The influence of the Soviet period (1917-1991) on the development of modern administrative and tort law

Izyumova Evgeniya Sergeevna PhD in Law Judge, City Court of the Inta city of the Komi Republic 169600, Russia, respublika Komi, g. Pechora, ul. Rusanova, 43, kv. 191 izumchik74@rambler.ru Other publications by this author

Administrative-tort law exists in any form of government and develops depending on the evolution of the state from one economic and political stage to another. The political structure of the state, the economic and social conditions of society, the philosophical and legal views of representatives of certain branches of science, as well as the state of crime and the general level of legal awareness of the population had a significant impact on the development of administrative and tort law.

Recently, there have been quite a lot of problems in the field of legal regulation of administrative responsibility. In connection with the emerging reform of administrative and tort legislation ^[1], it seems necessary to turn to the historical prerequisites for the formation of the institution of administrative responsibility, which determined its features.

The Soviet period had a significant impact on both the doctrine of administrative law and administrative-tort legislation. S.M. Zyryanov notes the preservation of the genetic connection of the Administrative Code of the Russian Federation with Soviet legislation, "the formation of which began in the early years of Soviet power" ^{[2, pp. 480-486]}.

By the end of the XIX century, an extensive legal framework had been formed in Russian legislation, which made it possible to recognize an administrative offense (offense) as a separate type of public law torts. The coup d'etat of October 25, 1917, was marked by a sharp rejection of the pre-revolutionary system of law, the principle of separation of powers, as elements of bourgeois society.

In the conditions of an unstable political system, against the background of the changes that have taken place, the destruction of state institutions that ensure law and order, the established government needed to ensure and maintain the regime, streamline relations with society, in this regard, in the post-revolutionary period, the rule-making activity of the Soviets was at the peak of its activity.

In the short period of 1917-1918, many normative legal acts containing norms on administrative responsibility were adopted, which for the most part did not distinguish between a crime and an administrative offense.

The defining feature underlying the formation of administrative responsibility in the Soviet period was the imposition of punishment administratively by a specially authorized body, and not by a court. That is, administrative responsibility was opposed to "judicial" responsibility, and did not depend on the severity (public danger) of the offense committed. Moreover, the list of possible punishments imposed administratively, in addition to a fine, included imprisonment and forced labor. As V.G. Gulumyan notes, both administrative (administratively appointed) and judicial responsibility could be assigned for the commission of crimes ^{[3, p. 143]}.

It is the basis for distinguishing a crime from an administrative offense that distinguishes responsibility for "unimportant crimes" and "misdemeanors", which originated in imperial Russia from the resulting administrative responsibility in the Soviet state.

Perhaps the problem that has arisen at the present time of distinguishing the concepts of "crime", "offense" and the planned introduction of "criminal offense" is the result of choosing the wrong basis for their differentiation at the beginning of the Soviet period.

In 1922, the first Criminal Code of the RSFSR was adopted. This normative act did not clearly distinguish between a crime and a misdemeanor, and included a number of norms providing for administrative penalties. For example, Article 79 of the Criminal Code of the RSFSR established an administrative penalty for violating the deadlines for paying taxes or non-payment, as well as refusal to perform duties or perform work of national importance for the first time. Also, a number of articles of the Criminal Code of the RSFSR of 1922 provided for the imposition of administrative penalties for violating mandatory resolutions of Provincial and County Executive Committees and Presidium ^{[4, 5]}.

Thus, with the adoption of the Criminal Code of the RSFSR of 1922, the final separation of crime and offense did not occur, meanwhile, the legislator increasingly uses the term "administrative penalty", which implies a simplified procedure for its application out of court.

The policy of collectivization and dispossession of peasants that began in the 1930s influenced the development of administrative and tort legislation, giving it a criminal-legal orientation. Often, criminal penalties up to imprisonment were imposed for offenses that did not have a sign of public danger, but were ideologically recognized as such. Legislatively, this was not even enshrined in the Criminal Code of the RSFSR, but was approved at the level of the SNK and the Central Committee of the CPSU (b). A striking example of such rulemaking is the Resolution of the Central Committee of the CPSU (b) and the Council of People's Commissars of the USSR "On measures to protect public lands of collective farms from squandering" ^[6], which established criminal liability for increasing household plots in excess of the sizes provided for by the charter of the agricultural cartel, that is, in fact, for administrative misconduct.

This kind of tightening and mixing of the size of sanctions for administrative offenses, and their interpolation into the limits of criminal responsibility, gave rise to the spread of state repression by the 1940s.

Some scientists define the beginning of the development of legislation on administrative responsibility from the Soviet, post-revolutionary period. For example, according to M.V. Kostenkov, legislation on administrative offenses began to develop in the 1920s. It was during this period, in his opinion, that scientists and practitioners began to fundamentally raise the question of the differentiation of crimes and administrative offenses, as well as the question of codification of legislation on administrative offenses ^{[7, p. 206]}. V.G. Chmutov defines 1917 as the beginning of the formation of legislation on administrative responsibility ^{[8, p. 31-37]}. 

Meanwhile, the science of administrative law in this period (1917-1937), as K.S. Belsky notes, was in a deep methodological crisis ^{[9, 151-155]}.  According to Ts.A. Yampolskaya, "the first decade of Soviet power, the science of administrative law dragged out a very miserable existence, and by the end of the 1920s and early 1930s it ceased to exist at all. Teaching of administrative law in higher educational institutions has stopped" ^{[10, pp. 139-140]}. Especially at the beginning of the formation of the Soviet state, "legal nihilism was widespread among lawyers closely associated with the party apparatus and managerial practitioners. Soviet law was regarded as a "half-right" that had no prospects for development in the Soviet state ^{[11, p. 127]}.

It should be noted that such denial of the existence of law in general could not have a positive impact on the legislative process. Normative acts regulating issues of administrative responsibility of the beginning of the Soviet period are characterized by fragmentation, chaotic, low level of legal technology. It seems erroneous to believe that the years of denial of the very existence of law, both on the part of scientists and politicians, may be the beginning of the emergence of administrative-tort law, since this period is rather a regression in such development. A law created without taking into account the scientific knowledge that makes up the philosophy of law loses its social value.

The active development of the theory of administrative responsibility, which defines the grounds for distinguishing between a criminal offense and an administrative tort, began in the post-war period of the "Khrushchev thaw", a characteristic feature of which is the substitution of criminal administrative responsibility, the preservation of the ordered nature of management.

An important normative document in the development of administrative and tort legislation should be recognized as the Decree of the Presidium of the Supreme Soviet of the USSR on June 21, 1961 "On further restriction of the application of fines imposed administratively", the general trend of which is to delegate to the courts the consideration of cases of administrative offenses, where the sanctions of the article provided for penalties affecting constitutional rights (movement and freedom of work).

As noted by I.A. Galagan, the participation of the court in bringing to administrative responsibility and control over the activities of administrative bodies for sentencing was not considered as a condition that turns the administrative procedure for bringing to justice into a judicial one. Accordingly, Soviet administrationists tried to combine both of these criteria and define them as essential characteristics of the same administrative responsibility ^{[12, pp. 213-225]}.

In turn, according to Professor A.I. Kaplunov, "for administrative responsibility, which was originally conceived as responsibility implemented "administratively", the appointment of administrative penalties by judges should be an exception, not a rule" ^{[13, pp. 518-524]}.From the point of view of S.A. Starostin, administrative responsibility should be imposed exclusively by executive authorities ^{[14, C. 109, 119-118]}.

It seems that the difficulties currently arising in distinguishing between administrative and criminal responsibility are due to the fact that the modern legal system was built on fragments of Soviet law, during the formation of which there was a blurring of the legal differences between crime and administrative offense (offense), leaving a rather conditional, formal-legal boundary between them.

The final legislative separation of administrative and criminal responsibility occurred with the first attempt to codify legislation on administrative responsibility, which became the Basis of the Legislation of the USSR (hereinafter referred to as the Basis) and the Union Republics on Administrative Offenses in 1980 ^[15].

As I.V. Panova notes, the adoption of the Fundamentals was a turning point, evidence that the legislator refused to introduce the Code of Criminal Offenses, which at that time was being developed by a group of specialists in criminal law, and followed the path of codification of the norms of administrative law for individual institutions ^{[16, pp. 4-29]}.

         The purpose of the legislator was to streamline administrative and tort legal relations, to regulate the main provisions on administrative responsibility, to give them national significance, to ensure unity of understanding of this legal institution in all Union republics. In this normative legal act, for the first time at the legislative level, the concept of an administrative offense (misdemeanor) is formulated and fixed, which has not changed in principle and is currently used.

Another feature of the legislation on administrative responsibility, which appeared with the adoption of the Fundamentals of the Legislation of the USSR, was the unified procedure for considering cases of administrative offenses, both for courts and for other jurisdictional bodies, which in its structure has acquired a quasi-judicial character.

On June 20, 1984, the tenth convocation of the Supreme Soviet of the RSFSR adopted the RSFSR Code of Administrative Offenses.

He finally consolidated a two-level system of legal regulation, referring to the jurisdiction of the USSR the settlement of issues of all-Union significance, the establishment of general principles and provisions on administrative responsibility, as well as its establishment for violations in the areas of the most important public relations. The Union Republics have been delegated the right to solve the remaining tasks of administrative and tort legislation.

The analysis of the RSFSR Code of Administrative Offences shows that, in general, it comprehensively resolved issues of administrative responsibility, which caused a relatively stable and rather long period of its existence under the conditions of economic and political reforms, including the decade after the collapse of the USSR.

In connection with the analysis, A.P. Shergin's statement seems indisputable that "the origins of the separation of administrative responsibility lie in the historical features of Russia's development, its scale, the needs of the executive's prompt response to offenses and the lack of opportunities for courts to consider an increasing number of cases of administrative offenses" ^{[17, p. 176]}.

Despite the fact that the Russian Federation is the historical successor of the USSR and the RSFSR, as a state it is strikingly different from them, due to the changes that have taken place in the last three decades related to the radical transformation of the state structure, the change in the socio-economic basis of society, and accordingly the legal regime, the foundation of which after the collapse of the USSR was the Constitution of the Russian Federation.

Currently, the role of administrative responsibility has changed significantly, as has its understanding in the public legal consciousness, ceasing to be a surrogate for criminal coercion. At the same time, to date, it has not been freed from the foundations laid in the Soviet period, which once again confirms the need for a comprehensive state policy in the field of public liability, which should be aimed at updating the current legislation, taking into account its historical and theoretical understanding, a clear distinction between crime and administrative offense, and in particular perspective and criminal misconduct, their prevention and prevention.