On the Issue of the Legal Expediency of "Automatic Sanctions" in the Russian Legal System

Osipov Mikhail Yur'evich ORCID: 0000-0002-6982-3668 PhD in Law Senior Scientific Associate, International Police Academy of All-Russian Police Association 300026, Russia, Tul'skaya oblast', g. Tula, ul. Ryazanskaya, 1 osipov11789@yandex.ru Other publications by this author

Introduction

The problem of the practicality of "automatic sanctions” is one of the problems of modern legal science. This problem has become particularly relevant in connection with the defense of a Ph.D. thesis in 2014 at the Nizhny Novgorod Academy of the Ministry of Internal Affairs by Pavel Vyacheslavovich Vasiliev on the topic: "Automatic sanctions in Russian law: theory, practice, technique" ^[1]. In this dissertation, the author recognizes the possibility and practicality of the phenomenon of "automatic sanctions" ^[1], although he acknowledges the existence of certain risks due to the presence of automatic sanctions ^[1]. However, the question arises: how appropriate and necessary is the existence of such a phenomenon as "automatic sanctions" for the Russian legal system? To answer this question, it is necessary to conduct a legal analysis of the main provisions of the "theory of automatic sanctions" ^[1] for its scientific validity.

For such an analysis to be carried out, it is necessary first of all: a) to analyze the patterns of formulation and functioning of sanctions as an element of the rule of law in the Russian legal system; b) to analyze the main postulates of the "theory" of automatic sanctions ^[1]; c) to compare the main provisions of the "theory of automatic sanctions" with the patterns of formulation and the functioning of sanctions as an element of the rule of law in the Russian legal system; d) based on the results of this comparison, draw conclusions about the scientific validity of the "theory of automatic sanctions," as well as about the possibility and practicality of the existence of "automatic sanctions" in the Russian legal system. The solution to these tasks constituted a separate stage in the study. At the same time, the author used such general scientific methods as analysis, synthesis, induction, deduction, abstraction, generalization, comparison, and private scientific methods as a formal legal approach and such an element of it as legal analysis ^[2].

The results of the study

The concept and features of sanctions as an element of the rule of law

The question arises: what are sanctions as an element of the rule of law?

According to P.V. Vasilyev: "a legal sanction is a legal consequence of illegal or deserved behavior of a person that guarantees the implementation of a legal norm, existing in the mechanism of legal regulation of public relations in the form of qualitatively and quantitatively determined measures of legal influence" ^{[1, p.8]}. In our opinion, this definition, although original, suffers from several significant drawbacks, among which the following can be attributed.

1. From this definition, it is unclear to whom these legal consequences apply.

2. What is the essence of these legal consequences?

3. The concept of the existence of such a phenomenon of legal science as "incentive sanctions" is questionable ^{[3, p.3]}.

4. Qualitative and quantitative measures of legal impact, as well as guarantees of the implementation of legal norms, are inherent not only in sanctions but also in other norms of law, as the law is a systemic education ^{[4] [5] [6] [7] [8] [9] [10] [11] [12, c.9]}.

These circumstances allow us to conclude that the definition given by P.V. Vasiliev ^{[1, p.8]} is not entirely correct. In another of his works, Vasiliev writes about sanctions as "the legal consequences of their unlawful or lawful (deserved) behavior addressed by legal norms to subjects of legal relations (addressees), changing the legal status of addressees and functioning to achieve a socially positive and significant result in the system of the mechanism of legal regulation of the relevant relations" ^{[13, p.201]}. In our opinion, this definition is more correct than the definition given in the abstract of the dissertation ^{[1, p.8]} for the following reasons.

Firstly, this definition traces the targeting of the legal prescriptions that make up the content of the sanction, and secondly, the existence of a link between the legal consequences and the behavior of the addressee of the legal prescriptions. Thirdly, the fact that the application of sanctions "always leads to a change in the legal status of their addressees" ^{[1, p.8]}. However, it is also not free from some disadvantages.

Firstly, there is some doubt about the existence of such a phenomenon of legal science as "incentive sanctions, since the presence of the fact of "merited behavior" ^{[13, p. 201]} does not entail, in several cases, the obligation of other subjects of law to apply certain incentives to a person with certain merits ^{[3, p.3]} Secondly, in some cases, the application of sanctions does not always lead to "a positive and significant result in the system of the mechanism of legal regulation of relevant relations" ^{[1, p.8] [13]}, because criminologists know cases when the application of certain sanctions does not lead to a change in the behavior of the criminal's personality ^{[14] [15] [16] [17]}. All this makes it difficult to understand such a phenomenon as sanctions in law.

What are they really like? In our opinion, sanctions are an element of a legal norm that provides for liability measures for the addressee of a legal norm that violates the legal regulations specified in the disposition of this norm and (or) other protective measures.

The signs of sanctions are the following:

1. Sanction is an element of a legal norm ^{[18] [19]}.

2. Sanctions always provide protective measures and liability measures for a person who violates the legal regulations provided for by the disposition of the legal norm.

3. Sanctions aim to restore the violated law and order and suppress its violation by both the offender and other persons ^[20].

4. The application of certain sanctions presupposes the existence of a certain law enforcement procedure, which is regulated by procedural norms ^[20].

These signs reflect the patterns of formulation and functioning of sanctions in the legal system, including in the Russian Federation.

Features of the theory of "automatic sanctions"

Next, let's consider such a phenomenon as "automatic sanctions" ^{[1] [13, p.204]}.

According to Vasiliev, "automatic sanctions are positive or negative legal consequences caused by a person's lawful or unlawful behavior, the legal possibility of direct and immediate application of which is due to the unity and immutability of his legal status from the moment of the commission of the act until the implementation of the sanction" [13. P.204]. In the abstract of the dissertation, Vasiliev gives another definition of "automatic sanction" as "a legal sanction, the legal possibility of which is directly determined by the legal fact in the form of the legal behavior of its addressee without changing his legal status from the moment of the commission of the act until the emergence of a real social result" ^{[1, p. 9]}.

From the point of view of the general theory of state and law, this definition is not entirely correct for one simple reason: the application of sanctions presupposes the emergence of a person's right to protection ^{[22] [23]}, and the emergence or termination of any subjective right means a change in his legal status, which is not consistent with the definition given in the abstract of the dissertation and other works by the author about the immutability of the legal status of a person to whom "automatic sanctions" are applied ^{[1] [13, p. 200–204] [23] [25]}. In addition, the immutability of the legal status implies "the absence of a person who is subject to automatic sanctions" of the right to protection, which is inconsistent with the provisions of articles 45–46 of the Constitution of the Russian Federation. Finally, the application of protective measures and liability measures for a person who commits an illegal act involves the establishment of the following circumstances of the case: 1) the existence of an event (illegal act); 2) who committed this illegal act, 3) whether a person is guilty of committing an offense, if sanctions provide for responsibility for its commission; 4) what protective measures can be applied in this case to a person who violated the legal prescription set out in the disposition of the legal norm 5) whether in this case circumstances are precluding the wrongfulness of the act, or other circumstances precluding the application of these sanctions. If necessary, mitigating and aggravating circumstances, as well as other circumstances included in the subject of evidence in this case, are subject to establishment ^[26]. All of the above indicates that the theory of "automatic sanctions" is an extremely controversial one from the point of view of the general theory of law. Thirdly, certain legal consequences provided for by current legislation and related to the acts of persons violating a particular legal norm do not necessarily relate to "automatic sanctions" but may be protective prescriptions of the disposition of a legal norm—for example, a person's non-admission to some transport infrastructure facilities without a personal inspection procedure.

From a logical point of view, this norm can be formulated in different ways while maintaining the identical meaning.

1. “A person may enter some transport infrastructure facilities (disposition) subject to passing the initial inspection procedure (hypothesis).” Otherwise, they may be held liable for violating transport safety rules (sanction).

2. "A person cannot enter certain transport infrastructure facilities (disposition) if they have not passed the initial inspection procedure (hypothesis)." Otherwise, they may be held liable for violating transport safety rules (sanction)."

Thus, to consider such negative legal consequences as the inability to stay at certain facilities without passing the inspection procedure as "automatic sanctions" is not an "automatic sanction," as Vasiliev mistakenly believes ^{[13, pp. 200–204]}, but only the impossibility of implementing the legal prescription provided for by the corresponding disposition of the legal norm. Similarly, in our opinion, an attempt to declare as an "automatic sanction" "termination of ownership by the owner of a thing mortgaged in a pawnshop and not in demand by him" is untenable ^{[1, p.20]} since, in this case, the pawnshop is exercising its right to foreclose on the mortgaged property, that is, the implementation of a legal right the prescription provided for by the disposition of the legal norm.

Finally, the "theory of automatic sanctions" ^{[1] [12] [25]}, in our opinion, does not answer one fundamental question: in which case "automatic sanctions" can be applied, and in which cases they cannot, in other words, what are the limits of the application of "automatic sanctions"? All this complicates the nature of understanding "automatic sanctions" as a phenomenon. In our opinion, there are no "automatic sanctions" since sanctions are implemented only through certain legal procedures and involve "proving the circumstances included in the subject of proof in the case of the application of certain sanctions" ^{[27] [28] [29] [30]}. The reason for the appearance of such theories, in our opinion, is some researchers' poor knowledge of the techniques and methods of legal analysis and the weak development of the doctrine of interaction and interrelation between regulatory, protective, and procedural norms.

Conclusion

Thus, based on all of the above, the following conclusions can be drawn:

1. Sanctions are an element of a legal norm that provides for liability measures for the addressee of a legal norm that violates the legal regulations specified in the disposition of this norm and (or) other protective measures;

2. Sanctions are aimed primarily at protecting existing law and order by bringing a person who violated the disposition of a legal norm to legal responsibility, as well as by applying other protective measures aimed at restoring the violated law and order to them;

3. A legal analysis of the regularities of the formulation and functioning of sanctions shows the impossibility and inexpediency of the existence of such a phenomenon as "automatic sanctions" in the Russian legal system, as the following circumstances must be established for their correct and effective application: who committed this illegal act; whether the person is guilty of committing an offense if the sanctions provide for responsibility for its commission; what protective measures can be applied in this case to the person who violated the legal prescription set out in the disposition of the legal norm, whether there are circumstances, in this case, precluding the wrongfulness of the act or other circumstances, excluding the application of these sanctions. All this requires the implementation of a law enforcement process, which makes it impossible and impractical for such a phenomenon as "automatic sanctions" to exist, and the theory of "automatic sanctions" itself is not completely scientific, as, in our opinion, it inadequately describes and explains the legal reality.

4. The reason for the appearance of such theories, in our opinion, is the poor knowledge of some researchers of techniques and methods of legal analysis and the weak development of the doctrine of interaction and interrelation between regulatory, protective, and procedural norms.

In our opinion, these are the features and main disadvantages of the "theory of automatic sanctions" ^{[1] [12] [24] [25]}.