Formation of a risk management system for causing harm (damage) by drivers of vehicles

Kalyuzhny Yurii Nikolaevich ORCID: 0000-0003-3412-0986 Doctor of Law Assistant professor, Department of Administration of Work of Public Order Units, Staff Training Centre, Academy of Management of the Ministry of Internal Affairs of Russia 125171, Russia, g. Moscow, ul. Zoi I Aleksandra, 8 kaluzhniy-y@yandex.ru Other publications by this author

The full implementation of the state's functions is impossible without taking into account social interests and needs ^[1], first of all, the primary interests of any person following physiological needs – needs (interests) in safety ^[2], including road safety.

New social factors are indeed exposing state-legal problems previously unknown to legal science. In turn, the state is forced to look for legal instruments to influence public relations in order to regulate and streamline them.

One of the legal instruments for regulating public relations in the field of road safety was the risk-based approach used to monitor (supervise) the activities of business entities since 2016.

In the process of implementing institutional and legal transformations through the use of a risk-based approach with modern tools, it seems possible to assert that the activities of internal affairs bodies have undergone significant changes that have had a cardinal impact on the implementation of tasks and functions ^[3] facing police units related to control (supervision).

The adoption in 2020 of the basic law (On State Control (Supervision) and Municipal Control in the Russian Federation), defining new approaches underlying control (supervision), prompted the legislator to correlate the legal norms of the sphere of security in question related to the control (supervisory) activities of authorized entities, and also contributed to the development of theoretical and legal tools. In particular, the Federal Law "On Road Safety", in order to comply with the changed public relations, singled out from the federal state supervision in the area in question such a type as supervision of compliance by road users with the requirements of legislation in the area in question as an independent type of supervisory activity.

The ongoing administrative reform of public administration invariably affects the content of public relations, which are changing in the context of the transformation of the regulatory framework. At the same time, the reform of even collectively similar legal regulation of public relations (in particular, those related to road safety) does not allow to cover the absolute totality of all public relations in the reformed segment without exception.

The purpose of the control (supervision) reform, in addition to reducing the level of damage to protected public relations, is aimed at eliminating administrative barriers that hinder business development, and the introduced legal instruments and mechanisms characteristic of control (supervision), enshrined in the adopted law, are designed primarily for business entities. Thus, the procedure for control (supervision) of legal entities and individual entrepreneurs does not seem applicable with respect to compliance with mandatory requirements by persons involved in road traffic, as explicitly stated in paragraph 5. part 4. of Article 2 of the law under consideration.

As a result, the implementation of the administrative reform of control and supervisory activities, which defined new principles of its implementation in the field of safety in question, had a significant impact on the activities of business entities involved in these legal relations, but ignored one of the largest groups of subjects of the legal relations under consideration - road users.

Among those involved in traffic, the largest number of offenses that caused accidents in 2022 belongs to transport drivers (87.7% of the total number of accidents) ^[4].That is, transport drivers represent the dominant segment of participants in the traffic process, bearing the risks of its safety. At the same time, modern legislation does not provide for a risk management system emanating from transport drivers.

Control (supervisory) activities in relation to business entities are legislatively defined in sufficient detail, and the provisions on the types of control (supervision) specify the tools provided by law, which cannot be said with respect to participants in the road traffic process. This legal gap clearly demonstrates the need for further systematic work aimed at developing legal norms defining supervisory mechanisms, primarily for transport drivers ^[5], and the formation of a risk management system.

In his report, D.Y. Grigorenko, with regard to the development of control (supervisory) activities, indicates that according to research conducted this year, 52.2% of the surveyed citizens of our country, in general, indicated a decrease in the level of risks to their life and health (+ 9.8 points by 2021), while the level of trust in government agencies, The number of those implementing supervisory activities increased very slightly (by only 1.2 points) ^[6].

Thus, it is necessary to carry out work in a more diverse way aimed at ensuring the safety of citizens of our country and forming a sense of security in them, because the key goal of this activity is qualitative changes in people's lives.

V.I. Mayorov, exploring the need for the formation of a risk management system, in the field of ensuring the safety in question, quite justifiably points out that the purpose of developing new control (supervision) mechanisms should be the protection of road users ^[7].

That is, considering the need to develop new mechanisms of control (supervision) in relation to transport drivers, it seems justified to form legal instruments corresponding to the basic postulates enshrined in the legislation of our country, that is, using a risk-based approach.

The system of supervision of transport drivers in the main set of tools used, in its legal essence, was formed back in Soviet times. The main forms and methods of supervisory activities in relation to motor vehicle drivers were laid down in the twentieth century and, despite the ongoing administrative reform of control (supervision), supervisory activities in relation to road users have remained virtually unchanged.

Changes in the legal norms defining the procedure for supervision of compliance with the law by participants in the traffic process were the result of administrative reform and bringing into line with the legal norms defining supervisory activities in general.

At the same time, the adjustment of the procedure for the implementation by employees of the State Traffic Inspectorate of the Ministry of Internal Affairs of Russia of their functional powers in relation to participants in the road traffic process did not represent the introduction of innovative, breakthrough technologies into supervisory activities, just as it did not represent a radical reform of supervision itself in relation to this category. These changes, without full-fledged reform, taking into account the historical experience of our state and positive foreign experience, without using the capabilities of modern digital technologies, have a negative impact on the quality of supervisory activities. In addition, they have a negligible impact on reducing the level of risks to the life and health of citizens, jeopardize the achievement of targets for reducing the number of deaths as a result of car accidents, thereby the effectiveness of the tasks of the strategic development of our state.

In the context of the implementation of control (supervision) in relation to business entities, it seems necessary to form a risk management system for causing harm (damage) to drivers of vehicles.

The risk management system should include the following stages: identification of sources to be analyzed (behavior of transport drivers); risk recognition (identification and fixation of an offense committed by the driver); determination of the level of risk (permissible or systematic and posing an extreme threat); determination of methods of managerial influence (punishing the driver or imposing punishment and excluding him from the process traffic).

One of the main tools for improving supervisory activities and the designated system is the introduction of a risk-based approach in the supervision of compliance by road users with legal requirements ^[8].

The indicated approach is actively implemented in the implementation of control (supervision) in many areas of citizens' life. The reform of control (supervisory) activities is one of the most important and significant reforms carried out by our state over the past twenty years. All aspects and directions of control (supervision) must be made appropriate to modern realities ^[9].

The active introduction of digital technologies into various spheres of public life affects the change of habitual public relations, including influencing the mechanisms of public administration of public relations. In the practice of encouraging drivers to comply with the requirements of the legislation of our country, in 2007, a norm was legislated providing for the procedure for bringing transport owners to administrative responsibility in case of detection and fixation of violations of established requirements by complexes of automatic fixation of offenses.

The modern development of complexes for automatic recording of offenses, innovative technologies and work with an array of digital data are able to fully ensure the performance of control (supervisory) functions in relation to drivers of motor vehicles, the number and types of offenses committed by them, highlighting the risk levels indicated by participants in the road traffic process.

That is, technically, conditions have been created in our country that allow monitoring (collection, processing, analysis and accounting) of data on the number, composition and severity of offenses committed by drivers of motor vehicles and the full functioning of the risk management system emanating from drivers of transport.

The legislation defining the procedure for control (supervision) in relation to business entities defines monitoring as a special regime, that is, an independent legal regime related to state control (supervision).

The State Traffic Inspectorate of the Ministry of Internal Affairs of Russia will carry out systematic monitoring of information within the framework of the operation of the designated system, allowing to form an assessment of the illegal behavior of transport drivers and to exercise a controlling influence on them.

The risk management system for causing harm (damage) by transport drivers should basically contain a point scale, taking into account the existing experience of the historical past, used in Soviet times and its special implementation in foreign countries. Moreover, the designated system should be built taking into account the possibilities of gradual integration into the modern legislation of our country, regulating the main aspects of control (supervision) and the procedure for bringing to administrative responsibility.

In the post-Soviet period (from 1993 to 1997), there was Article 118.1 of the Administrative Code of the RSFSR, which provides for a point system for assessing an offense, closely interrelated with the systematic violation by transport drivers of generally binding rules. Each traffic offense was expressed in points, in addition to assigning the main type of punishment. Upon reaching 15 or more points, the violator was excluded from the traffic process by depriving him of a special right – the right to drive transport.

An ineffective system of control (supervision) over the implementation of the point system, the difficult socio-economic situation in the country in which the presence of a point system created prerequisites for corrupt behavior of traffic police officers were among the reasons for the abolition of the point system. At the same time, in a number of foreign countries: the Czech Republic, the Kingdom of Spain, Hungary, the Federal Republic of Germany, Montenegro ^[10], as well as in the United Kingdom, the United States, Brazil, Portugal ^[11], there is a point system providing for the deprivation of the right to drive.

In addition, in 2013, the parliamentarians of the Russian Federation considered draft law No. 226369-6, which proposes a scoring system for systematic violation of mandatory requirements established by regulatory legal acts, but was sent for revision.

Thus, the implementation of the points system in Russian legislation should comply with current trends used in control (supervisory) reality, taking into account risk criteria, and consolidate mechanisms for depriving transport drivers of the right to drive in case of obtaining the maximum number of points. That is, in the case when there are extreme risks to the life, health and legitimate interests of other participants in the movement process.

Risk criteria should be developed based on potential threats and the severity of consequences that may arise as a result of non-compliance (violation) of mandatory requirements by transport drivers.

As a basis for a risk management system, it is proposed to form such risk criteria as: the number of offenses committed; the public danger of an offense committed; the type of punishment provided for by the norm for committing an offense; the limitation period for bringing to justice.

The risk category must be compared with the number of points received for violating mandatory requirements. In particular, when assigning penalty points, it is necessary to build on the sanctions provided for in the article. For example: a fine of up to 5 thousand rubles – 1 point, more than 5 thousand – 5 points, other types of punishments possible for offenses in the field of the relationship in question – 7 points (except for the deprivation of the right to drive, which corresponds to 15 points and the exclusion of the driver from the traffic process).

The Basic Law on Control (Supervisory) Activities provides for the possibility of establishing a minimum limit in 3 risk categories in the regulations on types of control (supervision). Based on this requirement, the determination of the risk level of transport drivers must be carried out taking into account the correlation of risk categories with points in the following format: low risk – up to 5 points, high risk – from 5 to 10 points and extremely high – from 10 to 15 points or more.

The risk-oriented approach introduced into the supervision of compliance by transport drivers with legislation in this area will contribute to the concentration of available resources of the State Traffic Inspectorate in relation to those subjects of control (supervisory) activities that have the greatest risks to the life, health and legitimate interests of participants in the traffic process.

The risk management system for causing harm (damage) to drivers of vehicles will undoubtedly have a deterrent effect in relation to violations of mandatory requirements by drivers of transport. The main task of the risk management system is to exclude from the driving process on the basis of a court decision those drivers who have reached critical risk values within one year.

In conclusion, it should be noted that the presented risk management system for causing harm (damage) by drivers of vehicles does not pretend to be an axiom and can be taken as a basis for its development. Without a doubt, some elements of the considered system are controversial in terms of the fairness of its functioning. In this context, the statement of Professor V.V. Lazarev, who studies the relationship of the legal system with the state, indicating that full justice in social relations is an ideal bordering on utopia, seems completely justified ^[12].

The main purpose of the presented system is to stimulate conscientious compliance by drivers of transport with the regulations established by law, which allows: to ensure traffic safety on the country's roads, reduce the number of dead and injured in car accidents, by excluding undisciplined drivers from the traffic process who are prone to systematic violation of established rules.