Theoretical Foundations of Bringing MFC Employees to Administrative Responsibility: Problems and Solutions

Yurkova Ol'ga Aleksandrovna Postgraduate, Department of Administrative Law, Moscow University of the Ministry of Internal Affairs of Russia named after V.Ya. Kikotya 117437, Russia, Moscow, Akademika Volgina str., 12 79688786169@ya.ru Other publications by this author

Administrative liability is one of the types of legal liability provided for by law. Such responsibility provides for categorical imperative methods of coercion and puts the subject responsible in a subordinate-coercive position. This type of responsibility is, in fact, state coercion for violating the permissible limits of lawful behavior. This type of legal liability is public law and is universal in nature, since it applies to a very wide range of persons.

As Professor S.M. Zyryanov notes in his work: "The subjects of administrative responsibility are not only individuals and legal entities, but also individual entrepreneurs, as well as officials." The author notes a reduction in the requirements for proceedings in cases of administrative offenses, the introduction of duplicate compositions into the Code of the Russian Federation on Administrative Offenses, as well as compositions that do not occur at all, or occur in isolated cases, the "gross" nature of production, when only the number of compiled materials and the frankly repressive nature of administrative prosecution in some cases are taken into account cases ^{[5, pp.15-16]}.

One of the most important problems of administrative responsibility, universally noted in legal science, is a significant blurring and uncertainty of the boundaries of administrative responsibility. This issue has been repeatedly investigated by such scientists as D.N. Bakhrah, S.N. Bratus, I.A. Galagan, N.D. Durmanov, Yu.X Kalmykov, etc. Differentiating administrative responsibility from criminal, administrative scientists agreed that the most important criterion for distinguishing crimes and administrative offenses is the public danger of the act ^{[9, p.212]}. As F. List noted: "A crime is a generally dangerous act, and an administrative offense is only disobedience" ^{[7, p.101]}.

For our research, the concept of administrative legal personality is extremely important, that is, the legal consolidation of the subject of administrative responsibility, since the MFC employee must be identified for the interests of administrative law as an individual, as an official, or as a representative of a legal entity. That is, the issue of bringing an MFC employee to administrative responsibility is nothing more than a question of his legal status, since the legal personality of a legal subject is the ability to exercise his rights and bear the corresponding duties.

At the same time, it is necessary to note a significant difference between the concept of administrative legal capacity and administrative capacity from similar concepts of a civil nature.

If we examine the concept of civil legal capacity, we will find that it is enshrined in law. According to Article 17 of the Civil Code of the Russian Federation, the ability to have civil rights and bear duties (civil legal capacity) is recognized equally for all citizens. Civil legal capacity arises at the moment of birth of a citizen and ends with his death ^[1].

Unlike civil legal capacity, administrative legal capacity obviously has a different framework. For example, in relation to a legal entity or an official, it cannot exist from birth and end at the moment of death, since a legal entity arises from the moment of its state registration. An official is recognized as a subject of administrative law from the moment of granting him administrative authority. Thus, for an employee of the MFC, the determining factor will be the nature of his powers, which he is given when carrying out his activities.

The question of the nature of the powers of MFC employees should be investigated from the scientific side, namely from the point of view of the nature of the emergence of administrative authority. If the provision of public services is the implementation of the functions of an executive authority in the exercise of certain delegated state powers ^[4], then it can be assumed that the MFC employee is an administrative and authoritative entity and has its own administrative and legal powers. However, in this case, he is a civil servant and must be included in the system of state authorities, which is not currently provided for by law. The activities of the MFC in providing state and municipal services are intermediary and are not included in the types of public service.

According to Part 1 of Article 1 of Federal Law No. 58 "On the System of Public Service of the Russian Federation", the public service of the Russian Federation is the professional official activity of citizens of the Russian Federation (hereinafter referred to as citizens) to ensure the execution of the powers of: the Russian Federation; federal state authorities, other federal state bodies; subjects of the Russian Federation; state authorities of subjects of the Russian Federation Of the Russian Federation, other state bodies of the subjects of the Russian Federation ^[3].

In accordance with Article 2 of Federal Law No. 210, an employee of the MFC does not independently provide a public service, this service is provided directly by the state or municipal body itself.

M.S. Pochetalin understood a civil servant as a person who "permanently or temporarily, by appointment or by choice, holds a position in the state apparatus, performing state official duties for a certain remuneration" ^{[10, p.4]}.

G.N. Kuleshov and A.V. Maryan supplement the system of signs by the fact that a citizen acquires the status of a state civil servant in accordance with the act of appointment to the position and with the service contract ^{[6, p.29]}.

Thus, the main features of a civil servant can be considered:

1. Belonging to the citizenship of the Russian Federation;

2. A substitute position is a state position in the apparatus of a state body;

3. The official duties performed are aimed at fulfilling the functions of the state;

4. The presence of an act of appointment to a public position;

5. Remuneration for the performance of official duties is carried out at the expense of state funds.

Thus, there are aspects in the definition of public service that speak in favor of MFC employees as potential civil servants, and aspects that indicate the impossibility of such a status for MFC employees. Thus, the absence of public civil service positions associated with the MFC indicates the impossibility of recognizing MFC employees as civil servants in the service of the state. In addition, the MFC employee as a profession has not yet taken place, and there are no grounds for this, because the activity of the MFC institution is intermediary, and mediation cannot be recognized as a professional activity. In addition, the recognition of intermediary activity as official also looks rather doubtful.

An important question arises as to whether employees of a state or municipal institution, including an autonomous one, can be independent subjects of administrative law with respect to the powers granted to them to provide public services, if such powers are not administrative and authoritative.

The answer to this question will determine the possibility of independently bringing an MFC employee to administrative responsibility as an official with separate powers, and not an individual as an ordinary subject of an administrative offense.

The issue of the legal status of an IFC employee is the most problematic and difficult in the entire doctrine and concept of IFC institutions.

The unsolvability of its unambiguous definition is determined by two aspects: 1) the impossibility of embedding the institutions of the MFC in the "matrix" of the system of public service and public authority, which generates, as a consequence, the lack of direct and independent administrative authority of the employees of the MFC, 2) budget financing of the MFC from the budgets of regions and municipalities and the organizational and legal form of state autonomous or budgetary institutions, which does not allow to apply for full civil status.

In his research devoted to the analysis of the legal status of state and municipal services, Ch.O. Mongush notes that it is necessary to distinguish between state and municipal services with services provided under civil law. State and municipal services are provided on a reimbursable basis, and the author proposes to consider their cost as the cost of the state fee for their commission, while the regulatory legal act establishing the amount of such a state fee may exempt certain categories of citizens from paying it. In addition, an important feature of the provision of public services is the provision of them by the authorities ^{[8, pp.41-43]}.

This approach to the concept of state and municipal services in comparison with civil legal services deserves attention, however, in our opinion, it does not allow us to reveal the essence of its legal status.

Taking into account the fact that the MFC provides only those services that are contained in the list to the agreement concluded with the state body in each case, the limits of responsibility of an MFC employee who cannot act within the framework of the Code of Administrative Offences of the Russian Federation ^[2] as an independent official are strictly limited, and his administrative responsibility occurs in rare cases. cases.

Thus, in accordance with art.2.4 The Administrative Code of the Russian Federation is subject to administrative responsibility of an official in the event of an administrative offense committed by him in connection with non-performance or improper performance of his official duties. The activities of the employees of the MFC do not have the legal status of a service as such, in fact, it is the implementation and enforcement of the norms of the agreement concluded between the MFC and the state body, and no powers are transferred to the employees of the MFC. Employees of the MFC are not included in the staff of these state bodies.

Moreover, the study and analysis of the norms of Federal Law No. 210 indicates that employees represent the interests of citizens-applicants in state bodies. This is directly provided for by the functions of the MFC (Part 1 of Article 16 of Federal Law No. 210). This norm also describes in detail the limits of responsibility of the employees of the MFC, in connection with which it is of particular interest to us.

Thus, according to Part 5 of Article 16 of Federal Law No. 210, the limits of responsibility of MFC employees are limited to the following set of objects of possible offenses:

- information completeness of requests for the provision of state or municipal services and their compliance with the information transmitted by the applicant to the multifunctional center, other documents received from the applicant;

- completeness and compliance with the complex request of the statements submitted to the body providing the state service, the body providing the municipal service, compiled on the basis of the complex request, other documents, information and (or) information necessary for the provision of state and (or) municipal services;

- timely transmission of requests for the provision of state or municipal services to the body providing the state service, the body providing the municipal service;

- compliance with the rights of personal data subjects, compliance with the legislation of the Russian Federation, which establishes the specifics of handling information, access to which is restricted by federal law.

- compliance of scanned documents provided by the applicant in electronic form with paper documents.

It is obvious that the set of objects of possible offenses is extremely small and limited by the concepts of "information completeness", "timely transmission" and "compliance with the rights of applicants". The most significant and essential object of the above is, of course, the observance of the rights of personal data subjects and compliance with legislation on the handling of restricted access information. It is these objects that can be the main objects of administrative offenses on the part of MFC employees.

Also an important aspect of the legal status of the employees of the MFC and the center itself is the norm of clause 9 of Article 16 of Federal Law No. 210, according to which losses caused to a person as a result of improper performance by the multifunctional center or its employees of the powers established by law are compensated in accordance with the procedure established by civil legislation.

The legislator, unable to reliably and indisputably establish the legal status of MFC employees as officials, as individuals or as representatives of a legal entity, followed the path of isolating the administrative norm on the responsibility of MFC employees, where he preferred to ignore the legal status of the subject and highlighted in the norms of Article 5.63 of the Administrative Code of the Russian Federation "Violation of legislation on the organization of the provision of public services and municipal services" of MFC employees as one of the possible subjects of administrative responsibility. The objective side of the offense under Article 5.63 of the Administrative Code of the Russian Federation consists in violation of the procedure for the provision of public services provided by the federal executive authority or the state extra-budgetary fund of the Russian Federation, which entailed the failure to provide public services to the applicant or the provision of public services to the applicant in violation of the established deadlines. That is, the composition of an administrative offense under Article 5.63 of the Administrative Code of the Russian Federation forms the failure to provide a public service, or provision in violation of deadlines, if this involves a violation of the procedure for providing a public service.

It is obvious that the issue of bringing to administrative responsibility under the norm of Article 5.63 of the Administrative Code of the Russian Federation will initially be a conflict of laws and have many controversial aspects. Considering that the subjects of responsibility in the norm of Article 5.63 of the Administrative Code of the Russian Federation are officials of the federal executive authority or the body of the state extra-budgetary fund of the Russian Federation; employees of the MFC; employees of another organization performing the functions of the MFC; or an employee 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 the state cadastral registration of real estate.

The choice of the subject of attraction seems to be large, and the involved subjects will seek to shift responsibility for the violation to each other in order to avoid it. There are a lot of reasons and reasons for such collisions – the vagueness of the formulation of the objective composition of the offense contributes to all this.

Thus, a violation of the procedure for providing a public service under Article 5.63 of the Administrative Code of the Russian Federation in conditions when a request for its provision passes through the chain from an intermediary (MFC) to a state body and a direct executor (an official of a state body) can be allowed in several places of this chain at once, and all participating persons will strive to avoid responsibility. In such conditions, when the same subjects of responsibility under Article 5.63 of the Administrative Code of the Russian Federation are involved for the same offense, it will be almost impossible to accurately and unambiguously determine who exactly from the chain of performers committed the desired violation of the order. Due to the multiplicity of subjects, which are all subjects of Article 5.63 of the Administrative Code of the Russian Federation, it will be practically impossible to bring a specific culprit to justice indisputably and legally accurately.

Moreover, the very subject structure of Article 5.63 of the Administrative Code of the Russian Federation equates the employees of the MFC to officials of state authorities, which is a mistake in the legal status, since it is legally wrong to give equal responsibility to such subjects who are not equal in authority, for violations in which, in fact, responsibility is assigned. So, if an official performing a public service has direct authority and commits a violation in the performance of the service, bringing him to responsibility as an official is lawful and justified. But if a similar responsibility is assigned to an employee of the MFC who does not have any independent administrative powers, then this is, at least, unfair. The equalization of persons with different legal status within the framework of the administrative law seems to be erroneous and does not correspond to the principles of justice of punishment. To resolve the legal conflict, it is necessary to differentiate the positions of the multifunctional center for the provision of state and municipal services, which will allow separating administrative responsibility for officials from the responsibility of ordinary employees of the institution (for example, hall operators who directly accept and issue documents to applicants).