What is the administrative responsibility of officials. The concept and definition of an official in the legislation. The rights and obligations of an official. Official offenses

Secondly, an official is a citizen who has organizational and administrative, administrative and economic powers in various states. bodies, municipalities, army.

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

Citizens who are not officials but bear the same administrative responsibility

Citizens with similar responsibilities include:

Managers and employees of companies who have committed violations in the exercise of organizational and managerial, administrative and economic powers.
Arbitration managers.
Members of the boards of directors of organizations, collegial bodies, counting and auditing commissions, commissions for the abolition of legal entities, as well as founders of companies (only for certain types of offenses, for example, under Art. 19.7.12 of the Administrative Code of the Russian Federation).
Members of commissions in the implementation of public procurement, contract managers (only for some compositions of the Code of Administrative Offenses of the Russian Federation, for example, under Art. 19.7.2).
Organizers of public procurement, persons conducting them, as well as members of procurement commissions (only for some articles, for example, Article 7.32.3 of the Administrative Code of the Russian Federation).
Members of the commissions for licensing activities (only under Art. 19.6.2 of the Code of Administrative Offenses of the Russian Federation).
SP, unless other rules are established by special legislative norms.
Individual entrepreneurs who committed punishable acts in connection with non-performance or improper performance job duties(Clause 14 of the Resolution of the Plenum of the RF Armed Forces "On some issues ..." dated 24.10.2006 No. 18).
The organizers of the auction, as well as the persons conducting the auction (only under Art. 7.32.4 of the Administrative Offenses Code of the Russian Federation).

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

Procedural order and terms of attraction officials to general administrative responsibility, the administrative law does not provide for any special procedures. The statute of limitations for the imposition of punishments is also similar (Article 4.5 of the Administrative Code of the Russian Federation).

The step-by-step procedure is as follows:

Production excitement. The list of reasons for this is listed in Art. 28.1 of the Administrative Code of the Russian Federation. By general rule, provided for in paragraph 1 of Art. 28.2 of the Code of Administrative Offenses of the Russian Federation, when initiating the procedure, a protocol is drawn up (exceptions are cases when the prosecutor initiates the case, the violation is automatically filmed and in some other cases).
The protocol is submitted for consideration.
The case is being considered, based on the results, a decision is made to prosecute or to terminate the proceedings.

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

Features of bringing officials to administrative responsibility

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

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The features of the administrative responsibility of officials include:

The need to prove their status, for example, the fact of work in the company, the presence of certain duties that are not performed properly.
The obligatory presence in the sanction of an indication that it is an official who can be held liable under it. For example, in the sanction of Part 3 of Art. 12.23 of the Administrative Code of the Russian Federation expressly states that violation of the requirements for the carriage of children established by the Rules road traffic, entails a fine for the category of persons in question in the amount of 25,000 rubles.
A limited list of penalties (we will highlight this point in more detail later).
The impossibility of bringing to responsibility if the official properly performed his duties. Accordingly, law enforcement officers are always required to verify specific powers, job descriptions etc. and the compliance of the actions of officials with their requirements.

Features of administrative punishment measures that can be applied to officials

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

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

deprivation of rights;
arrest;
expulsion;
suspension of activities;
compulsory work;
a ban on visiting places where competitions are held.

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

More about all types administrative penalties can be read in the article "The concept and types of administrative responsibility» .

Can an official be brought to administrative responsibility after dismissal from service (dismissed at the time of the consideration of the case)

Anyone can quit or move to another position. Is it possible to bring a dismissed official to administrative responsibility if, during the consideration of the case, he has already lost the relevant status?

The answer to this question is given in the Review of the practice of the RF Armed Forces dated September 27, 2006 (question 10). The Supreme Court concluded that the dismissal does not exempt from liability, since the violation was committed during the period of performance of duties. At the time of the commission of the act, there were all the signs of the composition of the violation, respectively, the official should be held liable.

Thus, officials are special subjects of administrative responsibility who are involved in it in a general manner, but with some peculiarities provided for by the Code of Administrative Offenses of the Russian Federation.

It will also be interesting for you to familiarize yourself with the materials that we have written specifically for our

We all often hear about certain officials holding high positions and performing important functions. Who are they and how do they differ from ordinary citizens? The answer to this question is provided by the Russian Administrative Code- Administrative Code. Officials, their status and responsibilities will be discussed in this article.

Official concept

A Russian citizen performing the functions of a representative of the government is called an official. Moreover, the power does not have to be state. A person can acquire the status in question by occupying a commanding position in a public institution, party, enterprise, or even in a production organization. In most cases, the functions carried out by an official are closely related to administrative and economic and organizational and administrative activities.

There are several definitions of the term "official". The Code of Administrative Offenses of the Russian Federation says about an individual who has committed an administrative offense. Of the Criminal Code of the Russian Federation indicates criminal offense, and the Civil Code of the Russian Federation - on civil relations... If we look at the concept through the prism of the Russian elite, then we are talking about a representative of the body of state power of the Russian Federation. Next, we should consider the definition provided by the Russian Administrative Code.

Official: Art. 2.4 Administrative Code of the Russian Federation

The Administrative Code of Russia provides an exhaustive definition of the concept presented. According to the law, an official is understood as a citizen who is endowed with certain powers in the manner prescribed by law. The person extends his functions to citizens who are not in service dependence on him.

Officials, as defined by the Code of Administrative Offenses, carry out functions of an administrative and economic and administrative and organizational nature. Such persons can exercise their powers in the following public spheres:

the Russian Armed Forces;
instances local government;
state and municipal organizations.

Persons who violate the duties and powers assigned to them will be punished in accordance with articles of the Administrative Code"On officials". Some of these articles will be discussed in detail below.

On the status of an official

Who is the official under the Code of Administrative Offenses of the Russian Federation? It is possible to answer this question, but only having previously determined the status of the person. To do this, you need to pay attention to the legal regulation of the assigned powers. At the same time, the status does not depend on the objective implementation of the functions performed.

An official has the right to exercise the rights entrusted to him, or to refrain from them. However, a citizen cannot refuse duties. Thus, in this area, an equal ratio of imperative and dispositive principles prevails. In administrative law, it is possible to identify private and public activities that are under the jurisdiction of an official. It should be noted that such an identification is possible only in the sphere administrative law... Thus, in the criminal sphere, a person has the ability to exercise only public powers.

Features of an official in administrative law

The Code of Administrative Offenses establishes the types of responsibility for both legal entities and officials. In most cases, sanctions are imposed on a citizen for improper performance of duties, or for their complete failure to fulfill them.

Officials can be held accountable both in the administrative area and in any other. In particular, it will not be uncommon for a citizen to be sentenced in accordance with criminal law. In the legislation of the criminal type, officials are understood as citizens who temporarily or permanently exercise the functions of a representative of authority. Chapter 30 of the Criminal Code of the Russian Federation is entirely devoted to officials.

The Code of Administrative Offenses of the Russian Federation provides a much broader and more voluminous definition. In administrative law, the subject of responsibility is a person who has committed an offense in the area of his authority. These are not only leaders and representatives of the commanding staff, but also ordinary government workers implementing administrative, economic and administrative functions.

Officials and ordinary citizens

In the administrative and legal sphere, officials are considered both representatives of state authorities and some ordinary workers. So what is the difference between ordinary people and officials? According to the Code of Administrative Offenses of the Russian Federation, the category of officials includes citizens working in government bodies and carrying out there a number of functions of an administrative and economic nature. This should also include individuals carrying out entrepreneurial activities - the so-called individual entrepreneurs. It is here that many complaints and disputes arise.

You might think that individual entrepreneurs far from the definition of the Code of Administrative Offenses "official". If we take the activities of individual entrepreneurs, as well as violations in the implementation of powers, then the legal nature will resemble the activities of ordinary legal entities. persons. The motives, the nature of the acts, the composition of the violations - all this indicates the remoteness of the SP from the officials. And this is no coincidence. Recently, the legislator really began to move away from the identification of individual entrepreneurs and officials. A number of special cases have shown that the responsibility of entrepreneurs increasingly began to form with reliance on the affairs of legal entities. A simple example is a recent note to article 16.1 of the Code of Administrative Offenses of the Russian Federation. The sole proprietor's liability now belongs to the category of legal entities. individuals, but not in all cases. So far, a similar rule applies to Article 7.34 of the Administrative Code on violation of use land plots.

Official offenses

The "special part" of the Russian Administrative Code contains 442 articles. Of these, 330 are devoted to the responsibility of officials - this is almost three quarters. Most of the articles are devoted to the entrepreneurial and organizational and economic activities of citizens. It is worth highlighting the offenses in the following areas:

encroachment on civil rights (50 articles from chapter 5 of the Code of Administrative Offenses of the Russian Federation);
property protection (29 articles from chapter 7 of the Code of Administrative Offenses of the Russian Federation);
ecology, nature management and protection environment(38 articles from chapter 8 of the Code of Administrative Offenses of the Russian Federation);
agriculture, land reclamation and veterinary medicine (14 articles from chapter 10);
communication and information (23 articles from chapter 13 of the Code of Administrative Offenses of the Russian Federation);
industry, energy and construction (14 articles from chapter 9);
finance and taxes, as well as business (59 articles from chapters 14 and 15);
customs sphere (21 articles from chapter 16);
encroachment on the bodies of state power of the Russian Federation (10 articles from chapter 17);
military registration (4 articles from chapter 21);
management order (19 articles from chapter 19).

Thus, the responsibility of officials in the Code of Administrative Offenses is provided for almost everywhere.

Sanctions for offenses

Are there any special types of sanctions imposed on officials? The Russian Administrative Code states that the imposition of punishment for an organization does not exempt officials from responsibility either. The most common type of punishment for such citizens is an administrative fine and disqualification.
In the latter case, we are talking about deprivation of the opportunity to occupy a professional position for a period specified by the court. A simple example is the highest official of a constituent entity of the Russian Federation. A governor, head of a republic, district, or any other region can be dismissed for any offense. Sometimes disqualification can coincide with lustration - but only in cases of a change of government throughout the country.

Examples of officers

It is not so easy to determine an official by only one legal status. The Administrative Code, unfortunately, does not provide detailed information on certain types of professions. That is why it is worth considering examples from practice.

Often, citizens get a job, after which they cannot understand in any way whether they are officials. Rights and obligations in this case are The best way determining the status. Take a storekeeper as an example. It would seem that such an employee can acquire the status in question? In fact, he can, if he signs a document on material responsibility. In this case, he will have administrative powers, he will have the right, at his discretion, to accept or issue the goods. This happens, but not often: sometimes employers decide to entrust their subordinates with part of their own functions. Whether it is good or not is a moot point. Ordinary workers, having received the status of an official, acquire a special kind of responsibility. Therefore, they can be subject to sanctions if violations are committed by the entire organization.

Rights and obligations of officials

It is worth moving from the problem of assigning responsibility to officials to the problem of assigning responsibility on behalf of such citizens. Officials from the system of state bodies have their duty to protect the state system and fight against lawlessness. Their main task is to ensure the expedient, conscientious, fair and lawful bringing of offenders to administrative responsibility. For this, a circle of statesmen, who are officials, is determined, after which they are empowered.

More than sixty supervisory authorities consider administrative cases, of which there are about four hundred in the Code of Administrative Offenses. For example, the police department deal with 50 types of violations, among which there are areas of traffic, law enforcement, etc. In the police department, officials are the heads and their deputies. It is these persons who consider cases of violation of the law.

Tasks of officials

It is worth considering the work of officials to identify offenses using the example of the Department of Internal Affairs. It is this instance that implements most of the functions in the field of prevention and suppression of offenses. The following cases are considered:

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

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

Authorized authorities

What officials are entitled to resolve cases of administrative offenses? It all depends on the severity of the violation of the law. So, you should pay attention to the following instances:

customs and tax authorities, military registration and enlistment offices, border services;
executive agencies;
collegial administrative commissions;
commissions for minors;
justices of the peace, as well as judges from district and regional courts.

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

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. We are talking 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, material damage, and civil offenses.

All offenses committed by employees of 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 may be brought to criminal, administrative, disciplinary and material liability.

Criminal liability officials and civil servants are subject to the deprivation and restriction of rights and freedoms for committing crimes provided for by the Criminal Code of the Russian Federation, where they act as special subjects of criminal responsibility. Their specificity is due to the special legal status enshrined in the norms of 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 law: violation of the equality of human and civil rights and freedoms (part 2 of article 136 of the Criminal Code of the Russian Federation), violation of privacy (part 2 of art. 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 of office (Article 285 of the Criminal Code of the Russian Federation), etc. several groups of socially dangerous acts, for the commission of which the employees of the internal affairs bodies are criminally liable due to improper performance of their official duties.

The first group is formed by crimes against state power and the interests of the state 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 arrest, detention or detention, falsification of evidence, provocation of a bribe, disclosure of preliminary investigation data, harboring crimes and some others.

Criminal liability entail socially dangerous acts of a police officer that infringe on the constitutional rights and freedoms of citizens. Their specific types are: violation of privacy, violation of secrecy 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, rally, 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 administrative offense in connection with non-performance or improper performance of their 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 the obstruction of the exercise by a citizen 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 subjects Russian Federation... So, 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, traffic rules, customs regulations and others) they are responsible on a general basis.

Disciplinary responsibility occurs when an official or civil servant violates the official duties assigned to them, including ensuring the observance and protection of the rights and legitimate interests of 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. The compositions of disciplinary offenses are enshrined in it in the very general view and are concretized in other regulatory legal acts... Thus, officials of the customs authorities bear disciplinary responsibility for unlawful decisions, actions (inaction) in accordance with the Federal Law "On Service in the 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 civil service, the Disciplinary Charter customs service of the Russian Federation.

Disciplinary responsibility is 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" established disciplinary measures, which are classified by law: reprimand, warning of incomplete official compliance, release from a substituted civil service position, 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 subject to disciplinary responsibility in accordance with the Disciplinary Charter of the Internal Affairs Bodies, approved by the President of the Russian Federation.

A disciplinary sanction may be imposed by an official who is empowered to appoint officers of the internal affairs bodies.

To officials acting in the framework of employment contract, can be applied material liability... The material liability of an employee is understood as "the obligation of an employee, whose guilty illegal actions have 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 the following reasons the onset of material liability of the employer: for the loss of earnings in connection with the illegal deprivation of the employee of the opportunity to work (Art. 234); for the delay wages and other payments (Article 236); for damage caused to the employee's property (Article 235); for non-pecuniary damage caused to the employee (Article 237).

Liability, in contrast to other types of legal liability of 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 guilty.

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, the 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 responsibility for the 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 the Decision of 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 stipulated by special legal acts , or 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 standards are applicable to employees of internal affairs bodies, providing general provisions on the material liability of the parties to an employment 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 an 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 during 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; intentional damage, etc.

The financial 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 a constituent entity of the Russian Federation or the treasury of a municipal formation, respectively.

The treasury is understood as property belonging to the Russian Federation (subject of the Russian Federation, municipal formation) that 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, the financial bodies of the constituent entities of the Russian Federation and municipalities.

The right of citizens to compensation for damage caused illegal actions the executive branch and their officials is addressed 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. In this case, claims for compensation for harm cannot be applied to them, since officials are not subjects civil law... According to Art. 2 of the Civil Code of the Russian Federation, the participants in relations regulated by civil law are citizens and legal entities, and the official himself may be held liable.

At the same time, the Russian Federation, a constituent entity of the Russian Federation or a municipal entity that compensated the victim for harm 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, by 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 incident is an action that has signs of an offense, but devoid of elements of guilt and therefore is not punishable.

In accordance with Art. 1.2. Of the Code of Administrative Offenses of the Russian Federation, the tasks of the legislation on administrative offenses are the protection of the individual, the protection of human and civil rights and freedoms, the protection of the health of citizens, the sanitary and epidemiological well-being of the population, the protection of public morality, the protection of the environment, the established procedure for exercising state power, public order and public safety, property, protection of the legitimate economic interests of individuals and legal entities, society and the state from administrative offenses, as well as the prevention of administrative offenses.

An administrative offense is an unlawful, guilty act (inaction) of a physical or legal entity, for which the Code of Administrative Offenses of the Russian Federation or the laws of the constituent entities of the Russian Federation on administrative offenses established administrative responsibility (part 1, article 2.1. of the Code of Administrative Offenses of the Russian Federation).

In this case, a person is subject to administrative responsibility only for those administrative offenses in respect of which his guilt has been established. Irremovable doubts about the guilt of a person brought to administrative responsibility are interpreted in favor of this person by Art. 1.5 of the Administrative Code of the Russian Federation).

The set of signs established by law, in the presence of which a specific act becomes an administrative offense, is defined as the composition of an administrative offense. The presence of the corpus delicti of an administrative offense in a particular act serves as the only basis for the onset of administrative responsibility for its commission.

The crux of the matter: when extinguishing a fire in one of the apartment buildings, there was a delay in the supply of water through the dry pipe, after which, with an appropriate check The managing organization the fire authority concluded that there was a malfunction of the fire equipment in apartment building and the need to bring an official of the Managing Organization to responsibility under Part 1 of Art. 20.4. Administrative Code of the Russian Federation "Violation of the requirements fire safety».

Disagreeing with the decision of the inspector of the fire control body on bringing to justice, the Management Organization filed a complaint.

When considering the case, the court has repeatedly made a decision to return the case for a new trial. However, at each "new" consideration of the case, the inspector of the fire supervision authority saw signs of the corpus delicti under Art. 20.4 of the Code of Administrative Offenses of the Russian Federation and issued a resolution on bringing to responsibility an official of the Managing Organization for violation of fire safety requirements. ( The decision of the Novosibirsk District Court of 11/14/2017. in case No. 12-308 / 2017, Decision of the Novosibirsk District Court of the Novosibirsk Region of 25.07.2017. in case No. 12-202 / 2017)

In the operative part of the decision, the court repeatedly indicated the following:

“Article 26.1 of the Code of Administrative Offenses of the Russian Federation stipulates that in a case of an administrative offense, the following are subject to clarification: the presence of an event of an administrative offense; a person who has committed unlawful acts (inaction) for which the Code of Administrative Offenses of the Russian Federation or the law of a constituent entity of the Russian Federation provides for administrative liability; guilt of a person in committing an administrative offense; circumstances mitigating administrative responsibility; the nature and amount of damage caused by an administrative offense; circumstances precluding proceedings in the case of an administrative offense; other circumstances that are important for the correct resolution of the case, as well as the reasons and conditions for the commission of an administrative offense.

Based on Art. 38 of the Federal Law of 21.12.1994 No. 69-FZ "On Fire Safety" on Responsibility for violation of fire safety requirements in accordance with the current legislation is borne by: property owners (paragraph 1); leaders federal bodies executive power; heads of local self-government bodies; persons authorized to own, use or dispose of property, including heads of organizations (paragraph 4); persons duly appointed responsible for ensuring fire safety (par. 5); officials within their competence(paragraph 6).

According to clause 4 of the Decree of the Government of the Russian Federation of April 25, 2012. No. 390 "On fire safety" the head of the organization appoints a person responsible for fire safety, who ensures compliance with fire safety requirements at the facility.

Part 1 of Art. 38 of the Federal Law of 21.12.1994 No. 69-FZ "On Fire Safety", the legislator singled out officials as individual actors responsibility for fire safety, based on the criterion of their performance of the functions of a representative of the authorities. And for this reason, officials of commercial and non-commercial organizations responsible for ensuring fire safety do not bear responsibility exactly as officials.

In accordance with Art. 39 of the specified federal law No. 69-FZ, the grounds and procedure for bringing to responsibility for violations in the field of fire safety are established by the legislation of the Russian Federation.

Thus, the head of the organization is liable for violation of fire safety requirements, as an official, only if the organization does not have a person responsible for fire safety.

However, these circumstances were not taken into account by the inspector during the re-examination of the case, despite the objections presented by the person brought to responsibility that the organization has an official responsible for fire safety. Thus, the official responsible for fire safety has not been established with certainty.

Besides, when conducting proceedings on an administrative offense, as well as from the materials of the case, it was not determined with certainty which fire safety requirement was violated.

In accordance with Art. 24.1 of the Code of Administrative Offenses of the Russian Federation, the tasks of the proceedings in the case of an administrative offense are, among other things, a comprehensive, complete, objective and timely clarification of the circumstances of each case, and its resolution in accordance with the law.

Meanwhile, the decision was made by an official ( government inspector) without establishing all the circumstances in the case, which violated the principle of objectivity, completeness and comprehensive consideration of the case, in connection with which the said decision cannot be considered lawful and justified. "

Thus, the court canceled the issued order to bring the official to justice and sent the case for a new trial.

During the consideration of the case, the inspector of the fire control body also gave explanations to the court, according to which “it is not possible to establish with certainty the nature of the malfunction of the fire equipment in an apartment building. According to the expert's conclusion, as a result of the examination carried out on the initiative of the person brought to justice, no malfunction of the fire equipment in the apartment building was found. " This means that it is not possible to establish in what exactly the actions (inaction) of the person brought to justice and constituting the objective side of the offense at the time of the consideration of the case were expressed. In this connection, there is no causal relationship between the actions (inaction) of the person brought to justice and the consequences that have occurred, which does not establish the guilt of the specified person, entails the absence of an administrative offense and the impossibility of bringing to responsibility.

In the opinion of the inspector of the fire control body - “there were no circumstances precluding the proceedings in the case”, in the opinion of the person brought to responsibility, “all the circumstances that are important for the correct resolution of the case were not taken into account”, and in the opinion of the fire supervision violated the principle of objectivity, completeness and comprehensive consideration of the case ”, the circumstances indicated in the aggregate do not allow making a final decision on this case. It should be noted that as a result of "endless" attempts by the fire control body to bring to justice an official of the Managing Organization and an appeal against such a decision by the said person, the limitation period for bringing to administrative responsibility under Art. 4.5. The Code of Administrative Offenses of the Russian Federation has expired. Thus, the case of an administrative offense shall be terminated on the grounds provided for in clause 6 h. 1 of Art. 24.5. Administrative Code "Expiration of the statute of limitations for bringing to administrative responsibility."

Materials (edit) judicial practice: Resolution of the Plenum of the Supreme Arbitration court Of the Russian Federation No. 2 of January 27, 2003, Resolution of the Plenum of the RF Armed Forces of March 24, 2005. No. 5 "On some issues arising from the courts in the application of the Code of Administrative Offenses of the Russian Federation", Review of judicial practice The Supreme Court Of the Russian Federation No. 3 (2016), approved by the Presidium of the Supreme Court of the Russian Federation dated 19.10.2016., Decision of the Samara Regional Court dated 12.1.2015. in case No. 21-1454 / 2015, Decision of the Samara Regional Court dated 10.11.2016. in case No. 21-2243 / 2016.

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 the criminal law, officials are understood as persons who permanently, temporarily or by special authority perform the functions of a representative of the government or perform organizational, 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 RF. 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 performing 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-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.

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 positions, and persons performing organizational, administrative and administrative functions in state and municipal institutions, but also the heads of all other organizations, as well as other employees. carrying out organizational and administrative or administrative and economic functions in them.

Once again, we note that the Code of Administrative Offenses of the Russian Federation, in general, includes persons engaged in entrepreneurial activities without forming a legal entity among officials as subjects of administrative responsibility. 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 carrying out entrepreneurial activities 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 engaged in 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 by article 7.34 "Violation of the terms and procedure for re-registration of the right of permanent (unlimited) use of land plots for the right to lease land plots or the terms and procedure for acquiring ownership of land plots ”. The footnote 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 of various bodies and economic entities, as well as persons engaged in entrepreneurial activities without forming a legal entity, as administrative offenses.

Of the 442 articles of the Code of Administrative Offenses of the Russian Federation, 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 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);

V agriculture, veterinary medicine and land reclamation (out of 14 articles included in Chapter 10 of the Code of Administrative Offenses of the Russian Federation, all 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 the 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 field 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 the indicated 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 a number of 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 hygienic standards (Article 6.14 of the Code of Administrative Offenses 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 a license for water use and fishing for aquatic biological resources of inland sea waters, the territorial sea, the continental shelf, the exclusive economic zone of the Russian Federation (part 2 of article 8.17 of the Code of Administrative Offenses of the Russian Federation) may entail the appointment of officials an administrative fine 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 still many such 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).

V 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 Administrative Code of the Russian Federation for non-payment in set time previously imposed administrative fine.