Officials have been involved. The concept and definition of an official in legislation. Rights and obligations of an official. Features of imposing sanctions

Publication

End of article, beginning in No. 5.6 for 2011

The types of liability to which an official of an organization may be held are set out in Art. 419 of the Labor Code of the Russian Federation, namely disciplinary, material, civil, administrative, criminal. Bringing to one type of liability does not exclude bringing to another type. The employing organization and officials are also responsible for violations of labor and labor protection legislation. Moreover, they can be brought to justice not only administratively, but also criminally, as well as disciplinary and financial liability(see Articles 195, 419 of the Labor Code of the Russian Federation).

Disciplinary responsibility

In accordance with Art. 189 of the Labor Code of the Russian Federation, labor discipline is obligatory for all employees to obey the rules of conduct determined in accordance with the Labor Code of the Russian Federation, other federal laws, collective agreements, agreements, local regulations, and employment contracts. The employer is obliged to create the conditions necessary for employees to comply with labor discipline.

Chapter 30 of the Labor Code of the Russian Federation regulates the procedure for applying disciplinary measures. The basis for attracting disciplinary liability is a disciplinary offense, that is, failure or improper performance by an employee, through his fault, of the labor duties assigned to him.

As with any other liability, the application of disciplinary measures requires the presence of elements of an offense.

Firstly, the employee’s actions must be illegal, that is, violate the law or regulations, or requirements employment contract.

Second, the employee’s actions caused harm to the employer, regardless of its nature. This could be property damage or harm caused to the order existing in the organization.

Thirdly, guilt. If the employee is not at fault, holding him accountable is unacceptable.

The subject of liability is an employee performing a labor function in an organization, including officials of the organization (manager and chief accountant). Article 192 of the Labor Code of the Russian Federation establishes the following types of disciplinary sanctions: reprimand, reprimand, dismissal on appropriate grounds.

FYI
For each disciplinary offense, only one disciplinary sanction can be applied. At the same time, for ordinary commercial organizations list of penalties established by Art. 192 of the Labor Code of the Russian Federation is closed. The employer does not have the right to apply other types of penalties, otherwise he may be held liable under Art. 5.27 Code of Administrative Offenses of the Russian Federation,

Article 192 of the Labor Code of the Russian Federation prohibits the use of disciplinary sanctions not provided for by the Labor Code of the Russian Federation, other federal laws, charters and regulations on discipline.

It should be clarified here that in accordance with Part 5 of Art. 192 Labor Code of the Russian Federation for individual categories employees are subject to statutes and regulations on discipline established by federal laws. Such charters and regulations on discipline have been approved for employees of the customs service, fishing fleet, maritime transport workers, as well as employees of organizations with particularly hazardous production in the field of nuclear energy, and railway transport workers.

Disciplinary action is an employer's right, not an obligation. In addition, the employer retains the right to choose the measure of responsibility or refuse to impose a penalty altogether.

When imposing a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account. If the severity of the offense committed is disproportionate to the penalty imposed, then the court may indicate that such a penalty is unfounded. For example, the Moscow City Court, by its ruling dated June 22, 2010, confirmed the legality of reinstatement in the case, since the penalty applied to the employee—dismissal—was disproportionate to the severity of the offense (violations in storing file documents).

The penalty can be applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees.

In this case, before applying a penalty, the employer must request a written explanation from the employee. However, if such an explanation is not provided, then this is not an obstacle to imposing a penalty (Article 193 of the Labor Code of the Russian Federation). Disciplinary action may be appealed by the employee to the state labor inspectorate and (or) court.

By general rule The employee, represented by the head of the organization, is brought to disciplinary liability. The head of the organization is responsible for general principles, that is, like any other employee. The head of an organization can be brought to disciplinary liability directly by the employer represented by other management bodies (board of directors, general meeting, if the charter so provides).

Administrative responsibility

In Chapter 5 “Administrative offenses encroaching on the rights of citizens” of the Code Russian Federation on administrative offenses contains a number of rules establishing liability for violation of labor legislation.

For violations of labor and labor protection legislation, officials are held liable in accordance with Art. 5.27 Code of Administrative Offenses of the Russian Federation. This article provides for the imposition of a fine on officials in the amount of from 1000 to 5000 rubles, on persons carrying out entrepreneurial activity without education legal entity, - from one thousand to five thousand rubles, for legal entities - from 30,000 to 50,000 rubles. In relation to legal entities and individual entrepreneurs Instead of a fine, it is possible to suspend activities for up to 90 days. For a repeated similar offense, the manager may be subject to disqualification for a period of one to three years.

FYI
The President signed a law tightening administrative penalties for violation of requirements fire safety(Article 20.4 of the Code of Administrative Offenses of the Russian Federation). Now an offense under this article entails imposition administrative fine for legal entities from 150,000 to 200,000 rubles. The same actions committed under special fire conditions will result in a fine of 400,000 to 500,000 rubles. And for re-commitment For a “fire” offense, the company will pay from 200,000 to 400,000 rubles or an administrative suspension of activities will be imposed on it for up to 90 days.
If the requirement to provide fire passages, driveways and entrances to buildings, structures and structures is violated, then citizens will be punished with a fine of 1,500 to 2,000 rubles; officials - from 7,000 to 10,000 rubles; legal entities – from 120,000 to 150,000 rubles.

Judicial practice

Plenum Supreme Court The Russian Federation, in Resolution No. 5 of March 24, 2005, “On some questions that arise for the courts when applying the Code of Administrative Offences,” explained that a similar offense should be understood as the commission by an official of the same, and not any violation of labor and labor protection legislation (for example, the first time the official did not make calculations when dismissing one employee, and later - when dismissing another employee). However, in which organization such an official who was brought to justice again (at his previous place of work or present) worked does not matter. Those. if the manager was brought to administrative responsibility under Part 1 of Art. 5.27 of the Administrative Code in one organization, and then within one year committed a similar offense while being the head of another, then he can be held accountable under Part 2 of Art. 5.27 Code of Administrative Offences.

Such violations include, for example:

• lack of mandatory personnel documents (staffing table, personal cards, vacation schedules, etc.), violation of the procedure for maintaining work books;
• failure to comply with the written form of employment contracts, as well as failure to comply with the rule that every change in the conditions of remuneration of an employee must be formalized in the form of an agreement between the employer and the employee, concluded in writing;
• establishment by the employer of new types of disciplinary liability (except for reprimand, reprimand and dismissal).

• lack of duration consideration overtime employees and their payment;
• failure to issue pay slips to employees for accruals and corresponding deductions;
• establishing the amount of wages and/or paying them in foreign currency;
• breach of duty to pay wages every half month;
• forced transfer of workers to a non-cash form of payment
• non-payment of mandatory insurance contributions (for compulsory insurance in the Pension Fund of the Russian Federation, for insurance against industrial accidents in the Social Insurance Fund);
• failure to fulfill the obligation to issue state pension insurance certificates to employees;
• transfer to a job requiring lower qualifications, without written consent employee.

• unjustified refusal to conclude a collective agreement or agreement (warning or fine from 3,000 to 5,000 rubles);
• violation or failure to fulfill obligations under collective agreement, agreement (warning or fine from 3,000 to 5,000 rubles);
• refusal to hire a disabled person within the established quota (fine from 2000 to 3000 rubles);
• concealment insured event with compulsory social insurance against accidents at work and occupational diseases(fine for officials - from 1,000 to 3,000 rubles, for legal entities - from 5,000 to 10,000 rubles);

• disobedience to a lawful order official body implementing state supervision and control, obstruction of the exercise by this official official duties(warning or fine for citizens from 500 to 100 rubles, for officials from 2000 to 4000 rubles);
• failure to comply on time with a legal order (resolution, presentation, decision) of the body exercising supervision or control (for officials - a fine of 1,000 to 2,000 rubles or disqualification for up to three years, for legal entities - a fine of 10,000 to 20,000 rubles .);
• failure to submit or untimely submission to a state body (official) of information (information), the submission of which is provided for by law and is necessary for this body (official) to carry out its legal activities, as well as submission to a state body (official) of such information (information) in incomplete or in a distorted form (fine for officials - from 300 to 500 rubles, for legal entities - from 3000 to 5000 rubles).

Consideration of cases of administrative offenses provided for in Part 1 of Art. 5.27, as well as Art. Art. 5.28 - 5.34, 5.44, is carried out by the Federal Labor Inspectorate and state labor inspectorates subordinate to it.

Criminal liability

The Criminal Code of the Russian Federation provides for a number of norms establishing liability for violation of labor legislation.

In accordance with Part 2 of Art. 136 of the Criminal Code of the Russian Federation, an official of an organization is subject to criminal liability for discrimination, that is, violation of the rights, freedoms and legitimate interests of a person and citizen depending on his gender, race, nationality, language, origin, property and official position, place of residence, attitude to religion, beliefs, membership in public associations or any social groups. This act is punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of one to two years, or by deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years, or by compulsory labor for a term of one hundred twenty to two hundred and forty hours, or by correctional labor for a term of one to two years, or by imprisonment for a term of up to five years.

According to Art. 19 of the Constitution of the Russian Federation, the state guarantees equality of rights and freedoms of man and citizen, regardless of gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations, as well as other circumstances. Any form of restriction of a citizen’s rights on grounds of social, racial, national, linguistic or religious affiliation is prohibited. Art. directly speaks of the prohibition of discrimination in the world of work. 3 Labor Code of the Russian Federation.

Criminal prosecution may be accompanied by financial (in the form of compensation for material damage and compensation for moral damage), as well as disciplinary liability.

A special form of discrimination is the unjustified refusal to hire or unjustified dismissal of a woman on the grounds of her pregnancy, as well as the unjustified refusal to hire or unjustified dismissal from work of a woman who has children under three years of age. This act may constitute a crime under Art. 145 of the Criminal Code of the Russian Federation. The subjects of this crime are officials of the organization - the person responsible for hiring, the head of the organization.

In accordance with Art. 143 of the Criminal Code of the Russian Federation, a violation of safety rules or other labor protection rules, committed by a person who was responsible for complying with these rules, if this entailed through negligence the infliction of serious harm to human health, is punishable by a fine in the amount of up to two hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to eighteen months, compulsory labor for a term of one hundred eighty to two hundred and forty hours, or correctional labor for a term of up to two years, or imprisonment for a term of up to one year.

According to Art. 37 of the Constitution of the Russian Federation, everyone has the right to work in conditions that meet safety and hygiene requirements. Occupational safety – a system for preserving the life and health of workers in the process labor activity, which includes legal, socio-economic, organizational, technical, sanitary and hygienic, treatment and preventive, rehabilitation and other measures. In accordance with Art. 211 Labor Code of the Russian Federation state regulatory requirements labor protection is mandatory for legal entities and individuals when carrying out any type of activity, including design, construction (reconstruction) and operation of facilities, etc. Responsibility under Art. 143 of the Criminal Code of the Russian Federation may be borne by persons who, by virtue of their official position or by special order, are directly entrusted with the obligation to ensure compliance with labor safety rules in a certain area of ​​work, as well as heads of organizations, their deputies, chief engineers, chief specialists, if they have not accepted measures to eliminate violations of labor safety rules known to them, or gave instructions that contradict these rules, or, having taken on direct management of certain types of work, did not ensure compliance with the same rules. The crime provided for in Art. 143 of the Criminal Code of the Russian Federation, can only be committed through negligence. Failure to ensure compliance with labor safety rules, which did not entail the consequences provided for in Article 143 of the Criminal Code of the Russian Federation, entails administrative liability.

Judicial practice

The Plenum of the Supreme Court of the Russian Federation, in resolution No. 1 dated April 23, 1991, explained that liability under Art. 143 of the Criminal Code of the Russian Federation may be borne by persons who, by virtue of their official position or by special order, are directly entrusted with the obligation to ensure compliance with the rules and standards of labor protection in a certain area of ​​work, as well as heads of enterprises and organizations, their deputies, chief engineers, chief specialists of enterprises, if they did not take measures to eliminate violations of labor safety rules known to them, or gave instructions that contradict these rules, or, having taken on direct management of certain types of work, did not ensure compliance with the same rules.

In accordance with Art. 145.1 of the Criminal Code of the Russian Federation, partial non-payment of wages, benefits and other payments established by law for more than three months, committed by the head of an organization, regardless of the form of ownership, by the head - an individual, by the head of a branch, representative office, or other separate structural unit of the organization out of selfish or other personal interest, is punishable by a fine in the amount of up to one hundred twenty thousand rubles or in the amount of wages or other income of the convicted person for a period of up to one year, or by deprivation of the right to hold certain positions or to engage in certain positions or to engage in certain activities for a term of up to one year, or by imprisonment for a term of up to one year .

Partial nonpayment of wages means payment of less than half of the amount due.

For offenses related to non-payment of wages, the employer faces:

• a fine of up to 120,000 rubles. or in the amount of wages or other income of the convicted person for a period of up to one year;
• deprivation of the right to hold certain positions or engage in certain activities for a period of up to one year;
• imprisonment for a term of up to one year (clause 1 of article 145.1 of the Criminal Code of the Russian Federation).

If the delay in payments led to serious consequences, the fine increases from 200,000 to 500,000 rubles. or the amount of wages or other income of the convicted person for a period of one to three years. The term of imprisonment will range from two to five years with deprivation (or without it) of the right to hold certain positions or engage in certain activities for up to five years.

To establish the facts of a criminal offense and bring them to appropriate responsibility, authorized representatives of the labor inspectorate send materials to judiciary and prosecutors.

Employer's liability

Chapter is devoted to issues of financial liability of the employer to the employee. 38 Labor Code of the Russian Federation. According to its provisions, the employer compensates the employee for material damage in the following cases:

• illegal deprivation of the opportunity to work (Article 234 of the Labor Code of the Russian Federation);
• causing damage to the employee’s property (Article 235 of the Labor Code of the Russian Federation). According to Labor Code the employer who caused damage to the employee’s property compensates for this damage in full at market prices prevailing in the area on the day of compensation;
• delay in payment of wages (Article 236 of the Labor Code of the Russian Federation);
• for compensation for moral damage (Article 237 of the Labor Code of the Russian Federation).

Comments

05/18/2015 Ekaterina

Good afternoon
Please tell me if the official committed violations of the same paragraph of Art. 7.32 for several contracts, is the fine cumulative? That is, 5 contracts with an identical violation = 5 administrative fines?

Answer

07/01/2015 Tamil

Hello!
Article 19.5 part 7.2, in case of failure to comply with deadline legal decision, a fine will be charged.
And in what cases is a fine levied on the legal entity? and from an official?

Answer

09.29.2015 Tatyana

We have an enterprise “Municipal State Cultural Institution Methodological Center”, there is a director of this enterprise. It includes 8 structural divisions (7 clubs at different addresses, and there are club leaders, not legal entities). After the inspection, the fire safety inspector issued two fines against the director of the Methodological Center, explaining that the objects have different addresses.
Is this correct? Previously, during inspections of 8 clubs, one fine was issued.

Answer

02/04/2016 Mikhail

Board commercial bank did not provide the Central Bank of the Russian Federation within the prescribed period financial statements. Such a delay on the part of the commercial bank was repeated. The Central Bank of the Russian Federation demanded that the bank replace its managers.
Is the demand of the Central Bank of the Russian Federation legal or not?

Answer

04/11/2016 Alexey

I am a shift supervisor, and an accident occurred on my shift. The labor inspectorate issued a fine to the enterprise. They reprimanded him, deprived him of his bonus until the end of the year, ordered an extraordinary knowledge test, and now they also want to relieve him of his position.
Aren't there too many punishments?

Answer

Answer

05/10/2016 Tatyana

Good afternoon
The employer of the LLC committed many violations regarding registration, failure to pay for downtime due to his fault, and illegal dismissal. The director did not appear at the trial. I won the case and the payments were awarded. writ of execution transferred to the console. As a result, their PC is empty, and the employer does not respond to letters.
What should I do? Who should hold them accountable and to what extent? And this results in the most powerful impunity, if the courts make decisions on the drum, well, they awarded everything on pieces of paper, but in fact, in parallel to the employer. Please tell me how to take my money and punish them?

Answer

05/26/2016 Marie

Six months ago I left the organization, and now I have received a summons to draw up a protocol on an administrative violation of the legislation of the Russian Federation for the time that I worked as an official in the organization.
Is a fine possible in this case? And what can be done to prevent it from happening?
After my dismissal, I don’t work anywhere, I take care of my family.

Answer

06/07/2016 Vladimir

Tell me how to correctly write a letter of resignation if I am going to sue the company in the future, which paid me for an 8-hour day, but in fact I worked 24 hours, which is recorded in legal document(ship's log)?
My rights in terms of rest and work were also violated. I worked a week after a week, in the end 360 hours, and in the calculation I was paid for 160. In the future, I don’t have the slightest desire to work there.

Answer

03/03/2017 Alexander

Please tell me if an employer is forced to withdraw 43% tax. If you refuse, you will be dismissed. Where can he turn, and what threatens him?

Answer

07/18/2017 Konstantin

Good afternoon, Tatyana!

Please tell me what is the statute of limitations for holding an employee accountable for violating labor discipline?

Answer

08/06/2017 Maxim

Good afternoon,
worked for a year without an employment contract. Wages are not paid systematically. I’m not the only one, there are at least 10 of us.

Answer

11/20/2017 Dmitry

Hello!

I applied for the position of foreman, they promised and paid 80,000, but officially they paid the minimum wage. Can I sue my former employer in court and the tax office?

Answer

11/28/2018 Elena

Hello!
The manager initiated the offer to resign due to at will, for which I filed a complaint with senior management.
But in the course internal audit, the HR department, the facts of discrimination were hidden and I received a letter of refusal of the agreement, ridicule and accusations of slander.
What can be done to restore my rights?
Morally I am depressed by lies and unprincipledness.
I’ve been working for nine years, but after that it won’t be acceptable.

Answer

07/22/2019 Alexander

Good afternoon
I have the following situation: our organization (a non-profit gardening partnership) untimely (two days later than the deadline) submitted individual (personalized) accounting information in the compulsory pension insurance system. For this, the Justice of the Peace imposed a penalty on me as an official (manager) in the form of a warning due to the insignificance of the violation. I have a court decision in my hands. However, the Arbitration Court decided to collect 2,500 rubles in income from our organization federal budget and 1,000 rubles state duty. On the website Arbitration Court There is a copy of the order hanging, although our organization did not receive this order in paper form.

My question is: how legal is double punishment for one violation?

Answer

07/28/2019 Alexander

Thanks for the answer.
Where can I clarify (see) that my offense provides for ONLY liability of officials?
From the documents there is a decision of the magistrate to issue me a warning (no fines) due to the insignificance of the violation, and on the website of the Arbitration Court there is an order to collect a fine of two and a half thousand rubles and one thousand rubles of state duty to the state. Moreover, I, as the head of the organization, never received the original order.

Answer

Shows that:

1) they are subject to application only insofar as the administrative offense was committed by an official. At the same time, we must not forget:

a) that an official is individual. In this regard, the following rules apply to the administrative liability of these persons:

2) an official is subject to administrative liability when the offense committed by him is related to:

a) with failure to fulfill their official duties. The latter are most often provided for in federal laws (for example, in the Law on Civil Service, the Law on Municipal Service), laws of constituent entities of the Russian Federation (for example, in the Charter of the City of Moscow), as well as in other regulatory legal acts (for example, decrees of the President of the Russian Federation, resolutions Government of the Russian Federation on the powers of officials of various federal bodies executive branch), in all kinds of official, 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 those indicated above) and make sure that the official did not fulfill his official duties;

b) with improper performance of their official duties.

Constantly;

Temporarily (for example, during a 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 the constituent documents of an organization, etc.);

b) performs the functions of a representative of the authorities. In other words, this person is endowed (in the manner established by law, for example, the Civil Service Law, the FSB Law, the Police Law) with administrative powers (i.e., his instructions, orders, instructions, etc. are mandatory for execution by other citizens , organizations, officials) in relation to persons who are not officially dependent on him. Thus, orders of a police official given in accordance with Art. 10-12 of the Law on the Police, mandatory for all citizens and organizations;

c) performs organizational and administrative functions (including hiring, dismissal, issues binding orders for subordinates, gives instructions, supervises subordinates, plans and directs their work, activities, etc.) in government bodies, bodies local government, Armed Forces of the Russian Federation, other troops and military formations(for example, the Railway Troops, formations of the Ministry of Emergency Situations of Russia, the Ministry of Justice of Russia);

d) also carries out (in the mentioned bodies, troops, organizations) administrative and economic functions (for example, signs bank documents, issues powers of attorney, organizes the use budget funds, disposes of property in the prescribed manner);

3) the Note also equates to the mentioned officials those who committed an administrative offense in connection with the performance of organizational, administrative and administrative functions in organizations; those. This group of people differs from “classical” officials in that they never perform the functions of a representative of government; in this regard, cases of creation, for example, under state bodies, local governments, of all kinds of commercial and semi-commercial organizations that supposedly perform purely technical work (preparing documents, analyzing submitted documents, processing them, registration, etc.) are contrary to the Code of Administrative Offences. , but actually carry out (on a paid basis) functions inherent only to state bodies, local governments and other government representatives (for example, carry out state registration of rights, issue a certificate of state registration of a legal entity, draw up foreign passports), namely:

a) heads of organizations (regardless of their form of ownership);

b) employees of organizations. In this case, we are talking about those of them that perform administrative, economic or organizational and administrative functions:

Constantly, due to his official position (for example, chief accountant of an organization, commercial director of an OJSC, first deputy general director state unitary enterprise). In practice, the question arises: do such employees include the heads of the board of directors of a joint-stock company, the supervisory board of an LLC and other similar bodies of legal entities? Yes, if they have an employment (but not civil) relationship with a legal entity, and also actually (although this is not reflected in the constituent documents) perform the functions mentioned above;

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

IN legal practice there would be no doubt as to which categories of citizens fall under the category in question if the legislator, in the note 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 bearing similar responsibility include:

1. Managers and employees of companies who have committed violations in the exercise of organizational and administrative, administrative and economic powers.
2. Arbitration managers.
3. Members of boards of directors of organizations, collegial bodies, counting and audit commissions, commissions for the abolition of legal entities, as well as founders of companies (only for certain offenses, for example, under Article 19.7.12 of the Code of Administrative Offenses of the Russian Federation).
4. Members of commissions for public procurement, contract managers (only for some provisions of the Code of Administrative Offenses of the Russian Federation, for example, under Article 19.7.2).
5. Organizers of public procurement, persons conducting it, as well as members of procurement commissions (only for some articles, for example Article 7.32.3 of the Code of Administrative Offenses of the Russian Federation).
6. Members of commissions for licensing activities (only under Article 19.6.2 of the Code of Administrative Offenses of the Russian Federation).
7. Individual entrepreneur, unless other rules are established by special legislative norms.
8. Individual entrepreneurs who committed punishable acts due to non-compliance or improper performance job responsibilities(Clause 14 of the resolution of the Plenum of the Armed Forces of the Russian Federation “On some issues...” dated October 24, 2006 No. 18).
9. Organizers of auctions, as well as persons conducting auctions (only under Article 7.32.4 of the Code of Administrative Offenses of the Russian Federation).

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

The procedural procedure and terms for bringing officials to administrative responsibility are general; the administrative law does not provide for any special procedures. The statute of limitations for imposing punishments is similar (Article 4.5 of the Code of Administrative Offenses of the Russian Federation).

The step-by-step procedure is as follows:

1. Initiation of production. The list of reasons for this is listed in Art. 28.1 Code of Administrative Offenses of the Russian Federation. According to the general rule provided for in paragraph 1 of Art. 28.2 of the Code of Administrative Offenses of the Russian Federation, when a procedure is initiated, a protocol is drawn up (exceptions are cases when the case is initiated by a prosecutor, automatic recording of the violation is carried out, and in some other cases).
2. The protocol is submitted for consideration.
3. The case is examined, and 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 non-specific 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 social danger of the violation they committed and the need to apply a more stringent measure of liability.

Don't know your rights?

The features of the administrative responsibility of officials include:

1. The need to prove their status, for example, the fact of working in the company, the presence of certain duties that were not performed properly.
2. It is mandatory that the sanction contains an indication that it is the official who can be held accountable under it. For example, in the sanction of Part 3 of Art. 12.23 of the Code of Administrative Offenses of the Russian Federation directly states that violation of the requirements for the transportation of children established by the Rules traffic, entails a fine for the category of persons in question in the amount of 25,000 rubles.
3. A limited list of penalties (we will cover this point in more detail later).
4. Impossibility of being held accountable if the official performed his duties properly. Accordingly, law enforcement officials always need to check the specific powers job descriptions etc. and compliance of officials’ actions with their requirements.

Features of administrative penalties that can be applied to officials

In paragraph 1 of Art. 3.2 of the Code of Administrative Offenses 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 stating that certain types of punishment cannot be applied to officials.

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

• deprivation of rights;
• arrest;
• expulsion;
• suspension of activities;
• compulsory work;
• prohibition from visiting places where competitions are held.

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

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

Can an official be held administratively liable after dismissal from service (dismissed at the time of 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 corresponding status?

The answer to this question is given in the Review of Practice of the RF Armed Forces dated September 27, 2006 (question 10). The Supreme Court concluded that dismissal does not exempt from liability, since the violation was committed during the performance of duties. At the time of the commission of the act, all the signs of a violation were present; accordingly, the official must be held accountable.

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

You will also be interested in reading the materials that we wrote specifically for our

Along with the administrative liability of legal entities, the Code of Administrative Offenses of the Russian Federation widely provides for the liability of their officials. In accordance with Art. 2.4 an official is subject to administrative liability if he commits an administrative offense in connection with failure to perform or improper performance of his official duties.

As is known, officials bear other types of legal liability, in particular criminal. In criminal legislation, officials are understood as persons who permanently, temporarily or by special authority exercise the functions of a representative of government or perform organizational, administrative and economic 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 crimes by officials. Chapter 30 of the Criminal Code of the Russian Federation.

The concept of an official as a subject of liability 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 performs the functions of a representative of the government, i.e. vested in the manner established by law with administrative powers in relation to persons who are not officially dependent on him, as well as a person performing organizational, administrative or administrative functions in state bodies, local government bodies, state and municipal organizations, as well as in the Armed Forces Russian Federation, other troops and military formations of the Russian Federation.

At the same time, managers and other employees of other organizations, as well as persons engaged in business 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 established 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 heads of all other organizations, as well as other employees who carry out organizational, administrative or administrative functions in them.

Let us note once again that the Code of Administrative Offenses of the Russian Federation generally includes persons carrying out entrepreneurial activities without forming a legal entity as officials as subjects of administrative responsibility. This is the 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 their tortological characteristics. Illegal acts of persons carrying out entrepreneurial activities without forming a legal entity, based on the elements 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, it is apparently no coincidence that the legislator gradually began to move away from identifying officials and persons carrying out entrepreneurial activities without forming a legal entity as subjects of administrative responsibility. On the contrary, in a number of special cases the liability of the latter began to be considered as the liability of legal entities.

For example, in the note to Art. 16.1 of the Code of Administrative Offenses of the Russian Federation, an entry has appeared stating that for administrative offenses provided for in Chapter 16 of the Code, persons carrying out entrepreneurial activities without forming a legal entity bear administrative liability as legal entities. The Code of Administrative Offenses of the Russian Federation has been supplemented with Article 7.34 “Violation of the terms and procedure for re-registration of the right of permanent (unlimited) use land plots for the right to lease land plots or the timing and procedure for acquiring land plots into ownership.” The note to this article also states that for administrative offenses provided for in this article, persons engaged in business activities without forming a legal entity bear administrative liability as legal entities. I think this concept will continue to develop.

Considering the issues of administrative liability 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 liability of legal entities, the qualification as offenses of a significant number of acts committed by them, the establishment of fairly strict corresponding administrative sanctions. The same reasons determine the need to consider as administrative offenses a large number of illegal acts of officials of various bodies and business entities, as well as persons engaged in business activities without forming a legal entity.

Of the 442 articles of the Code of Administrative Offenses of the Russian Federation that make up it Special part, the administrative responsibility of officials is established in 330 articles (in 75% of the articles of the Special Part).

Administrative offenses by officials are offenses 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 liability 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 liability of officials);

In the field of environmental protection and natural resource management (out of 41 articles included in Chapter 8 of the Code of Administrative Offenses of the Russian Federation, 38 provide for the liability of officials);

In industry, construction and energy (of the 14 articles included in Chapter 9 of the Code of Administrative Offenses of the Russian Federation, all provide for the liability of officials);

IN agriculture, veterinary medicine and land reclamation (of the 14 articles included in Chapter 10 of the Code of Administrative Offenses of the Russian Federation, all provide for the liability 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 liability of officials);

In the field of entrepreneurial activity (of the 32 articles included in Chapter 14 of the Code of Administrative Offenses of the Russian Federation, all provide for the liability of officials);

In the field of finance, taxes and fees, market securities(out of 28 articles included in Chapter 15 of the Code of Administrative Offenses of the Russian Federation, 27 provide for the liability 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 liability of officials);

Institutional Intruders state power(out of 15 articles included in Chapter 17 of the Code of Administrative Offenses of the Russian Federation, 10 provide for the liability of officials);

Against the management procedure (out of 27 articles included in Chapter 19 of the Code of Administrative Offenses of the Russian Federation, 19 provide for the liability 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 regulations. legal acts these subjects. 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 by federal laws, and based on the presence of many regional peculiarities 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 committed by organizations (as discussed above), as well as officials of these organizations, entrepreneurs without forming a legal entity.

At the same time, as already noted when considering the administrative liability of legal entities, the imposition of punishment for the corresponding offense does not exempt the organization from simultaneous administrative liability for the offense and the guilty official.

Among the penalties imposed on officials, in addition to an administrative fine, we will indicate, first of all, disqualification. In some cases, confiscation of the instrument or subject of an administrative offense is used. For example, production or circulation of ethyl alcohol, alcoholic or alcohol-containing products that do not meet the requirements state standards, sanitary rules and hygienic standards (Article 6.14 of the Code of Administrative Offenses of the Russian Federation) may entail the imposition of an administrative fine on 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 terms of the license for water use and fishing of aquatic biological resources of internal 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 result in the appointment of officials an administrative fine in the amount of one to one and a half times the value of the aquatic biological resources that were the subject of the administrative offense, with confiscation of the vessel and other instruments for committing this administrative offense. There are many more similar examples.

Of course, confiscation is mainly assigned to persons carrying out entrepreneurial activities without forming a legal entity, who are mainly, as mentioned above, 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 violating fire safety requirements, these persons are given 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 a previously imposed administrative fine within the prescribed period.

2. Administrative responsibility of officials.

Adm. An official is liable if he commits an administrative act.

offenses in connection with non-fulfillment or improper fulfillment of their

official duties.

For the first time in the legislation on administrators. responsibility is enshrined in the concept of duty.

faces. In contrast to the concept of should. of a person enshrined in the Criminal Code, the Code of Administrative Offenses gives a broader definition of it. Under official , according to the Code, should be understood as a person who permanently, temporarily or in accordance with special powers exercises the functions of a representative of the government, i.e. endowed, in

in accordance with the procedure established by law, administrative powers in relation to persons,

who are not officially dependent on him, as well as the person performing

organizational and administrative or administrative functions in

government bodies, 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. The Code of Administrative Offenses also includes managers

and other employees of other organizations performing organizational, administrative or administrative functions, and

also persons carrying out entrepreneurial activities without legal education.

To administrative and administrative functions include such as: manual

team, placement and selection of personnel, maintaining discipline, application

measures of encouragement and disciplinary liability towards subordinates, and to

administrative and economic - powers to manage and dispose

property and in cash, located on the balance sheet and bank

accounts of organizations and institutions, and other actions.

Adm. liability of officials is provided for in most compositions

adm. offenses contained in the Special Part of the Code of Administrative Offences.

Of the 442 articles of the Code of Administrative Offenses of the Russian Federation, constituting its Special Part, the administrative liability of officials is established in 330 articles (75% of the articles of the Special Part). The laws of the constituent entities of the Russian Federation, in addition to the Code of Administrative Offenses of the Russian Federation, also establish 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 constituent entities.

At the same time, the imposition of punishment for the relevant offense does not relieve the organization from simultaneous administrative liability for the offense and the guilty official.

Administrative responsibility of legal entities, officials, and individual entrepreneurs in modern conditions becomes a powerful lever for state management of economic processes and regulation of the activities of business entities.

Features of bringing to administrative responsibility officials performing certain government functions:

Members of the Federation Council and deputies of the State Duma of the Russian Federation during the entire term of their powers, without the consent of the relevant chamber of the Federal Assembly of the Russian Federation, they cannot be brought to administrative liability imposed in court. They also cannot be detained and subjected to personal search (except for cases where this is provided for by federal law to ensure the safety of other persons). After the completion of proceedings in a case of an administrative offense providing for administrative liability imposed in court, the case cannot be transferred to court without the consent of the relevant chamber of the Federal Assembly of the Russian Federation.

We emphasize that members of the Federation Council and deputies of the State Duma of the Russian Federation, without the consent of the corresponding chamber of the Federal Assembly The Russian Federation cannot be brought only to administrative liability imposed in court . There is no indication in the law of their immunity in connection with the commission of administrative offenses considered out of court by officials of executive authorities.

Deputies of legislative bodies are also entitled to immunity subjects of the Russian Federation and deputies of representative bodies of municipalities. But the immunity of these deputies does not extend to actions not related to the exercise of their parliamentary powers.

Regarding the judge Constitutional Court of the Russian Federation, Supreme Court of the Russian Federation, Supreme Arbitration Court of the Russian Federation, supreme court of the republic, regional, regional court, city court federal significance etc. the decision on the issue of bringing to administrative liability is made by a judicial panel consisting of three judges of the Supreme Court of the Russian Federation on the proposal of the Prosecutor General of the Russian Federation. In relation to other judges - by a judicial panel consisting of three judges, respectively, of the supreme court of the republic, regional, regional court, court of a federal city, autonomous region, autonomous district, also on the proposal of the Prosecutor General of the Russian Federation.

Also installed special order involving prosecutors and investigators (systems Investigative Committee at the Prosecutor's Office of the Russian Federation) to administrative liability. Any verification of a report that an offense was committed by a prosecutor or investigator is the exclusive competence of the prosecutor's office. Detention, bringing, personal search of the prosecutor and investigator, search of their belongings and the transport they use are not allowed (except for cases when this is provided for by federal law to ensure the safety of other persons).

Military personnel may also be detained and arrested, including as a disciplinary sanction, only on the grounds and in the manner provided for by federal laws, other regulatory legal acts of the Russian Federation and general military regulations. Military authorities and the military prosecutor's office are immediately notified of the detention of military personnel outside the military unit in which they are serving. Taking into account the specifics of their service, military personnel and citizens called up for military training bear administrative responsibility both on a general basis and (in most cases) in accordance with military regulations.

Employees of internal affairs bodies, bodies of the penal system and some other bodies also bear administrative responsibility for committing only certain administrative offenses; in other cases they are subject to disciplinary measures. Cases of their administrative offenses, for which disciplinary liability is provided, are considered by the immediate superior to whom these employees are subordinate in service. A superior officer has the right to cancel, mitigate or tighten the punishment. Types of punishments are: reprimand; rebuke; severe reprimand; warning about incomplete professional compliance; demotion; dismissal.