Administrative responsibility based on the results of federal state control (supervision) in the field of education: maintaining a balance of interests in the light of current legislation.

Druzhinin Andrei ORCID: 0000-0002-1033-2012 Candidate of Science, Senior Lecturer, Department of General and Russian Church History and Canon Law, St. Tikhon's Orthodox University 127051, Russia, Moscow, Moscow, Likhov Lane, 6 building 1 andr.pstbi@gmail.com Other publications by this author

Some time has already passed since the reform of control and supervisory activities in Russia, which allows us to analyze both the first results and pay attention to omissions, search for ways to correct. The urgency of improving legislation is especially acutely felt during the period of global challenges, public administration bears a higher burden of responsibility. The effectiveness of the observance and implementation of citizens' rights, one of which is the right to education, largely depends on the work of the control and supervision mechanism. As one of the objects of control and supervisory activities, the field of education has also received new regulatory and legal regulations and trends in administrative procedures. Being included in the general field of reform, the emphasis in the control and supervision of organizations engaged in educational activities has shifted to a risk-oriented approach and prevention of violations of mandatory requirements, reducing costs for both executive authorities in terms of the volume and complexity of activities, and costs for bona fide control subjects.

Literary Review.

In the last decade, not so many scientific dissertations on this topic have been defended, and even fewer of those that are subject to industry specifics. Issues of administrative offenses and administrative responsibility are usually addressed within the framework of special sections of monographs devoted to administrative law. At the same time, since the administrative responsibility of officials and legal entities arises within the framework of the control and supervisory activities of executive authorities in Russia, the topic is considered both within the framework of research on the topic of state control (supervision) in general and in the sectoral context. For example, A.A. Stakhov pays special attention to the issue of administrative responsibility based on the results of control and supervisory measures as an integral component of state security, combining them within a single section on administrative and sanctioning measures of influence. Administrative responsibility (hereinafter referred to as AO) in this case is considered as "punitive administrative and tort measures" and one of the main functions of administrative and public security bodies, in connection with which A.A. Stakhov links the importance and relevance of the topic ^{[10, p. 181]}. However, among the studies of the issue in the industry context, the number of papers is usually less. Among the authors of recent works devoted to the field of education, one can single out articles by A.A. Kirillov, E. P. Kotsyurko, M.V. Ozhiganova, D. S. Ryabchenko ^{[4, 5, 7, 8, 9]}, and in the context of administrative and legal responsibility - S.D. Buntova, L.V. Krestinskaya ^{[2, 6]}. Thus, the impact of the ongoing reform of control and supervisory activities in terms of the dynamics of bringing to administrative responsibility is not sufficiently meaningful in the literature. And although not much time has passed, nevertheless, there is already some data on the generalization of law enforcement practice, the analysis of which opens up the possibility of discussion on this issue.

The problem

The new regulation on federal state control (supervision) in the field of education, approved by the Decree of the Government of the Russian Federation No. 997 dated June 25, 2021 (hereinafter referred to as FGCN, Regulation No. 997) details the list of measures to influence the violator of mandatory requirements, the last of which is the revocation of the license to carry out educational activities. It is applied when other methods of influence are exhausted, however, among the previous measures there is no clear connection with the Code of Administrative Offenses of the Russian Federation (hereinafter — the Administrative Code of the Russian Federation). Thus, the issue of the correlation of control and supervisory activities in the field of education with the obligation to attract a supervised entity to a joint-stock company has not been detailed in industry regulatory legal acts and requires additional analysis. The difficulties that arise in this case, related to the balance of private and public interests, are a problem for current law enforcement.

Goals and objectives (Research goals and objectives)

In this regard, the purpose of the article is to determine the impact of the new mechanisms of the Federal State Tax Service in the field of higher education on the principles of bringing to administrative responsibility persons who have committed an offense within the framework of public relations in the field of education. For this purpose, an analysis of the novelties in legislation adopted before and after the reform of control and supervisory activities in the Russian Federation was carried out, a comparative analysis of the generalized data of the law enforcement practice of the federal executive authority with the authority to bring to administrative responsibility in the field of education was carried out, the collection and systematization of judicial practice on the issue of bringing to administrative responsibility of persons and organizations, carrying out educational activities.

Materials and methods.

Within the framework of the study, a set of general scientific and special legal research methods was used, including:

• methods of analysis and synthesis, which allowed to generalize various approaches to the proposed topic;
• a formal legal method that contributed to the analysis and interpretation of the norms of the current legislation;

In addition, the analysis of law enforcement and judicial practice in relation to arbitration disputes was carried out, as well as the correlation of conclusions with the decisions available in the research literature.

The specification of the topic for only one type of education – higher education – is associated with the peculiarity of its legal status for the student. If the right to receive basic general and secondary vocational education is guaranteed by Article 43 of the Constitution of the Russian Federation, then when considering disputes related to the application of the measure of revocation of a license for educational activities from educational organizations of higher education (hereinafter referred to as the HE), there are no grounds for appeal to constitutional norms as the defendant's argument. Due to the fact that these features are characteristic of organizations engaged in educational activities on the territory of the Russian Federation, the geographical scope of the study is limited to the territory of the Russian Federation.

The main part (Results)

Features of administrative and legal relations in the Russian Federation in the field of education in the light of administrative reform

The general principles of administrative and legal relations in the Russian Federation have some features in the field of education that are rarely noted in the research literature. First of all, it should be noted that the Federal Service for Supervision of Education and Science (hereinafter — Rosobrnadzor) has been granted a special administrative status within the framework of administrative reform. So, it was allocated by the Decree of the President of the Russian Federation dated 15.05.2018 No. 215 from the Ministry of Education and Science for direct management of the activities of the Government of the Russian Federation. This circumstance makes it possible to regard Rosobrnadzor as a subject of legal relations directly subordinate to the Government of the Russian Federation, which, according to M.V. Ozhiganova, "indicates the importance of the direction of its activities" ^[9]. In particular, Rosobrnadzor was a special service that carries out state control and supervision in the relevant field in accordance with Federal Law No. 248-FZ of 31.07.2020 (hereinafter referred to as Law No. 248).

The subsequent entry into force of Law No. 248-FZ on 1.07.2021 coincided with the adoption of Industry Regulation No. 997. According to the novelties, the connection between control and supervisory and administrative responsibility is carried out exclusively through the sectoral federal Law No. 273-FZ of December 29, 2012 (hereinafter referred to as Law No. 273-FZ) due to the absence of any indication of this connection.

The importance of the fact of attraction to the JSC is due to the fact that according to Article 93 of Law No. 273-FZ, the fact of attracting an official to the JSC under Article 5.57 of the Administrative Code of the Russian Federation is one of the necessary conditions for applying to the court of the supervisory authority with an application for revocation of the license of a legal entity for the right to conduct educational activities. In this regard, administrative offenses and AO in the field of education are closely related to the licensing activities of the state in accordance with the Federal Law "On Licensing of Certain Types of Activities" dated 04.05.2011 No. 99-FZ.

At the same time, the system of control and supervisory measures in the field of education (hereinafter - KNM) has been rebuilt. If according to the regulations until 1.07.2021, there were supposed to be three types of FGCN in the field of education (control over the licensee's compliance with licensing requirements and conditions, supervision of compliance with legal requirements, quality control of education), then in the current situation, remaining in terms of content, they were all integrated within the unified federal state control (supervision) of organizations, engaged in educational activities (Regulation No. 997). Thus, within the framework of Rosobrnadzor's activities, several types of state sectoral regulation are closely interrelated: control and supervision of compliance with legislation, bringing to administrative responsibility and permitting activities constitute a hierarchical model of the specifics of administrative and legal relations in the field of education. These aspects should be taken into account when assessing the impact of the reform on the dynamics of administrative and legal processes in the field of education.

One of the consequences of the administrative reform in the sectoral context was the clarification of the list of persons who make up protocols on administrative offenses. Thus, even before the reform of control and supervisory activities, the principles of bringing officials and legal entities to administrative responsibility were clarified: part 4 of Article 28.3 of the Administrative Code of the Russian Federation was supplemented by Federal Law No. 514-FZ of December 31, 2014 on the powers of officials of federal executive bodies. One of the consequences of this fact was the updating and regular clarification of the "List of officials of the Federal Service for Supervision of Education and Science authorized to draw up protocols on administrative offenses" (at the moment - Rosobrnadzor Order No. 34 of January 18, 2022). This order indicates a clear correlation between the granting of the right to draw up protocols and the groups, categories of positions of the federal state civil service (hereinafter referred to as FGGS), established by Federal Law No. 79—FZ of July 27, 2004. So, according to the legislator, such a right is primarily possessed by employees whose positions belong to the highest and main groups of positions, the category of "managers". The Act does not restrict the ability of a person who does not have the relevant experience of the Federal State Budgetary Service to act as an administrative liability, allowing such an opportunity in accordance with internal regulations. Nevertheless, taking into account the qualification characteristics imposed on persons filling the positions of the Federal State Budgetary Service for the highest and main groups of positions would allow limiting situations when a person who has only recently received professional education or has no work experience in the relevant field is brought to administrative responsibility.

The second consequence of the reform, reflected in the act under consideration, indicates the clarification of powers in relation to the list of offenses assigned to Rosobrnadzor. This place can be considered generalizing for the lists of articles of the Administrative Code, correlated with regulatory legal acts containing mandatory requirements and approved by Rosobrnadzor for four types of FGCN carried out by the Service in accordance with the Regulations on Rosobrnadzor. In addition, an important component is the division of the list of administrative violations by categories of supervised objects into organizations engaged in educational activities and entities exercising delegated state powers.

One of the pressing problems in the codification of the norms of law is the absence of a separate chapter in the Administrative Code of the Russian Federation, in which articles on responsibility for offenses in the field of education would be systematized ^[6]. Agreeing with L.V. Krestinskaya about the need for amendments to the Administrative Code of the Russian Federation, we should nevertheless note that in part, this problem is solved by the introduction of a list of regulatory legal acts (their individual provisions) containing mandatory requirements for non-compliance with which administrative responsibility is provided. The study of the List allows you to complete the full picture of administrative offenses. The set of articles that set out the relevant offenses can be conditionally divided into containing special and general offenses. Agreeing with A.A. Kirillov, it can be noted that they are divided into "violations of the right of citizens to education (Article 5.57); violations in the field of entrepreneurial activity in terms of state registration and licensing requirements (Parts 2 and 3 of Article 14.1), management procedures, including state control measures (Articles 19.4.1, 19.5, 19.6, 19.7, 19.20, part 1 of Article 19.26, Article 19.30)" ^[4]. Nevertheless, A.A. Kirillov does not indicate a number of offenses that can be seen from the list of normative legal acts, and which are provided for in Articles 5.57, 6.17, 9.13 (in terms of evading the requirements for ensuring accessibility for disabled people of educational facilities and services provided in the field of education), part 2 of Article 13.21, part 3 Articles 14.3.1, part 2 of Article 18.19, part 1 of Article 19.4, parts 8 and 9 of Article 19.34 of the Administrative Code of the Russian Federation. Thus, Rosobrnadzor officials have broader powers than indicated in the research literature, which allows for a more detailed assessment of the dynamics.

However, the fact noted by S.M. Buntov ^[2] is still problematic, that not all specific prohibitions of educational legislation are provided with sanctions of the Administrative Code of the Russian Federation, for example. requirements stipulated by Part 12, Article 27, Part 6 of Article 34 of Law No. 273-FZ. It can be added that these prohibitions relate to mandatory requirements, compliance with which is checked by Rosobrnadzor, they are compared with the above articles of the Administrative Code of the Russian Federation. However, if any violation is detected, bringing the offender to administrative responsibility is a problem, because the sanction of these articles of the Administrative Code does not correspond to any of the types of offenses. In this case, Rosobrnadzor is faced with a lacuna that does not allow to obtain a court decision in favor of the supervisory authority according to the protocol, complicates further measures of influence on the offender in accordance with Article 93.1 of Law No. 273-FZ. All this speaks in favor of the work on systematization and codification of sanctions required under the prohibitions of educational legislation.

Analysis of the dynamics of law enforcement practice based on the results of the FGCN

The main source of information for analyzing the dynamics of bringing to administrative responsibility under the relevant articles were the generalizations of law enforcement practice carried out by Rosobrnadzor for 2017-2022. It should be noted that the generalization of law enforcement practice according to Regulation No. 997 is one of the five types of preventive measures provided for by the new model of the FGCN. The analysis of law enforcement makes it possible to assess the role of the reform of control and supervisory activities in identifying administrative offenses and bringing to administrative responsibility in the field of education. Quantitative values of the results of Rosobrnadzor's law enforcement practice are presented in Table 1.

Table 1 - Quantitative values of the results of Rosobrnadzor's law enforcement practice 2017-2022

The drop in the number of initiated administrative cases in 2020, related to the measures taken by the government to prevent the consequences of the coronavirus pandemic for the economy (instruction of the Prime Minister of the Russian Federation M.V. Mishustin dated 18.03.2020 No. MM-P36-1945 and Decree of the Government of the Russian Federation dated 03.04.2020 No. 438) is compensated in the first half of 2021 – the last period, within the framework of which control and supervisory activities in the field of education were carried out within the framework of Federal Law No. 294-FZ of December 26, 2008.

The moratorium on KNM introduced in 2022 does not allow direct comparison of the dynamics of administrative responsibility of educational organizations before and after the entry into force of No. 248-FZ. Thus, it is possible to compare only two half-years of 2021 with reservations that many cases were initiated based on the results of events held before July 1, 2021. Therefore, current trends in the ratio of the number of control and supervisory measures and administrative and legal consequences can be seen, taking into account the fact that bringing to administrative responsibility of legal entities and officials in the field of education is carried out with repeated failure to comply with an order that could have been issued in another year (Article 93.1 of Law No. 273-FZ). In addition, it should be taken into account the allocation after 1.07.2021 to an independent type of control of "state supervision over compliance with the legislation of the Russian Federation on the protection of children from information harmful to their health and (or) development", previously included in the total scope of the KNM.

Discussion

Thus, at the moment, within the framework of the new model of control and supervisory activities, it is possible to note a sharp increase in the number of administrative cases in relation to the number of KNM conducted. This may indicate the effectiveness of the new model of control (supervision) to identify and prosecute administrative offenders in the field of education, which, however, requires additional research on the possible lifting of restrictions on the KNM.

In turn, the analysis of judicial practice shows that bringing to administrative responsibility in itself, which is a condition for further measures of influence on the controlled entity (for example, Rosobrnadzor's appeals to the court with a request to cancel the license) is not considered by the court as sufficient grounds to satisfy the claims of the administrative plaintiff [e.g., the Decision of the Arbitration Court of the Central District dated November 16, 2022, N F10-4877/22 in case N A14-15201/2021]. In this sense, agreeing with A.A. Kirillov that "from the point of view of ensuring a reasonable balance of private and public interests in the field of education" ^[4], adjustments to the relevant legislation are required, however, we assert that the assessment of the current state of such a balance is debatable. In this regard, without giving specific assessments, we nevertheless point out that A.A. Kirillov's proposal to give the administrative suspension of the offender a judicial procedure ^[4] contradicts another position, according to which the decision to revoke the license must be carried out not in court, but by the decision of the licensing authority in the field of education with the possibility to appeal the relevant administrative the act in court.

Conclusion

In conclusion, it can be noted that administrative responsibility based on the results of the FGCN of organizations engaged in educational activities is one of the factors of maintaining a balance of private and public interests. Analysis of statistical data suggests a tendency to the prevalence of private interest. However, in our opinion, the issue of the correlation of private and public interest in education has not been resolved unambiguously, which does not allow at this stage to propose further measures to improve legislation. Such a decision now would be premature, and the development of approaches to the observance of private interests requires more time to form an analytical base in terms of law enforcement and judicial practice based on the results of the FGCN. One of the sources of such information in the conditions of the moratorium on most control and supervisory activities could be a new type of control and supervisory activity in the field of education "monitoring compliance with mandatory requirements (safety monitoring)".