Perspectives and Ways of Developing Alternative Methods for Calculating Administrative Fines

Gluzdak Gleb Nikolaevich ORCID: 0000-0001-6071-3350 Student, Department of State and Legal Disciplines, St. Petersburg Law Institute (branch) of the University of prosecutor's office of the Russian Federation 191104, Russia, Saint Petersburg, Liteyny Prospekt, 44 g.gluzdak.mail@gmail.com Likhomanova Yana Yur'evna Student, Department of State and Legal Disciplines, St. Petersburg Law Institute (branch) of the University of prosecutor's office of the Russian Federation 191104, Russia, St. Petersburg, Liteyny Prospekt str., 44 lihomanova2003yana@gmail.com

Bulgakova Luiza Siradzheddinovna Senior Lecturer of the Department of State and Legal Disciplines of the St. Petersburg Law Institute (branch) of the University of prosecutor's office of the Russian Federation 191104, Russia, St. Petersburg, Liteyny Prospekt str., 44 6luiza@mail.ru

The important role of a fine as a type of punishment has been preserved throughout the history of the development of domestic administrative law ^{[1, p. 317]}. After the adoption of the Code of Administrative Offences of the Russian Federation on December 30, 2001 (hereinafter referred to as the Administrative Code of the Russian Federation), the administrative fine has not lost its relevance. As B. V. Rossinsky notes, an administrative fine "is quite effective and the most common measure of coercive influence" ^{[2, p. 439]}. Currently, this type of administrative sanction prevails over the rest: in particular, the share of administrative fines among the total number of administrative penalties imposed in 2019 was 72%, in 2020 — 68%, in 2021 — 64% ^[11].

Punishment in the form of monetary punishment performs, first of all, the function of general and private prevention, as well as a punitive function ^{[3, pp. 33-34]}. General prevention involves the prevention of the commission of administrative offenses by all citizens, and above all by those of them who are prone to delinquent behavior. Private (special) prevention is aimed at preventing the commission of repeated offenses by the offender himself. The punitive function is connected with the punishment of the offender, which imposes on him the duty of suffering the negative consequences of his actions. These functions determine the purpose of administrative punishment, formulated in Article 3.1 of the Administrative Code of the Russian Federation.

The prevalence of the application of an administrative fine is largely due to the effectiveness of monetary penalties, as well as its importance as one of the sources of income of the federal budget and the budgets of the subjects of the Russian Federation ^{[4, p. 61]}.

However, the question is currently being raised about the effectiveness of an administrative fine as a type of administrative punishment. In particular, for several years, the most common offense remains non-payment of an administrative fine, the responsibility for which is provided for in Part 1 of Article 20.25 of the Administrative Code of the Russian Federation ^[11]. In addition, according to statistical reports, only 57% of the total amount of fines imposed by the traffic police was paid for 2021 ^[12]. When considering the amendments to Article 3.5 of the Administrative Code of the Russian Federation, the attempts of the legislator to increase the effectiveness of monetary penalties as a type of administrative punishment are traced.When the original version of the Administrative Code of the Russian Federation was put into effect, the main way to calculate the amount of an administrative fine was the minimum wage (hereinafter referred to as the minimum wage).

 The linking of the fine to the minimum wage was due to the rapidly growing inflation rates. In this regard, in accordance with Article 5 of Federal Law No. 82-FZ of 19.06.2000 "On the Minimum Wage" (hereinafter — Law No. 82-FZ), a base amount was set equal to 83.49 rubles in 2000, and 100 rubles in 2001 ^[13]. The value of this indicator is not excluded from the mentioned law to date.However, in 2007, some adjustments were made regarding the effect of the "penalty" minimum wage: amendments to Article 3 of Law No. 82-FZ limited the scope of the minimum wage exclusively to payment for work and calculation of social benefits, and the basic minimum wage for calculating administrative fines was abolished.

In addition, Federal Law No. 116-FZ of 22.06.2007 "On Amendments to the Administrative Code of the Russian Federation regarding Changes in the Way of Expressing Monetary Penalties imposed for an Administrative Offense" amended all articles of the Administrative Code of the Russian Federation, which previously included sanctions multiple of the minimum wage ^[14]. The concept of minimum wage was replaced by an indication of the amount of the fine in rubles. Thus, the legislator completely refused to link the amount of the administrative fine to the base indicator of the minimum wage.This decision was justified by a number of reasons ^[15], however, some of them seem to have lost their significance at the moment.

 In particular, the opinion was expressed that such a binding was difficult for an ordinary citizen to understand, since in order to determine the amount of the penalty, it was necessary to take into account not only the sanction of the article of the Administrative Code, but also the value of the minimum wage at a certain point in time. At the same time, the development of information technologies, the increase in their accessibility to the population has made possible the mass use of information and legal systems that provide the mentioned information. In addition, the development of Internet services by administrative jurisdiction bodies that allow calculating the amount of an administrative fine in a particular case also meets the challenges of the time.The problem of the duality of the concept of minimum wage was also mentioned: the indexation of this indicator, aimed at improving the standard of living of citizens, led to a sharp increase in the cost of paying monetary penalties.

At the same time, it seems that this disadvantage was characteristic only for the period when there was no unified methodology for calculating the minimum wage. The current methodology, in turn, makes it possible to equalize the growth rate of this indicator with the growth rate of income of the majority of citizens ^[16].

Consequently, the restoration of the dependence of the amount of monetary penalty on the minimum wage is currently one of the alternative ways of calculating administrative fines.Currently, a monetary penalty in a fixed amount has been established as a sanction for most administrative offenses.

At the same time, the question of the fairness and effectiveness of this method of calculating administrative fines is called into question: for less well-off subjects of offenses, the amounts of penalties become unaffordable, and the more well-off are perceived as an "indulgence" for committing offenses in the future, without performing a preventive function. In addition, the question of the proportionality of fines to the degree of public danger of the relevant offense is often raised.

In addition, as I. V. Panova and A. B. Panov reasonably note, the size of administrative fines is characterized by inconsistency and casuistry associated with the introduction of "numerous and unsystematic changes to the text of the Administrative Code of the Russian Federation" ^{[5, p. 121]}.

It should be noted that new methods of calculating administrative fines are also being introduced. If the original version of Article 3.5 of the Administrative Code of the Russian Federation at the time of its adoption in 2001 contained three such methods, then by September 2022 their number had increased to sixteen. However, as a sanction for most administrative offenses, a monetary penalty in a fixed amount is still used, which has the disadvantages already mentioned.

At the same time, the researchers note that the problem of differentiation of administrative fines requires a comprehensive approach. In particular, I. V. Maksimov emphasizes that administrative fines should be considered as an independent system, moreover, its "internal structure, the ratio of individual types should reflect the objectively existing differentiation of administrative fines due to the nature of various administrative offenses" ^{[6, pp. 18-27]}. As M. P. Avdeenkova notes, it is advisable to give the law enforcement officer the opportunity to "vary the severity of liability measures depending on the identity of the offender and the circumstances of the offense committed" ^{[7, p. 63]}.

In this regard, the main purpose of the study is to propose alternative ways of calculating an administrative fine.

One of these methods is to establish a relationship between the size of the administrative fine and the base value (calculated indicator).

The base value (calculated indicator) is a universal value expressed in a monetary amount and established for the purpose of calculating the amount of fines. Despite the similarity with the minimum wage, this value is not tied to the minimum wage.

Considering this method, it should be mentioned about the experience of foreign countries. In the Republic of Belarus, in accordance with Article 6.4 of the Code of Administrative Offences of the Republic of Belarus (hereinafter referred to as the Administrative Code of the Republic of Belarus), the amount of the fine is determined taking into account the base value ^[17]. The sanctions of the majority of the articles of the Administrative Code of the Republic of Belarus have a relatively definite character and are formulated as follows: "the commission of an offense entails the imposition of a fine in the amount of A to B basic values," where A is the minimum amount of the fine in basic values, B is the maximum. A similar practice exists in Kazakhstan, where, in accordance with Article 44 of the Code of the Republic of Kazakhstan on Administrative Offenses (hereinafter — the Administrative Code of the Republic of Kazakhstan), an administrative fine is imposed in an amount corresponding to a certain number of monthly calculation index ^[18]. The sanctions of most articles of the Administrative Code of the Republic of Kazakhstan have an absolutely definite character and are expressed in the amount of the established number of monthly calculation indicators.

The introduction of the concept of a base value (calculated indicator) will allow timely adjustment of the size of administrative and legal sanctions, taking into account the nominal purchasing power of funds, maintaining the proportionality of administrative punishment to the nature of the offense committed.

Another way is to establish a relationship between the amount of an administrative fine and the offender's income. This idea is partially implemented in the institute of so-called "revolving fines", depending on the amount of proceeds of the offender. At the same time, it is proposed to extend this practice more widely, including to individuals.

In justification of this method, the experience of Finland can be cited: there are so-called "daily fines" (p?iv?sakko), depending on the daily income of the offender. The daily tariff is calculated according to the established formula ^{[8, p. 153]}. This takes into account the amount of taxes, the number of dependents of the offender. The official website of the Finnish police has a calculator that allows you to calculate the amount of a daily fine in one case or another ^[19].

The use of fines depending on the offender's income allows individualizing administrative responsibility. At the same time, the identity of the culprit and his property status are taken into account, which contributes to the implementation of the general legal principle of justice of legal responsibility. 

The most active discussion is caused by the amount of administrative fines in the field of traffic. There are various suggestions about ways to solve this problem.Firstly, the establishment of a relationship between the amount of administrative fines and the cost of the vehicle.

So, according to the results of one of the studies, it was found that the owners of "premium" cars of Infiniti, BMW, Mercedes-Benz, Audi, Lexus brands receive the largest number of traffic police fines ^[20].

The high cost of these vehicles is closely related to the property status of their owners, for whom the amounts of monetary penalties established by the current Administrative Code of the Russian Federation are not a significant item of expenditure, even with systematic violations in the field of traffic. Therefore, in order to achieve the goal of administrative punishment, it becomes necessary to take this circumstance into account.

At the same time, it is difficult to calculate the cost of cars taking into account their technical condition, mileage and other factors, as a result of which the methodology of the method under consideration for calculating an administrative fine needs detailed elaboration.

The first step towards introducing the dependence between the amount of administrative fines and the cost of the vehicle may be an increase in the amount of an administrative fine in cases where the vehicle is subject to an increasing coefficient on transport tax established by Article 362 of the Tax Code of the Russian Federation.

Secondly, the establishment of a relationship between the amount of administrative fines and the power of the car engine.

This method of calculating administrative fines for traffic offenses, like the previous one, is based on coherence between the amount of monetary penalty and the class of the offender's car. Thirdly, the introduction of a system of penalty points.

Administrative offenses in the field of traffic are characterized by their repeated commission ^{[9, p. 15]}.

In accordance with Article 4.3 of the Administrative Code of the Russian Federation, a repeat offense is defined as the commission of a homogeneous administrative offense during the period when a person is considered to have been subjected to administrative punishment. At the same time, in accordance with the explanations given in paragraph 2, paragraph 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 03/24/2005 No. 5 "On some issues arising from courts when applying the Code of Administrative Offences of the Russian Federation", the basis for recognizing an offense as homogeneous is a single generic object of encroachment, regardless of whether administrative responsibility for committed offenses in one or more articles of the Administrative Code of the Russian Federation ^{[10, p. 635]}. Thus, the compositions contained in one chapter of the Special Part of the Administrative Code of the Russian Federation, in this case — Chapter 12 of the Administrative Code of the Russian Federation, are homogeneous acts, since the generic object of their encroachment is the rules of the road.

Despite the fact that the repeated commission of offenses refers to circumstances aggravating administrative responsibility, is an independent qualifying feature of the composition of an administrative offense, acts as a criterion for qualifying an act as a gross administrative violation, and also has an administrative-prejudicial basis for qualifying an act as a crime ^{[10, p. 634]}, often these circumstances they do not stop citizens from re-committing a misdemeanor, especially in the field of traffic. Therefore, it seems appropriate to develop a system of penalty points that will be used to calculate the amount of administrative punishment in the form of an administrative fine.

In particular, in the case of an administrative offense in the field of traffic rules, in addition to the actual punishment in the form of an administrative fine, depending on the nature and degree of public danger of the offense committed, a certain number of penalty points may be accrued. The validity of these points is limited to the period during which a person is considered to have been subjected to an offense, established by Article 4.6 of the Administrative Code of the Russian Federation, and after this period they "burn out".

The final amount of an administrative fine can be calculated as a multiple of the number of penalty points according to the formula "A multiplied by B", where A is the amount of monetary penalty in a fixed amount, B is the number of penalty points that the offender has.

So, for example, when driving a vehicle without a driver's license (Article 12.3 of the Administrative Code of the Russian Federation), along with an administrative fine in the amount of 500 rubles, one penalty point may be provided. If a similar offense is committed within a year from the date of payment of an administrative fine, an additional penalty point is accrued. In case of committing an offense under Article 12.3 of the Administrative Code of the Russian Federation, for the third time within a year from the date of payment of an administrative fine for repeated misconduct, the amount of monetary penalty is calculated as "500 rubles multiplied by 2 points" and will amount to 1000 rubles. Upon reaching the maximum allowable score within a period determined by the legislator (Article 4.6 of the Administrative Code), it will be provided for the appointment of another type of punishment — for example, the deprivation of an individual of a special right to drive a vehicle for a certain period or administrative arrest. The introduction of a system of penalty points will strengthen the responsibility for the repeated commission of an offense, which contributes to the achievement of the goal of administrative punishment in the aspect of private prevention.Thus, it seems expedient to revise the current norms of the Administrative Code of the Russian Federation regarding the methods of calculating administrative fines.

It is proposed to introduce alternative methods, including:restoration of the dependence of the amount of monetary penalty on the minimum wage that existed in 2001-2007;

2. establishing the relationship between the size of an administrative fine and the base value (calculated indicator) is similar to how it is done in the Administrative Code of the Republic of Belarus and the Administrative Code of the Republic of Kazakhstan;
3. establishing the relationship between the amount of an administrative fine and the offender's income;
4. the establishment of alternative methods of calculating administrative fines for traffic offenses, in particular, the relationship between the amount of administrative fines and the cost of the vehicle or the power of its engine, the introduction of a system of penalty points.

          Legislative consolidation of these methods, in our opinion, will contribute to achieving the goal of administrative punishment, formulated in Article 3.1 of the Administrative Code of the Russian Federation.