Principles of administrative responsibility: current issues

Pligin Vladimir Nikolaevich Doctor of Law Head of the Sector of Administrative Law and Administrative Process; Institute of State and Law of the Russian Academy of Sciences 43 Sivtsev Vrazhek str., Moscow, 119002, Russia voltrap2014@yandex.ru Other publications by this author

Introduction

As one of the aspects that will guide the development of administrative law in the near future, codification is reasonably called, which determines the state of the institution of administrative responsibility ^{[1, p. 125]}. Upcoming codification (the so-called "third codification" of legislation on administrative offenses) It is actively discussed both in the research field and by practitioners, government representatives and the expert community. Taking into account the number of cases of administrative offenses in the tens of millions, which affects both the public interests and the interests of almost all citizens of the Russian Federation directly, the legitimacy of legal decisions in this area is of particular importance, which in turn places additional requirements precisely on the "framework" of its normative design and application, that is, on the principles, both universal and traditional basics. In this article, an attempt is made to consider current problems and trends in the modern understanding of the principles of administrative responsibility in the context of active and permanent reform of domestic legislation on administrative offenses.

The main part

In this regard, it is useful to pay attention to the fact that the category of "principle" is considered in philosophy as one of the fundamental ones. In the system of philosophical knowledge, the principle is endowed with the following common meanings: "(from Latin. principium - the basis, the origin) – "the origin", "the guiding idea", "the basic rule of behavior" ^{[2, p. 461]}.

As an essential characteristic of the principle, which simultaneously acts as a criterion for distinguishing this concept from a postulate and axiom, is its conditionality by human experience, practical cognitive activity. At the same time, only a principle that has received evaluative value based on the results of experimental and practical activities, in our case within the framework of broad law enforcement, can be considered as fundamental theoretical knowledge.

"Every rule of law, including norms containing principles, has its own authorship. When constructing it, the author (simplistically, every time we deal with a group of authors) relies on his own idea of reality, he makes a proposal based on accumulated valuable experience, sensually processed and proposed. The level of sensuality in rulemaking is exceptionally high. At the initial stage of norm preparation, the author's understanding of the methodology of conducting power influence or implementing the idea of the political task of the social stratum (class, party, group elite), which the author represents, is superimposed on his own sensual one..... every time we deal with the value complexes of specific people, built on a system of principles born of the practice of abstraction. At the same time, there is a general practice of abstraction, which leads to the appearance of a declared formula of the principle, for example, fixed in the norm, or to a more complex combination of principles that are formally not fixed, but have significant practical significance for the implementation of the norm" ^{[3, p. 234]}.

Various principles are widely identified in legal science: principles of law as a separate social phenomenon, sectoral principles, principles of the legal institution, organization and activity of the state apparatus, justice, the institute of morality, principles of legal awareness. Each of these institutions has its own legitimizing principle.

The role of subjective, ideal, ideological positions in the creation of a system of legal principles plays a primary role. Political forces, especially in conditions of revolutionary breakdowns, it is on the basis of views and ideas that they choose criteria to designate what becomes a principle for them and what they see as legitimate in their society. At least they can offer it, whether their legal proposal will be legitimized depends on many circumstances of the development of society, but an offer can be made and some pressure to promote it is exerted.

When analyzing principles, it is often emphasized that the essence of principles is objective. In this regard, it seems that G.V. Maltsev's remark that people "are given some power over principles; they can change them, rethink them, are able to abandon them..." ^{[4, pp. 681-685]}.

However, if the government manifests itself in arbitrarily treating the principles when legislating the will of the ruling stratum, changing their content and abandoning the established order of implementation of the principle, then the structure of legal reality will collapse. The power is also present when applying the norm by the law enforcement officer. In the event that the principle of law is distorted in the actions of law enforcement officers, if these actions are not corrected, persons relying on the law in organizing the protection of their interests will refuse to use the rule of law and will look for alternative ways to realize their interest.

The theoretical construction proposed above, relating to the principles of law, is most directly related to the institution of administrative responsibility, since an arbitrary change in its characteristics, including administrative sanctions, breaks in principle the logic of the creation and functioning of legal responsibility, transferring them to the sphere of arbitrary will, which in turn creates conditions for legal nihilism.

Of course, the institution of administrative responsibility should be based on the general principles of public administration and legal responsibility ^{[5, p. 18]}. Administrative responsibility as a core, key, fundamental element of public legal responsibility, is naturally based on the protection of public interests. The latter, according to the fair statement of Professor P.P. Serkov, are of priority importance in the emergence of legal relations in the field of administrative responsibility ^{[6, p. 28]}. Taking into account the fact that any category of public interests is based on the interests of private interests and in modern conditions of complication of the structure of social interaction, it is quite difficult to establish their limits, the boundaries between them, it seems more reasonable to talk about the balance of private and public interests within the framework of the study of the institute of administrative responsibility. Administrative scientists noted that the balance of public and private interests can be identified by analyzing many administrative and legal institutions, including the institute of administrative responsibility, and each of these institutions is in a state of dynamics, and the balance of public and private interests is changing and improving. At the same time, the fundamental criterion in this process, in their opinion, is to take into account the priority of human and civil rights and freedoms ^{[7, p. 105]}.

Before moving on to the current problems and trends in regulating the principles of administrative responsibility, it is necessary to determine the conceptual framework. There can be many variations of categorization here. The conceptual range can be presented as follows: principles of administrative responsibility, principles of legislation on administrative offenses, principles of proceedings in cases of administrative offenses, principles of administrative procedural activity, principles of administrative jurisdiction, principles of administrative proceedings.

The principles of administrative responsibility are also reflected in scientific positions as principles for the establishment and application of administrative responsibility. It seems that the latter act as principles of a more specific order and can be included as varieties in the system of principles of administrative responsibility as an important element of the legal institution of administrative responsibility in general.

Of interest is the position of M.A. Lapina, which distinguishes the principles of administrative responsibility as a legal institution, which include the principle of legality, the principle of equality before the law, the presumption of innocence, the principle of distinguishing the subjects of jurisdiction of the Russian Federation and the subjects of the Russian Federation, the principle of respect for human and civil rights, and the principles of administrative responsibility, containing the fundamental principles of administrative and jurisdictional activity public administration bodies (including federal and regional executive authorities). The system of the second group of principles includes the principles of legality, the interest of public administration officials in the proper implementation and results of proceedings on an administrative offense, speed of production, protection of the interests of the individual and the state, transparency, objectivity, responsibility, equality before the law ^{[5, pp. 4-7]}.

E.V. Ovcharova names the following basic principles of administrative responsibility: presumption of innocence, legality, justice and proportionality, humanism, legal equality, inadmissibility of repeated administrative punishment for the same administrative offense ^{[8, pp. 43-44]}.

In the scientific literature, there are facts of highlighting the principles of administrative responsibility for certain categories of offenses ^[9-10].

The current Code of Administrative Offences of the Russian Federation (hereinafter – the Administrative Code of the Russian Federation) uses the concept of "principles of legislation on administrative offences", among which the legislator specifically enshrines the principle of equality before the law (Article 1.4 of the Administrative Code of the Russian Federation), the presumption of innocence (Article 1.5 of the Administrative Code of the Russian Federation), ensuring legality in the application of administrative coercion measures in connection with an administrative offense (Article 1.6 of the Administrative Code of the Russian Federation).

The question arises: can the principles of administrative responsibility, the principles of legislation on administrative offenses, and the principles of proceedings in cases of administrative offenses be considered identical? Taking into account the fact that an administrative offense is the basis for the application of administrative responsibility, and leading scientists propose to rename the Administrative Code of the Russian Federation to the Code of the Russian Federation on Administrative Responsibility (CAO RF) ^{[11, p. 26]}, in relation to administrative responsibility as a legal institution, such an identification is largely acceptable, it does not seem critical.

As for the list of principles of administrative responsibility and their content, in such a list, which can be recognized by the system, different types of principles have been prioritized and significant in different historical periods. Thus, domestic scientists in the 40s of the last century talk about personal responsibility for violation of administrative acts as the main principle of Soviet legislation of that period ^{[12, p. 102]}. Yu.M. Kozlov in the early 90s of the twentieth century calls legality, competence, procedural equality of the parties as principles of administrative procedural activity, protection of the interests of the state and the individual, achievement of material truth, accessibility, publicity, economy, competitiveness. At the same time, the scientist notes that not each of them is expressed as clearly and comprehensively as in the exercise of jurisdiction in the framework of judicial proceedings in civil and criminal cases, explaining this by the simplicity of the content of administrative and legal disputes ^{[13, pp. 261-262.]}.

Modern researchers rightly recognize the lack of unity and unification of the principles of establishing administrative responsibility in domestic and foreign legislation. This is explained by the fact that the system of these principles includes the principles that the legislator should be guided by when adopting administrative and tort norms, the principles of applying administrative liability measures, as well as administrative and jurisdictional principles (principles of proceedings in cases of administrative offenses) ^{[14, p. 103]}.

Taking into account the close, inextricable connectedness, often interdependence of the principles of administrative responsibility and the principles of administrative jurisdiction, efficiency in solving individual administrative cases can be positioned both as one of the main characteristics of administrative jurisdiction ^{[13, p. 262]} and as the principle of administrative responsibility.

As we have already indicated above, the principles of establishing administrative responsibility and the principles of applying administrative responsibility are differentiated in science. This seems quite natural and justified: the first group of principles is addressed to the legislator, who establishes the grounds, criteria for differentiation, and the procedure for bringing to administrative responsibility; the second group of principles is enshrined in the legislation on administrative offenses and is used by authorities and individuals within the framework of specific procedures for bringing to administrative responsibility. Of course, some of the highlighted categories of principles coincide.

As the principles of establishing administrative responsibility, scientists call "generalized rules for the legislative establishment of administrative responsibility, the meaning of which is that their violation, depending on its nature and materiality, entails the recognition of the norm of legislation on administrative offenses as invalid" ^{[14, p. 109]}.

Professor P.I. Kononov speaks about the principles of the application of administrative responsibility, which refers to them:

1) the legality of bringing to administrative responsibility (Article 1.6 of the current Administrative Code of the Russian Federation);

2) equality of persons brought to administrative responsibility before the law (Article 1.4 of the current Administrative Code of the Russian Federation);

3) personalization of administrative responsibility, i.e. bringing to administrative responsibility that individual or legal entity who directly committed an illegal act (inaction) that forms the event of an administrative offense (new norm);

4) bringing to administrative responsibility only if a person is guilty of committing an administrative offense (Article 1.5 of the current Administrative Code of the Russian Federation);

5) the fairness of administrative responsibility, i.e. the compliance of administrative liability measures and other measures of administrative coercion applied to a person with the nature of the administrative offense committed by him, the circumstances of its commission, the identity of the guilty individual (a new norm, by analogy with the norm of Article 6 of the Criminal Code of the Russian Federation) ^{[11, p. 27]}.

Scientific positions that reveal the system, content and significance of the principles of administrative responsibility are actively developing in the context of discussing the draft Administrative Code of the Russian Federation. We are talking about several such projects reflecting the attempts of the legislator to radically update and optimize the current legislation on administrative offenses, which has undergone numerous, mostly unsystematic changes and additions since its adoption. Without aiming to cover all such attempts that have taken place, let's focus on two of them. The first draft of the Administrative Code of the Russian Federation was prepared by a group of developers led by deputies of the State Duma of the Federal Assembly of the Russian Federation, the author of this article and D.F. Vyatkin (draft No. 957581-6 "Code of Administrative Offences of the Russian Federation", ed., introduced in the State Duma of the Federal Assembly of the Russian Federation, text as of 12/18/2015. http://asozd.duma.gov.ru / (accessed: 12/21/2015)) (hereinafter referred to as the draft Administrative Code of the Russian Federation in 2015). The second draft was prepared by the Ministry of Justice of the Russian Federation later (draft "Code of the Russian Federation on Administrative Offenses" (Project ID 02/04/05-20/00102447). https://regulation.gov.ru / (date of reference: 11/29/2024) (hereinafter referred to as the draft Administrative Code of the Russian Federation 2020). Despite the fact that both drafts were withdrawn from consideration and were not adopted, a review of the novelties proposed in them by the legislator in terms of consolidating the principles of administrative responsibility is, in our opinion, important.

Scientists emphasize that in the draft Code of Administrative Offences of the Russian Federation in 2015, for the first time, an attempt was made to normalize the principles of administrative responsibility. In it, a separate chapter (Chapter 2) was devoted to the conceptual concept and principles of administrative responsibility ^{[8, p. 43]}. In this way, the draft Administrative Code of the Russian Federation in 2015 differed favorably from other similar projects. In the draft Administrative Code of the Russian Federation of 2020, in chapter 1 "General provisions of legislation on administrative offenses", several articles are devoted to the principles, in which the legislator consolidated the principles of legality, equality before the law, the presumption of innocence, the principles of justice and humanism.

N.G. Salishcheva and M.A. Shtatina also called a more detailed and systematic presentation of the principles of administrative responsibility as an essential advantage of the draft Administrative Code of the Russian Federation in 2015. However, they objected to the allocation of guilt as an independent principle. They believed that the constitutionally enshrined principle of the presumption of innocence, in essence, includes the principle of guilt, as understood by the developers of the project ^{[15, p. 155]}.

Other scientists cite the fact that the general part of the draft did not contain the principle of individualization of administrative responsibility, including the differentiation of the guilt of legal entities and officials, as a disadvantage of the draft Administrative Code of the Russian Federation in 2015 ^{[16, p. 28]}.

It should be noted that the principles of administrative responsibility are reflected not only in the current legislation on administrative offenses and draft laws, the doctrinal field, but also in the legal positions of the courts of higher instances. So, for example, such judicial practice forms a certain ratio of such principles as the principle of equality of persons and the principle of differentiation of administrative responsibility. The Constitutional Court of the Russian Federation, on the one hand, recognizes the existence of special rules for bringing to administrative responsibility officials performing certain state functions, on the other hand, states that inviolability cannot be considered as a personal privilege of a certain person, exempting him from responsibility for criminal and administrative offenses committed (see Resolution of the Constitutional Court of the Russian Federation dated 04/12/2002 N 9-P "In the case of checking the constitutionality of the provisions of Articles 13 and 14 of the Federal Law "On General Principles of Organization of Legislative (Representative) and Executive bodies of State Power of the Subjects of the Russian Federation" in connection with the complaint of citizen A.P. Bykov, as well as requests from the Supreme Court of the Russian Federation and the Legislative Assembly of the Krasnoyarsk Territory" // "Russian Federation newspaper", No. 75, 04/25/2002). In this case, the constitutional justice body is trying to deduce, in our opinion, a formula of administrative responsibility based on the equality of all before the law and the court and at the same time using in its mechanisms the criterion of individualization, differentiation of administrative responsibility, selective approaches to the imposition of administrative punishment based on taking into account various characteristics, properties and signs of a specific offense. In this regard, scientists consider the deepening of individualization in bringing to administrative responsibility as a reflection of a certain liberalization of both the entire institution of administrative responsibility and the practice of its application in certain areas, primarily in the economic sphere.

Thus, regulation of relations in the field of customs activity remains one of the areas of close attention of the state. The establishment and development of effective customs regulation, ensuring, on the one hand, freedom of economic activity and the promotion of international trade, and, on the other hand, national and international security, is unthinkable without the use of the institution of public responsibility, an important component of which is administrative responsibility.

In this regard, there were constant changes in the conditions for bringing participants in foreign economic activity to administrative responsibility. If we trace this dynamics, it should be noted that the legislator consistently focused on the principles related to the individualization of administrative punishment, the liberalization of administrative responsibility, taking into account its connection with control and supervisory activities ^[17]. Similar principles are inherent in the regulation of both direct violations of customs rules and related compositions attributed to the competence of customs authorities (for example, violations of currency legislation). At the same time, it should be noted that initially the legislator fixes the specifics of administrative offenses in the field of customs affairs by establishing a number of procedural features (bringing individual entrepreneurs to administrative responsibility to the extent provided for legal entities; specifics of the purpose of confiscation of the instrument of commission or the subject of an administrative offense for violations of customs rules), emphasizing the importance and significance of protecting interests in in the customs sphere, the latter's connection with issues of national security, financial stability and stability of the state, threats and high-level risks.

It is difficult to overestimate the importance of the interpretation and justification of the principles of administrative responsibility by the Constitutional Court of the Russian Federation. Scientists rightly note the fact that, largely due to the influence of constitutional norms in the interpretation of the Constitutional Court of the Russian Federation, the general legal principle of certainty of legal norms began to be actively applied in the Institute of Administrative responsibility, despite the lack of specific regulation in the Administrative Code of the Russian Federation ^{[18, p. 118]}.

For the purpose of such regulation, approaches to administrative responsibility should be formalized in the Administrative Code of the Russian Federation: it is necessary to define clear legal grounds for such responsibility, regulate the procedure for its occurrence, establish its forms, ensure the adequacy of the applied measures of administrative penalties to the nature of administrative offenses and correctly identify the subjects of administrative jurisdiction authorized to apply them ^{[8, p. 43]}.

Work on the new text of the Administrative Code of the Russian Federation and its procedural part has been going on for several years. Among the achievements that have already been achieved in the development of the draft of such a document, experts call the expansion of the system of principles of administrative responsibility by including the principles of humanism and justice, as well as the development of the principle of individualization of administrative punishment. Thus, individual entrepreneurs will be singled out as an independent subject of offenses, responsibility for this category of persons will be differentiated ("There are notable achievements in the work on the new text of the Administrative Code of the Russian Federation." An electronic resource. https://fparf.ru/news/fpa/v-rabote-nad-novym-tekstom-koap-rf-est-zametnye-dostizheniya / (mod. date: 11/25/2024). It seems that the consolidation of the principles of administrative responsibility in the legislation on administrative offenses is of great importance for the development of the institution of administrative responsibility itself, its adequate, proportionate and effective use in the arsenal of all means of state regulation. In this sense, the norms-principles are the foundation that ensures the unity of the legal institution of administrative responsibility ^{[8, p. 43]}.

Conclusion

At the present stage of the formation of the Russian rule of law, an essential understanding of legal responsibility is especially important for carrying out political, economic and legal reforms. It will meet public expectations if it meets the generally recognized principles of legality, justice and inevitability ^{[19, p. 49]}. Of course, the principles of administrative responsibility are based on the principles of legal responsibility in general, but at the same time they refract the specifics of administrative responsibility, reflect the peculiarities of administrative and legal relations. A clear system of principles of administrative responsibility will ensure the continuity and consistency of administrative and legal regulation, limit administrative and judicial discretion in the administrative and jurisdictional process, and build administrative and procedural links between the institute of administrative responsibility and other public law institutions.

In modern conditions, when a significant number of administrative offenses are socially dangerous acts, and their commission leads to a decrease in the level of safety of various types of human activity, poses a threat to the national security of Russia ^[20], the principles of administrative responsibility enshrined in legislation are designed to ensure the rights and legitimate interests of citizens and organizations in interaction with public authorities.