Current issues of administrative responsibility: security aspects

Pligin Vladimir Nikolaevich Doctor of Law Head of the Department 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

Decree of the President of the Russian Federation No. 400 dated July 2, 2021 "On the National Security Strategy of the Russian Federation" in accordance with federal Laws No. 390-FZ "On Security" dated December 28, 2010 and No. 172-FZ "On Strategic Planning in the Russian Federation" dated June 28, 2014 approved the National Security Strategy of the Russian Federation Federation (hereinafter referred to as the Strategy). The strategy focuses on ensuring and protecting the national interests of the Russian Federation, which is carried out by concentrating the efforts and resources of public authorities, organizations and institutions of civil society on the implementation of strategic national priorities, which include, in particular, such areas as: state and public security, information security, economic security, scientific and technological development, environmental safety and rational use of natural resources, protection of traditional Russian spiritual and moral values, culture and historical memory, etc. It is natural that the implementation of the Strategy is possible only in conditions of developed legal institutions, which in the broadest sense of the word form the structure and determine the activities of state and public bodies and organizations to fulfill the objectives of the Strategy, as well as create mechanisms to ensure the protection of the directions and goals stated in this document. The main comprehensive tools for solving this problem can be presented within the framework of the development of such a mega-branch of law as administrative law, designed to determine the structure and competence of executive authorities, focused specifically on solving modern problems of Russian statehood. This presupposes, first of all, an understanding of the entire structure of public power, rejecting naive ideas about the omnipotence of the market or the a priori effectiveness of self-organization institutions, but also with the understanding that only a developed economy, including widely represented small and medium-sized businesses, can ensure the consistent socio-economic development of Russia. The institution of legal responsibility undoubtedly plays an essential role in protecting these priorities, in our case, as part of the improvement and development of administrative responsibility. A thoughtful understanding of this area of legal responsibility is of particular importance due to the fact that work is underway to codify legislation on administrative offenses. As noted in the explanatory note to the draft federal law "Code of the Russian Federation on Administrative Offenses", the draft federal law was developed on the basis of the Concept of the new Administrative Code, published on June 10, 2019 on the official website of the Government of the Russian Federation.

The need to prepare a draft law is due to the fact that 22 years after the entry into force of the current Code of Administrative Offences of the Russian Federation, there is an objective need for scientific understanding and analysis of the practice of its application that has developed over the years, as well as a critical assessment of the effectiveness of its norms, taking into account numerous changes and constitutional requirements.

During the above period, more than 850 federal laws have been adopted, which have already made over 6,000 changes to the Administrative Code of the Russian Federation.

In addition, the ongoing process of development of the modern system of federal legislation in various fields (nature management and ecology, transport and communications, education and healthcare, support for competition and the securities market, labor market and migration, housing and communal services, traffic, etc.) currently entails the need to regularly clarify the composition of many administrative offenses in the relevant chapters of the Special part of the Administrative Code of the Russian Federation.

The main goals and objectives of the preparation of the new Administrative Code, defined in the Concept, in particular, are defined:

reducing the administrative burden on citizens and businesses;

updating and optimization of the composition of administrative offenses in connection with changes in industry legislation;

synchronization with the reform of state policy in the field of control and supervisory activities and mandatory requirements.

The institute of administrative responsibility in modern legal science can be viewed in different ways. Among the most relevant and in-demand aspects of the positioning of administrative responsibility is the study of it as a legal institution (public law institute), as a component of state (administrative) coercion, as part of the mechanism of public administration as a whole, as a category of procedural (procedural) properties, as a phenomenon opposed to incentives and incentives, etc. Relatively less We see the aspects of considering the institution of administrative responsibility in the context of security as developed in science. Despite the fact that the connection of this type of legal liability with various levels and areas of security seems quite obvious, we consider it necessary to focus on some aspects of administrative responsibility from a security perspective.

Levels of scientific positioning of administrative responsibility in the context of security

We consider it possible to identify several levels of understanding of administrative responsibility in the context of security. Firstly, the first (more precisely, the primary) level of understanding of administrative responsibility from the point of view of safety is administrative responsibility for violations of the requirements of certain types of safety (fire ^[1], industrial ^[2] and other types). Administrative responsibility in this case is the implementation of a sanction for violating the rules of various types of security.

Secondly, administrative responsibility is reasonably considered and somewhat more broadly, as administrative responsibility in the field of security, of its individual types ^[3-4].

Moreover, at these two levels, administrative and criminal liability are often investigated in the context of public liability ^[5-6]. Experts today emphasize the relevance of the issues of the ratio of administrative and criminal liability, justifying this by several factors. Firstly, the fact that administrative responsibility originates from criminal law. Secondly, the Supreme Court of the Russian Federation initiated the draft federal law "On Amendments to the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation in connection with the introduction of the concept of criminal misconduct." Thirdly, the development of new draft legislation on administrative offenses. Fourth, the expansion of the practice of using elements of crimes with administrative prejudice ^{[7, p. 106]}.

There are also facts of developing security issues in certain areas (mainly of an economic nature related to the turnover of goods, their quality and safety) using approaches that combine the resource of administrative and civil liability ^[8], which seems quite natural from the point of view that in modern relations it is increasingly difficult to determine the line between public and private interests; today their interpenetration, the overlap of the spheres of private law and public law regulation is increasing, mixed or complex legal institutions are actively being formed, incorporating the norms of the branches of private and public law.

At the same time, the mixing of administrative responsibility and, for example, responsibility within the framework of labor legislation requires critical reflection. (See: Article 5.63 of the Administrative Code of the Russian Federation. "Violation of the legislation on the organization of the provision of state and municipal services", which establishes that "1. Violation by an official of a federal executive authority or a body of the state extra-budgetary fund of the Russian Federation, an employee of a multifunctional center, an employee of another organization performing the functions of a multifunctional center in accordance with the legislation of the Russian Federation, or an employee of a state institution engaged in the provision of public services in the field of state registration of rights to real estate and transactions with it and the state cadastral register accounting of real estate, the procedure for the provision of public services, -

entails the imposition of an administrative fine ... on employees of multifunctional centers, employees of other organizations performing the functions of a multifunctional center in accordance with the legislation of the Russian Federation, employees of a state institution engaged in the provision of public services in the field of state registration of rights to immovable property and transactions with it and state cadastral registration of immovable property - from one thousand to one one thousand five hundred rubles").

We believe that in this case, disciplinary responsibility is replaced by administrative responsibility, that is, responsibility for organizing the activities of the body is transferred to a specific employee of this body.

Thirdly, administrative responsibility in the structure of the mechanism of legal influence, the mechanism of regulation of a certain sphere of public relations ^[9]. In this case, the institution of responsibility should be correlated with other elements of the regulatory mechanism, for example, with certain types of administrative coercion. In modern conditions of public administration reform, the priority of which dated December 28, 2010 No. 390-FZ "On Security" among the basic principles of ensuring security is the principle of priority of preventive measures in order to ensure security. In our opinion, this implies minimal use (economy) of the resource of administrative responsibility (as well as administrative coercion in general), the use of its potential, which is called "last resort", as an extreme, forced, exceptional measure of influence.

A similar position can be seen in the works of foreign authors, who, in relation to certain areas of regulation (for example, in the field of cybersecurity), indicate the need to use measures not administrative or other liability for violations, but measures of a different nature: organizational, personnel, technical and others ^[10].

Fourth, a more general (or more formalized) approach to considering administrative responsibility in the context of security issues is to consider it as a means (method) of ensuring security, its various levels (national, regional, transnational, international, global) and types (financial, transport and others ^[11-12]).

Legal responsibility as a whole is organically integrated into the system of methods for ensuring law and order and security ^{[7, p. 105]}. Administrative responsibility as the core of public legal responsibility is also "included" in the system of methods for ensuring public law and order and security in all its manifestations.

Fifth, administrative responsibility can also be considered as a guarantee of ensuring and maintaining the necessary level of security in a certain area of regulation. Foreign authors, analyzing the role of administrative responsibility in solving problems of protecting the health of citizens during the pandemic, state the fact that administrative responsibility acted in these extraordinary conditions as an effective legal instrument and at the same time a guarantee that can restrain a critical situation ^[13].

However, it seems that this approach in these conditions (in a "non-crisis" situation) is not so in demand due to the fact that such guarantees should primarily be other institutions characterized by a less coercive nature, institutions of a dispositive nature, or the institution of administrative responsibility should not dominate in the system of security guarantees.

We have provided a far from complete list of possible options for positioning the institute of administrative responsibility from the standpoint of security. Thus, B.V. Rossinsky calls administrative offenses as a threat to national security, which are the basis of administrative responsibility ^[14].

The effectiveness of the use of the institute of administrative responsibility is the key to ensuring safety in a specific area of regulation. It seems that this institution is used in conjunction with other public law institutions, in particular with the Institute of state control (supervision), its individual types ^[15].

Current issues of administrative responsibility from the point of view of ensuring security

On the one hand, the institution of administrative responsibility requires justification of its place in the system of legal responsibility in general and in the structure of public legal responsibility in particular.

On the other hand, this solid, stable place should be based on the independence of this type of responsibility, its separation from other types of responsibility, and at the same time should be based on the links of the institute of administrative responsibility with other legal institutions. Among the latter are the institutions of administrative coercion, state control (supervision), administrative jurisdiction, administrative proceedings and others.

Taking into account the above-mentioned and existing requests in legal science today, we will highlight several key issues, in our opinion, in the research of administrative responsibility in the context of security.

1. Today, in the Russian Federation, against the background of the rapid development of administrative responsibility, two opposite trends have become quite clear. While legislation on administrative responsibility is developing in the direction of strengthening punishments and expanding the scope of protected relations, law enforcement practice seeks to mitigate the impact on offenders ^{[16, p. 34]}.

Such "swings" between the tough approach of the legislator and the liberalism of the law enforcement officer have been observed for a long time. Despite the fact that in recent years the legislator has quite clearly shown his desire to optimize the institution of administrative responsibility by, among other things, expanding opportunities for greater individualization of administrative punishment (replacing administrative punishment in the form of an administrative fine with a warning (Article 4.1.1. of the Administrative Code of the Russian Federation), the specifics of assigning administrative punishment in the form of an administrative fine to socially oriented non-profit organizations organizations and legal entities that are subjects of small and medium-sized businesses, classified as small enterprises, including microenterprises (Article 4.1.2. of the Administrative Code of the Russian Federation), etc.), a certain discrepancy between the positions of the legislator and the law enforcer persists. It seems that this trend affects the state of security in general, the state of security of persons to whom administrative liability measures are applied. We consider it necessary to develop the trend of differentiation and individualization of administrative responsibility ^[4] in the modern regulation of the institution of administrative responsibility, such a trend can increase the level of security provided by such responsibility.

2. In the context of active reform of domestic legislation on administrative offenses and permanent discussion about the possibility of introducing the concept of criminal offenses into legislation, the issues of delineation of administrative and criminal responsibility, the problems of independence of administrative responsibility in the structure of public law responsibility do not lose their relevance.

Yu.P. Solovey draws attention to two main signs of administrative responsibility, from which one should proceed, determining the ways of its possible improvement. Firstly, it is that this responsibility is not before the court, but before the executive authorities, and, secondly, it is implemented outside the procedure used in court ^{[17, p. 57]}. It seems that the indicated essential features of the institution in question are both disadvantages and advantages of the type of legal liability in question. They determine the specific characteristics of the mechanism of its application, which distinguish administrative responsibility from other types of responsibility (for example, efficiency). It is necessary to agree with the authors, who cite among the arguments in support of the independence of administrative responsibility the following: integration into the system of legal responsibility; close connection with criminal responsibility; specificity of administrative responsibility based on the recognition of the historical origins of administrative responsibility associated with its separation from criminal law. All these arguments confirm the inextricable relationship between administrative and criminal liability and justify the need for synchronicity in reforming these types of legal liability ^{[7, p. 108]}.

The latter is noted by many researchers who emphasize the importance of comprehensive coordination of work within the framework of the third codification of legislation on administrative responsibility with activities to improve the criminal law ^[17-18]. Such synchronicity is of great importance from the point of view of security, the legality of public law and order, which are designed to ensure the types of public liability under consideration.

Interestingly, the issues of the ratio of administrative and criminal liability are also relevant for foreign legislation, for example, for anti-doping legislation in China. Thus, the complexity of the interaction between administrative law enforcement and criminal proceedings in anti-doping work is noted, while raising questions of the legitimacy of the relationship between administrative and criminal measures of influence in the field of anti-doping ^[19]. In relation to other areas of regulation (for example, in the field of ecology), scientists also pay attention to the fact that the force of the law depends on the responsibility borne by each person or team. At the same time, they emphasize the role of preventive responsibility, which occupies a leading position, permeating the international responsibility of States, as well as the civil, criminal and administrative responsibility of offenders ^[20]. It seems that with regard to administrative responsibility, the importance of prevention is of particular importance, given that prevention is the main purpose of administrative punishment in domestic legislation.

3. The effectiveness of the institution of administrative responsibility ensures safety as a legally protected value. At the same time, the question of understanding the effectiveness itself in relation to measures of administrative coercion and administrative responsibility in their composition is relevant. What should be considered more effective in this case: the minimal use of administrative liability measures, its replacement with other measures of influence, or its active application with the resulting coercion and legal restriction? Interestingly, when describing the new regulation in certain areas, in particular the environmental one, experts talk about new forms of administrative activity in energy conservation that have appeared quite recently and are not supported by the provisions of current legislation on administrative coercion ^[21].

Thus, even new, innovative forms of interaction between citizens and organizations with government authorities require the provision of administrative enforcement measures, among which a significant place belongs to measures of administrative responsibility. It seems that the most optimal situation in this regard will be when measures of administrative responsibility are normatively fixed, but are used to a minimum extent, providing the opportunity to apply other coercive and other measures of influence on the managed area of social interaction in order to improve it, achieve the necessary level of security as a socially significant result within its framework.

Conclusion

In the system of priority directions for the development of administrative law, which determine the nearest trends in its evolution, in addition to the issues of functioning of public authority, digitalization, the "third" codification and development of administrative procedural legislation ^{[22, p. 125]}, it is necessary to identify the issues of the development of the institution of administrative responsibility in the context of ensuring all types of security.

The effectiveness of a modern security system is impossible without a full-fledged institution of administrative responsibility. The latter in modern conditions is associated with the solution of a number of both doctrinal and practical problems related to the place and role of administrative responsibility in the system of public legal responsibility and legal responsibility in general, with the theoretical and legal justification of the specifics of administrative responsibility and at the same time its links with other institutions of public legal nature, with the definition of the place of administrative responsibility responsibility in the system of administrative coercion measures.

However, the main thing will be a study that gives a real understanding of the effectiveness of the institution of administrative responsibility in the context of security, which involves studying the statistics of the application of sanctions and their actual execution, which, as statistics from the Federal Bailiff Service of the Russian Federation show, is far from satisfactory results.

The problem of the consequences of the application of administrative sanctions on the subsequent legal status of a person, for example, related to access to the profession, also needs to be deeply understood, as may be the case when appointed as a federal or magistrate judge, when it is supposed to study all administrative offenses committed by the applicant and the possible impact of violations on the objectivity of the administration of justice.