees of the Government of the Russian Federation on the powers of officials of various federal bodies executive power), in all kinds of service, job descriptions, internal regulations, statutes on employee discipline, manuals, etc. regulatory legal acts. Therefore, in each case of bringing an official to administrative responsibility, it is necessary to study one or another regulatory legal act (from among the above) and make sure that the official has not fulfilled his official duties;
b) with improper performance their official duties.
Constantly;
Temporarily (for example, during the manager's vacation);
In accordance with special powers (they can be expressed in a power of attorney, in a special certificate, in an order, in constituent documents organizations, etc.);
b) performs the functions of a representative of the authorities. In other words, this person is endowed (in the manner prescribed by law, for example, the Law on the Civil Service, the Law on the FSB, the Law on the Police) with administrative powers (i.e., his instructions, orders, orders, etc. are binding on other citizens , organizations, an official) in relation to persons who are not dependent on him / her. Thus, the orders of a police officer issued in accordance with Art. 10-12 of the Law on Militia are binding on all citizens and organizations;
c) performs organizational and administrative functions (including hiring, dismissal, issues orders binding on subordinates, gives orders, manages subordinates, plans and directs their work, activities, etc.) government bodies, organs local government, The Armed Forces of the Russian Federation, other troops and military formations (for example, the Railway Troops, the formations of the Ministry of Emergency Situations of Russia, the Ministry of Justice of Russia);
d) performs (in the aforementioned bodies, troops, organizations) also administrative and economic functions (for example, signs bank documents, issues powers of attorney, organizes the use of budget funds, disposes of property in the prescribed manner);
3) to the mentioned officials The note also equates those who have committed an administrative offense in connection with the implementation of organizational and administrative and administrative functions in organizations; those. from "classic" officials this group persons differ in that they never exercise the functions of a representative of authority; in this regard, the CAO contradicts cases of creation, for example, under state bodies, local self-government bodies of all kinds of commercial and semi-commercial organizations, which allegedly perform purely technical work(for the preparation of documents, analysis of submitted documents, their execution, registration, etc.), but in fact perform (on a paid basis) functions inherent only to state bodies, local governments and other government officials (for example, they carry out state registration of rights, issue a certificate of state registration legal entity, make out foreign passports), namely:
a) heads of organizations (regardless of ownership);
b) employees of organizations. In this case, we are talking about those of them that perform administrative and economic or organizational and administrative functions:
Constantly, due to their official position (for example, Chief Accountant organizations, commercial director of JSC, first deputy general director state unitary enterprise). In practice, the question arises: are the heads of the board of directors of a JSC, the supervisory board of an LLC and other similar bodies of legal entities among such employees? Yes, if they are in labor (but not civil) relations with a legal entity, and also actually (although this is not reflected in the constituent documents) they carry out the functions mentioned above;
The specificity of the institute of responsibility of bodies and officials lies in the fact that this institute is complex, it includes protective norms of various branches of industry. Analysis of regulatory legal acts confirms the difference in approaches to the definition of the concept of "official".
Within the framework of the issue we are considering, officials should be understood only as those state and municipal employees who are endowed with administrative powers in relation to persons who are not subordinate to them in service. It is only about those employees who are usually referred to as representatives of the authorities.
The grounds for bringing officials to justice are crimes, administrative offenses, disciplinary offenses, infliction material damage, civil offenses.
All offenses committed by employees of the internal affairs bodies can be divided into two large groups: committed outside the service and committed in connection with official activities.
Offenses committed by employees of the internal affairs bodies in the service (in the service) are illegal acts (actions or inaction), expressed in non-performance or improper performance of their official (official) duties. For the commission of a crime or other offense, an employee of the internal affairs bodies can be brought to criminal, administrative, disciplinary and material liability.
Criminal liability officials and civil servants is the deprivation and restriction of rights and freedoms provided for by the Criminal Code of the Russian Federation for committing crimes, where they act as special subjects criminal liability. Their specificity is due to the special legal status, fixed by the norms administrative law... All crimes committed by these persons are united by the fact that they are associated with the use of official position. It is precisely with the status of an official that these subjects can be held criminally liable for crimes provided for by criminal legislation: violation of equality of human and civil rights and freedoms (part 2 of article 136 of the Criminal Code of the Russian Federation), violation of immunity privacy(part 2 of article 137 of the Criminal Code of the Russian Federation), violation of the inviolability of the home (part 3 of article 139 of the Criminal Code of the Russian Federation), refusal to provide information to a citizen (article 140 of the Criminal Code of the Russian Federation), abuse official powers(Art. 285 of the Criminal Code of the Russian Federation) and others. Analysis of the criminal legislation allows us to single out several groups of socially dangerous acts, for the commission of which the employees of the internal affairs bodies, due to improper performance of official duties, bear criminal responsibility.
The first group is formed by crimes against state power and the interests of the civil service. Such acts are considered abuse of office, their excess, appropriation of the powers of an official, bribe-taking, bribe-giving, official forgery, negligence (Articles 285-293 of the Criminal Code of the Russian Federation).
Another group is formed by crimes against justice. These are acts under Art. Art. 299-304, 310-312, 315, 316 of the Criminal Code of the Russian Federation: bringing a knowingly innocent person to criminal liability, unlawful release from criminal liability, unlawful detention, detention or detention, falsification of evidence, provocation of a bribe, disclosure of data preliminary investigation, concealment of crimes and some others.
Criminal liability entail socially dangerous acts of a police officer, encroaching on constitutional rights and freedom of citizens. Their specific types are: violation of privacy, violation of privacy of correspondence, telephone conversations, postal, telegraph and other messages, violation of the inviolability of the home, refusal to provide information to a citizen, obstruction of a meeting, meeting, demonstration, procession, picketing or participation in them (Articles 137-140, 149 of the Criminal Code of the Russian Federation).
Administrative responsibility... In Art. 2.4 of the Code of Administrative Offenses of the Russian Federation stipulates that an official is subject to administrative responsibility if he commits an administrative offense in connection with non-performance or improper performance of his official duties. Administrative responsibility of officials occurs in cases when the rights and freedoms of citizens are violated by their actions or inaction. The Code of Administrative Offenses of the Russian Federation provides for a wide range of compositions of such violations, the subjects of which are officials. For example, this is an obstruction of the citizen's exercise of his electoral rights; violation of labor legislation and its protection; obstruction of a meeting, demonstration; illegal withdrawal of a passport; obstruction of the exercise of the right of citizens to freedom of conscience, violation of the rules for considering citizens' appeals.
Officials are subject to administrative liability on the grounds established by the Code of Administrative Offenses of the Russian Federation (Article 2.4) and the laws of the constituent entities of the Russian Federation. Thus, the types of administrative offenses in accordance with the Law of the Moscow Region are: unlawful refusal to accept or consider applications from citizens (Article 4), violation of the terms for consideration of citizens' applications (Article 5), making a knowingly unfounded and (or) illegal decision on applications from citizens (v. 6).
In accordance with Art. 2.5 of the Code of Administrative Offenses of the Russian Federation, employees of internal affairs bodies for administrative offenses bear disciplinary responsibility in accordance with the regulatory legal acts regulating the order of service in the indicated bodies. For a number of offenses (violation of the legislation on elections and referendums, in the field of ensuring the sanitary and epidemiological well-being of the population, the rules road traffic, customs regulations and others) they are responsible on a general basis.
Disciplinary responsibility occurs when an official, civil servant violates the official duties assigned to them, including ensuring the observance and protection of rights and legitimate interests citizens.
General provisions on disciplinary liability are enshrined in the Labor Code of the Russian Federation, where Art. 192 a list of disciplinary sanctions is given. Compositions disciplinary offenses fixed in it in the very general view and are concretized in other regulatory legal acts... Thus, customs officials bear disciplinary responsibility for unlawful decisions, actions (inaction) in accordance with the Federal Law “On Service in customs authorities Of the Russian Federation ", as well as in accordance with the Labor Code of the Russian Federation and the legislation of the Russian Federation on public service, Disciplinary Charter of the Customs Service of the Russian Federation.
Disciplinary liability issues are also regulated by the legislation on the state civil service. So, in particular, Art. 57 of the Federal Law "On the State Civil Service of the Russian Federation" measures of disciplinary sanction are established, to which the law includes: a remark, a reprimand, a warning about incomplete official compliance, dismissal from a substituted position civil service, dismissal from the civil service.
Servicemen bear disciplinary responsibility on the basis and in accordance with the procedure established by the Disciplinary Regulations of the Armed Forces of the Russian Federation.
Employees of the internal affairs bodies are brought to disciplinary responsibility in accordance with the Disciplinary Charter of the Internal Affairs Bodies, approved by the President of the Russian Federation.
Disciplinary action may be imposed by an official who is authorized to appoint officers of the internal affairs bodies.
To officials acting in the framework of employment contract, can be applied material liability... The material responsibility of an employee is understood as “the obligation of the employee, guilty illegal actions which caused direct actual property damage, to compensate it in the amount and in the manner prescribed by labor legislation. " Material liability employer is established by Art. 234-237 Labor Code RF. These articles provide for the following grounds for the employer's financial liability: for loss of earnings due to the illegal deprivation of an employee of the opportunity to work (Article 234); for the delay wages and other payments (Article 236); for damage caused to the employee's property (Article 235); per moral injury inflicted on the employee (Article 237).
Material liability, unlike other types legal responsibility civil servants is of a restorative nature. It occurs for causing material damage to the organization and is expressed in compensation for the harm caused to the perpetrators.
Material liability, as a rule, is limited: employees, through whose fault the damage was caused, bear it in the amount of direct damage, but not more than their average monthly earnings. Full material responsibility means that the damage is compensated in full. It occurs if, for example, damage was caused not in the performance of official duties, when the employee was drunk, when an agreement on full liability was concluded with him.
It should also be noted that the legislation on civil service does not establish any specifics in bringing civil servants to financial liability for damage caused by them to the relevant state body and determining its limits in comparison with the Labor Code of the Russian Federation. With this in mind labor legislation regulating the material liability of employees, by analogy with the law, it can be extended to civil servants.
A similar situation is developing in relation to employees of the internal affairs bodies. In Definition The Supreme Court Of the Russian Federation of December 26, 2005 in case No. 78-G05-72, it is noted that the legislation of the Russian Federation on labor applies to legal relations arising in connection with the service in the internal affairs bodies, in cases provided for by special legal acts, or then, when these legal relations are not regulated by them and the application of the norms of the Labor Code of the Russian Federation by analogy is required.
Since there is currently a special normative act about material responsibility police officers is absent, labor law norms are applicable to employees of internal affairs bodies, providing for general provisions on the material liability of the parties to the labor contract (Chapter 37 of the Labor Code of the Russian Federation), as well as establishing the material liability of both the employee to the employer (Chapter 39 of the Labor Code of the Russian Federation) and the employer to the employee (Chapter 38 of the Labor Code of the Russian Federation).
Material liability of employees of internal affairs bodies in accordance with the norms of labor legislation can be of two types: limited or full.
The employees of the internal affairs bodies guilty of causing damage bear limited financial liability in the amount of direct damage, but not more than their average monthly earnings (Article 241 of the Labor Code of the Russian Federation).
In full, the employees of the internal affairs bodies are compensated for the damage in the following cases (Article 243 of the Labor Code of the Russian Federation): when the employee is fully liable for damage caused in the performance of labor (official) duties; shortage of valuables entrusted to him on the basis of a special written contract or received by him under a one-time document; deliberately inflicting damages, etc.
The material liability of an employee of an internal affairs body does not exclude his disciplinary or criminal liability.
Bodies of executive power, local self-government bear civil liability for harm caused to a citizen as a result of his illegal actions (inaction). The harm is subject to compensation at the expense of the treasury of the Russian Federation, the treasury of the constituent entity of the Russian Federation or the treasury of the municipal formation, respectively.
The treasury is understood as property belonging to the Russian Federation (subject of the Russian Federation, municipal formation), which is not assigned to specific state (municipal) enterprises or institutions. First of all, the treasury includes the funds of the corresponding budgets, which are managed by the bodies of the Ministry of Finance of the Russian Federation, financial authorities subjects of the Russian Federation and municipalities.
The right of citizens to compensation for damage caused illegal actions executive power and their officials, is considered in a separate issue... We only note that officials whose illegal actions (inaction) have caused harm in the sense of Art. 1069 of the Civil Code of the Russian Federation, they do not bear responsibility to individuals and legal entities. Claims for damages in this case they cannot be applied to them, since officials are not subjects civil law... According to Art. 2 of the Civil Code of the Russian Federation by participants in regulated civil law relations are citizens and legal entities, and the official himself can be held liable.
At the same time, the Russian Federation, a constituent entity of the Russian Federation or municipality who reimbursed injured, have the right of recourse to the direct tortfeasor in the amount of the compensation paid, unless a different amount is established by legislation, in particular, labor legislation.
The harm caused to citizens and (or) organizations by an employee of the internal affairs bodies is subject to compensation in the manner prescribed by civil law.
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.
Note. An official in this Code should be understood as a person who permanently, temporarily or in accordance with special powers exercising the functions of a representative of the authorities, that is, endowed in the manner prescribed by law with administrative powers in relation to persons who are not in official dependence on him, as well as a person performing organizational and administrative or administrative and economic functions in state bodies, bodies of state extra-budgetary funds of the Russian Federation, local government bodies, state and municipal organizations, as well as in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation. Heads and other employees of other organizations, bankruptcy administrators, as well as those who have committed administrative offenses, who have committed administrative offenses in connection with the performance of organizational and administrative or administrative and economic functions, provided for in Articles 9.22, 13.25, 14.24, 14.25, 14.55, 14.56, part 3 of Articles 14.57, 14.61, 14.63, 14.64, 15.17 - 15.22, 15.23.1, 15.24.1, 15.25, 15.26.1, 15.26.2, 15.29 - 15.31, 15.37 , 15.38, part 9 of article 19.5, articles 19.7.3, 19.7.12 of this Code, members of boards of directors (supervisory boards), collegial executive bodies(boards, directorates), counting commissions, audit commissions (auditors), liquidation commissions of legal entities and heads of organizations exercising the powers of sole executive bodies of other organizations, individuals who are founders (participants) of legal entities, heads of organizations exercising the powers of sole executive bodies organizations that are founders of legal entities bear administrative responsibility as officials. Persons performing the functions of a member of the commission for the procurement of goods, works, services to ensure state and municipal needs, contract managers, employee contract service who have committed the administrative offenses provided for by Articles 7.29 - 7.32, 7.32.5, Parts 7, 7.1 of Article 19.5, Article 19.7.2 of this Code shall bear administrative responsibility as officials. Persons performing functions of organizing and carrying out procurement in accordance with the legislation of the Russian Federation in the field of procurement of goods, works, services separate types legal entities, including members of the procurement commission, who have committed administrative offenses provided for in Article 7.32.3, Part 7.2 of Article 19.5, Article 19.7.2-1 of this Code, bear administrative responsibility as officials. Persons performing the functions of a member of the licensing commission and having committed an administrative offense provided for in Article 19.6.2 of this Code shall bear administrative responsibility as officials. Persons carrying out entrepreneurial activity without the formation of a legal entity, those who have committed administrative offenses shall bear administrative responsibility as officials, unless otherwise established by this Code. Persons carrying out the functions of organizing and conducting mandatory tenders in accordance with the legislation of the Russian Federation, including members of the tender commission, the auction commission, who have committed administrative offenses provided for in Article 7.32.4 of this Code, bear administrative responsibility as officials. Persons carrying out activities in the field of fire risk assessment (audit fire safety) who have committed administrative violations provided for in part 9 of Article 20.4 of this Code, bear administrative responsibility as officials. Individuals carrying out activities in the field of expertise in the procurement of goods, works, services to meet state and municipal needs, who have committed an administrative offense provided for in Article 7.32.6 of this Code, bear administrative responsibility as officials.
Commentary on Art. 2.4 Administrative Code of the Russian Federation
1. The commented article provides for cases when an individual is brought to administrative responsibility as an official. Required condition for this - the commission by such a person of an administrative offense in connection with non-performance or improper performance of his official duties.
A note to the commented article gives a definition of the concept of "official", as well as some clarifications to determine the status of an official when measures are imposed on him administrative penalty as such.
An official in the Code should be understood as a person who permanently, temporarily or in accordance with special powers fulfills the functions of a representative of the authorities, that is, endowed in the manner prescribed by law with administrative powers in relation to persons who are not in official dependence on him, as well as a person who performs organizationally - administrative or administrative-economic functions in state bodies, local self-government bodies, state and municipal organizations, as well as in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation. Officials should also include:
1) persons who have committed administrative offenses in connection with the performance of organizational and administrative or administrative and economic functions, heads and other employees of other organizations, arbitration managers, as well as who have committed administrative offenses provided for in Articles:
13.25 - Violation of the requirements of the legislation on the storage of documents;
14.24 - Violation of the legislation on organized trading;
14.55 - Violation of conditions government contract for a state defense order or the terms of an agreement concluded in order to fulfill the state defense order;
15.17 - Unfair issue valuable papers;
15.18 - Illegal transactions with equity securities;
15.19 - Violation of legal requirements regarding the presentation and disclosure of information on financial markets;
15.20 - Obstruction of the exercise of rights certified by securities;
15.21 - Misuse of insider information;
15.22 - Violation of the rules for maintaining the register of securities owners;
15.23.1 - Violation of the requirements of the legislation on the procedure for preparation and conduct general meetings shareholders, participants of limited (additional) liability companies and owners of investment shares of closed-end mutual investment funds;
15.24.1 - Illegal issuance or circulation of documents certifying monetary and other obligations;
15.29 - Violation of the requirements of the legislation of the Russian Federation related to activities professional participants the securities market, clearing organizations, persons performing the functions of a central counterparty, joint stock investment funds, non-state pension funds, management companies of joint-stock investment funds, mutual investment funds or non-state pension funds, specialized depositories of joint-stock investment funds, mutual investment funds or non-state pension funds,
15.30 - Market manipulation;
15.31 - Illegal use of the words "investment fund" or phrases formed on their basis;
15.37 - Gross violation of the rules for maintaining separate accounting of the results of financial and economic activities;
Bank of Russia;
19.7.3 - Failure to submit information to the Bank of Russia.
At the same time, officials include members of boards of directors (supervisory boards), collegial executive bodies (boards, directorates), counting commissions, audit commissions (auditors), liquidation commissions of legal entities and heads of organizations exercising the powers of sole executive bodies of other organizations;
2) persons performing the functions of a member of the commission for the procurement of goods, works, services to meet state and municipal needs, contract managers, contract service workers who have committed administrative offenses provided for in Articles:
7.29 - Failure to comply with the requirements of the legislation of the Russian Federation on contract system in the field of procurement of goods, works, services to meet state and municipal needs when deciding on the method and conditions;
7.29.1 - Violation of the procedure for determining the initial (maximum) price of a state contract for a state defense order or the price of a state contract when placing a state defense order;
7.29.2 - Refusal or Evasion sole supplier(performer, contractor) from the conclusion of a state contract under a state defense order;
7.30 - Violation of the procedure for the procurement of goods, works, services to meet state and municipal needs;
7.31 - Violation of the procedure for maintaining a register of contracts concluded by customers, a register of contracts containing information constituting state secret, registry unscrupulous suppliers(contractors, executors);
7.31.1 - Violation of the order and (or) terms of return Money entered as security for applications for participation in determining the supplier (contractor, executor), the procedure and (or) the timing of blocking transactions on the account of the procurement participant, the procedure for maintaining the register of participants electronic auction accredited on the electronic site, the rules of document flow when conducting an electronic auction, disclosure by the operator electronic platform, an official of the operator of the electronic platform of information about the procurement participant before summing up the results of the electronic auction;
7.32 - Violation of the procedure for concluding, changing the contract;
h. 7, 7.1 of Article 19.5 - Failure to comply by an official of a customer, an official of an authorized body, an official of an authorized institution, a member of the procurement commission, an operator of an electronic site, specialized organization within the prescribed period of a legal order, the requirements of the body authorized to exercise control in the field of procurement, and failure to comply within the established period of a legal order or requirement federal body the executive power exercising the functions of control and supervision in the field of the state defense order, or its territorial body;
19.7.2 - Failure to submit information or submission of deliberately false information to the body authorized to exercise control over the procurement of goods, works, services to meet state and municipal needs;
3) persons engaged in entrepreneurial activity without forming a legal entity who have committed administrative offenses. It should be borne in mind that bringing such persons to administrative responsibility as officials is allowed only for offenses committed by them in connection with the implementation of entrepreneurial activities.
Law enforcement practice is faced with many questions when determining the subject of administrative responsibility - to prosecute for a committed act as an official or as a citizen. Today, there are a number of departmental regulations that provide appropriate explanations.
So, the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 24, 2006 N 18 "On some issues arising from the courts when applying the Special Part of the Code of the Russian Federation on Administrative Offenses" in terms of questions on the application of Chapter 14 of the Special Part of the Code of the Russian Federation on Administrative Offenses, the following explanations were given in order determination of the subjects of administrative responsibility. As subjects of administrative responsibility, the provisions of Chapter 14 of the Code of Administrative Offenses of the Russian Federation provide for citizens, officials and legal entities, individual entrepreneurs. Officials who can be brought to administrative responsibility for offenses in the field of entrepreneurial activity, based on the provisions enshrined in the note to Art. 2.4 of the Code of Administrative Offenses of the Russian Federation, are the heads and other employees of organizations who have committed such offenses in connection with their performance of organizational and administrative or administrative-economic functions, as well as individual entrepreneurs equated to them insofar as Chapter 14 of the Code of Administrative Offenses of the Russian Federation does not provide otherwise (part 2 of Art. . 14.4,). The officials include persons who are in labor relations with individual entrepreneurs performing the above functions. Persons not endowed with organizational and administrative or administrative and economic functions, working in an organization or at individual entrepreneur(for example, sellers, cashiers), can also be brought to administrative responsibility as citizens in connection with their commission of offenses under Art. Art. 14.2, 14.4, 14.7, 14.15 of the Administrative Code of the Russian Federation.
It should be noted that the Federal Law of 05.05.2014 N 122-FZ supplemented the note to the commented article 2.4 with a new fourth sentence of the following content: certain types of legal entities, including members of the procurement commission, who have committed administrative offenses provided for in Article 7.32.3, Article 19.7.2-1 of this Code, bear administrative responsibility as officials. "
Methodological recommendations on the procedure for bringing to administrative responsibility persons who have committed administrative offenses attributed to jurisdiction FSSP of Russia, approved by the FSSP of Russia, dated 04.06.2012 N 07-12, give definitions of the corresponding concepts.
The subject of an administrative offense is a person who has committed an administrative offense.
An individual is a person who has reached the age of 16 at the time of the commission of an administrative offense.
An official is a person who permanently, temporarily or in accordance with special powers fulfills the functions of a representative of the authorities, i.e. endowed in the manner prescribed by law with administrative powers in relation to persons who are not in official dependence on him, as well as a person performing organizational and administrative or administrative functions in state bodies, local self-government bodies, state and municipal organizations, as well as in the Armed Forces RF, other troops and military formations of the RF. The same category includes persons engaged in entrepreneurial activities without forming a legal entity (Article 2.4 of the Administrative Code of the Russian Federation).
Along with the administrative responsibility of legal entities of the Code of Administrative Offenses of the Russian Federation, the responsibility of their officials is widely provided. In accordance with Art. 2.4 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.
As you know, officials bear other types of legal responsibility, in particular criminal. In criminal law, officials are understood as persons who permanently, temporarily or by special authority perform the functions of a representative of the authorities or perform organizational and administrative and administrative functions in state bodies, local self-government bodies, state and municipal institutions, as well as in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation. An independent chapter is actually devoted to the crimes of officials. Chapter 30 of the Criminal Code of the Russian Federation.
The concept of an official as a subject of responsibility in the legislation on administrative offenses is much broader than in criminal legislation.
According to Art. 2.4 of the Code of Administrative Offenses of the Russian Federation, an official should be understood as a person who permanently, temporarily or in accordance with special powers exercising the functions of a representative of the authorities, i.e. endowed in the manner prescribed by law with administrative powers in relation to persons who are not in official dependence on him, as well as a person performing organizational and administrative or administrative functions in state bodies, local self-government bodies, state and municipal organizations, as well as in the Armed Forces RF, other troops and military formations of the RF.
At the same time, heads and other employees of other organizations, as well as persons carrying out entrepreneurial activities without forming a legal entity, who have committed administrative offenses in connection with the performance of organizational and administrative or administrative and economic functions, bear administrative responsibility as officials (unless otherwise provided by law).
Thus, officials as subjects of administrative responsibility include not only persons holding state and municipal offices, and persons performing organizational and administrative and administrative functions in state and municipal institutions, but also the heads of all other organizations, as well as other employees performing organizational and administrative or administrative and economic functions in them.
Once again, we note that officials as subjects of administrative responsibility of the Code of Administrative Offenses The Russian Federation generally includes persons engaged in entrepreneurial activities without forming a legal entity. This provision of Art. 2.4 of the Code causes a lot of controversy and criticism. It would seem that persons carrying out entrepreneurial activities without forming a legal entity are far from officials in terms of their tortological characteristics. Unlawful acts of persons engaged in entrepreneurial activity without forming a legal entity, based on the composition of the offenses committed, the motives and nature of these acts, by their tortological nature are more likely to resemble the acts of legal entities.
In this regard, apparently, it is no coincidence that the legislator gradually began to move away from identification as subjects of administrative responsibility of officials and persons carrying out entrepreneurial activities without forming a legal entity. On the contrary, in a number of particular cases the responsibility of the latter came to be regarded as the responsibility of legal entities.
For example, in the footnote to Art. 16.1 of the Code of Administrative Offenses of the Russian Federation, a record appeared that for the administrative offenses provided for by Chapter 16 of the Code, persons engaged in entrepreneurial activities without forming a legal entity are administratively liable as legal entities. Of the Code of Administrative Offenses of the Russian Federation was supplemented with article 7.34 "Violation of the terms and procedure for reissuing the right of permanent (unlimited) use land plots for the right to lease land plots or the terms and procedure for acquiring ownership of land plots ”. The note to this article also states that for the administrative offenses provided for by this article, persons carrying out entrepreneurial activities without forming a legal entity are administratively liable as legal entities. It seems that such a concept will develop.
Considering the issues of administrative responsibility of legal entities, we have already talked about the economic reasons for approbation of the Code of Administrative Offenses of the Russian Federation, the laws of the constituent entities of the Russian Federation on administrative offenses of the institution of administrative responsibility of legal entities, the qualification of a significant number of acts committed by them as offenses, the establishment of rather strict appropriate administrative sanctions. The same reasons make it necessary to consider a large number of unlawful acts of officials as administrative offenses. various bodies and business entities, as well as persons engaged in entrepreneurial activities without forming a legal entity.
Out of 442 articles of the Code of Administrative Offenses RF, constituting its Special Part, the administrative responsibility of officials is established in 330 articles (in 75% of articles of the Special Part).
Administrative offenses of officials are misdemeanors related to their participation in the entrepreneurial and organizational and economic activities of legal entities.
These are, first of all, administrative offenses:
Encroaching on the rights of citizens (out of 55 articles included in Chapter 5 of the Code of Administrative Offenses of the Russian Federation, 50 articles provide for the responsibility of officials);
In the field of property protection (out of 33 articles included in Chapter 7 of the Code of Administrative Offenses of the Russian Federation, 29 articles provide for the responsibility of officials);
In the field of environmental protection natural environment and nature management (out of 41 articles included in Chapter 8 of the Code of Administrative Offenses of the Russian Federation, 38 provide for the responsibility of officials);
In industry, construction and energy (out of 14 articles included in Chapter 9 of the Code of Administrative Offenses of the Russian Federation, all provide for the responsibility of officials);
IN agriculture, veterinary medicine and land reclamation (out of 14 articles included in Chapter 10 of the Code on Administrative Offenses of the Russian Federation, all of them provide for the responsibility of officials);
In the field of communications and information (out of 24 articles included in Chapter 13 of the Code of Administrative Offenses of the Russian Federation, 23 provide for the responsibility of officials);
In the field of entrepreneurial activity (out of 32 articles included in Chapter 14 of the Code of Administrative Offenses of the Russian Federation, all provide for the responsibility of officials);
In the field of finance, taxes and fees, the securities market (out of 28 articles included in Chapter 15 of the Code of Administrative Offenses of the Russian Federation, 27 provide for the responsibility of officials);
IN customs sphere(out of 23 articles included in Chapter 16 of the Code of Administrative Offenses of the Russian Federation, 21 provide for the responsibility of officials);
Encroaching on the institutions of state power (out of 15 articles included in Chapter 17 of the Code of Administrative Offenses of the Russian Federation, 10 provide for the responsibility of officials);
Against the order of management (out of 27 articles included in Chapter 19 of the Code of Administrative Offenses of the Russian Federation, 19 provide for the responsibility of officials);
In the area of military registration(out of 7 articles included in Chapter 21 of the Code of Administrative Offenses of the Russian Federation, 4 provide for the responsibility of officials).
Of the 313 articles contained in these chapters of the Code of Administrative Offenses of the Russian Federation, 281 articles (which is 90% of the articles) establish the responsibility of officials.
The laws of the constituent entities of the Russian Federation, in addition to the Code of Administrative Offenses of the Russian Federation, have already established a significant number of administrative offenses by officials related to their failure to comply with the rules and norms provided for by the regulatory legal acts of these entities. Taking into account the provision of the Constitution of the Russian Federation that the rights and freedoms of man and citizen can be limited only federal laws, and based on the presence of many regional features in the activities of economic entities, it becomes obvious that the legislation of the constituent entities of the Russian Federation on administrative offenses will mainly develop both by increasing the number of offenses of organizations (as mentioned above) and officials of these organizations, entrepreneurs without forming a legal entity.
At the same time, as already noted when considering the administrative responsibility of legal entities, the imposition of punishment for the corresponding offense of the organization does not exempt the guilty official from the simultaneous administrative responsibility for the offense.
Among the punishments imposed on officials in addition to administrative fine we will indicate, first of all, the disqualification. In some cases, the confiscation of the instrument of committing or the subject of an administrative offense is used. For example, the production or circulation of ethyl alcohol, alcoholic or alcohol-containing products that do not meet the requirements state standards, sanitary regulations and hygiene standards, (Article 6.14 of the Administrative Offenses Code of the Russian Federation) may entail the appointment of an administrative fine to officials in the amount of four thousand to five thousand rubles with confiscation of ethyl alcohol, alcoholic and alcohol-containing products used for the production of ethyl alcohol, alcoholic or alcohol-containing products, equipment, raw materials, semi-finished products and other items.
Violation of the rules for the extraction, fishing of aquatic biological resources and their protection or the conditions of the license for the use and fishing of aquatic biological resources inland sea waters, territorial sea, continental shelf, exclusive economic zone RF (part 2 of article 8.17 of the Administrative Code of the Russian Federation) may entail the appointment of an administrative fine to officials in the amount of one to one and a half times the cost of aquatic biological resources, which were the subject of an administrative offense, with the confiscation of the vessel and other instruments of committing this administrative offense. There are many more similar examples.
Of course, confiscation is mainly assigned to persons engaged in entrepreneurial activity without forming a legal entity, who, as mentioned above, are mainly considered in the Code of Administrative Offenses of the Russian Federation as officials. Persons carrying out entrepreneurial activities without forming a legal entity are also subject to such punishment as administrative suspension of activities. For example, for violation of fire safety requirements, these persons are assigned a fine in the amount of one thousand to two thousand rubles or an administrative suspension of activities for up to ninety days (part 1 of article 20.4 of the Code of Administrative Offenses of the Russian Federation).
IN law enforcement practice there are also cases of appointment to officials administrative arrest... This is due to their punishment under Part 1 of Art. 20.25 of the Code of Administrative Offenses of the Russian Federation for failure to pay the previously assigned administrative fine within the prescribed period.
Note. An official in this Code should be understood as a person who permanently, temporarily or in accordance with special powers exercising the functions of a representative of the authorities, that is, endowed in the manner prescribed by law with administrative powers in relation to persons who are not in official dependence on him, as well as a person performing organizational and administrative or administrative and economic functions in state bodies, bodies of state extra-budgetary funds of the Russian Federation, local government bodies, state and municipal organizations, as well as in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation. Heads and other employees of other organizations, bankruptcy administrators who have committed administrative offenses in connection with the performance of organizational and administrative or administrative and economic functions, as well as those who have committed administrative offenses provided for, 13.25, 14.24, 14.25, 14.55, 14.56, Part 3 of Articles 14.57, 14.61, 14.63, 14.64, 15.17 - 15.22, 15.23.1, 15.24.1, 15.25, 15.26.1, 15.26.2, 15.29 - 15.31, 15.37, 15.38, part 9 of Article 19.5, 19.7.12 of this Code, members of boards of directors (supervisory councils), collegial executive bodies (boards, directorates), counting commissions, audit commissions (auditors), liquidation commissions of legal entities and heads of organizations exercising the powers of sole executive bodies of other organizations, individuals who are founders (participants) of legal entities, heads of organizations exercising the powers of the sole executive bodies of the organization s, who are founders of legal entities, bear administrative responsibility as officials. Persons performing the functions of a member of the commission for the procurement of goods, works, services to meet state and municipal needs, contract managers, an employee of the contract service who have committed the administrative offenses provided for - 7.32, 7.32.5, parts 7, 7.1 of Article 19.5, Article 19.7. 2 of this Code are administratively responsible as officials. Persons performing the functions of organizing and carrying out procurement in accordance with the legislation of the Russian Federation in the field of procurement of goods, works, services by certain types of legal entities, including members of the procurement commission who have committed administrative offenses provided for in Article 7. 32.3, part 7.2 of article 19.5, article 19.7.2-1 of this Code, bear administrative responsibility as officials. Persons performing the functions of a member of the licensing commission and having committed an administrative offense provided for in Article 19.6.2 of this Code shall bear administrative responsibility as officials. Persons carrying out entrepreneurial activities without forming a legal entity who have committed administrative offenses shall bear administrative responsibility as officials, unless otherwise established by this Code. Persons carrying out the functions of organizing and conducting mandatory tenders in accordance with the legislation of the Russian Federation, including members of the tender commission, the auction commission, who have committed administrative offenses provided for in Article 7.32.4 of this Code, bear administrative responsibility as officials. Persons carrying out activities in the field of fire risk assessment (fire safety audit) who have committed administrative violations provided for in part 9 of Article 20.4 of this Code shall bear administrative responsibility as officials. Individuals carrying out activities in the field of expertise in the procurement of goods, works, services to meet state and municipal needs, who have committed an administrative offense provided for in Article 7.32.6 of this Code, bear administrative responsibility as officials.