Qualification of socially dangerous consequences, objectified and non-materialized harm, Condition of affect - Administrative responsibility

8.1.2. Qualification of socially dangerous consequences, objectified and non-materialized harm

Socially dangerous consequences of misdemeanors are identified with the Code of Administrative Offenses with moral, corporal (physical) harm or property damage caused to an individual by an offender, or material damage or reputational harm inflicted on a legal entity (clause 2, clause 1, clause 4.2, part 1 item 25.2). The onset of socially dangerous consequences can also be caused by the person's inactivity, regardless of the harmfulness of the act.

The onset of socially dangerous consequences is caused by a specific offense, which can be imputed to the offender only if there is objective damage (harm), i.e. Only in those cases when property damage is materialized, and physical (physical), moral or reputational harm has already been caused. However, in the overwhelming majority of cases, the presence of objectified damage (harm) is not considered by the Code of Administrative Offenses as an obligatory precondition for the qualification of the offense. In these cases, the offense is considered completed at the time of violation of rules and regulations, the failure of which entails administrative responsibility, and the infliction of material damage (harm) by the offense is qualified as an aggravating circumstance.

A minor who has committed an administrative offense, most often is not able to independently assess the social danger of the act, and therefore the CAO qualifies the commission of unlawful actions by minors as a circumstance mitigating responsibility.

When considering an offense committed by a pregnant woman or a woman with a minor child, the physiological characteristics of a person that do not always allow foresee the harm caused by misconduct are taken into account.

The list of circumstances that mitigate the liability is not exhaustive: a judge, body, official considering a case of misconduct, may be considered to mitigate circumstances not specified in the articles of the Administrative Code or in the laws of the subjects of the United States on administrative violations.

8.1.3. Affect status

In some rare cases, the unlawful action of an individual may be the result of a non-motivated action, but of a state of affect. The judge, body, official, considering the case of an administrative offense, qualify the commission of an offense in the state of affect as a circumstance mitigating responsibility.

The most important sign of affect is the momentary reaction of the person, the unusual psycho-emotional state of the subject and the suddenness of his actions, which can cause harm.

The terms affectio, affectus in Roman law were used to refer to the concepts "will", "intention", "inclination". A sensual act based on conscious emotional reciprocity was also reflected in the perception of these terms, in this interpretation affectio means sensual manifestations, but not based on love attraction (for example, disposition, addiction). Some novelists still note the difference between these two synonymous terms used in the sources of Roman law. Czech novelist M. Bartoszek qualifies affectus as an "excited state", and in later periods of Roman law development and "action in such a state". The historian of law, Professor of the University of Warsaw Fyodor Dydynsky in the content of affectus singled out primarily a psychoemotional reaction based on a strong-willed or sensual perception. Bartoshek under affectus understood a special reaction to the external manifestations of a subject acting unlawfully, guided by a sudden feeling of indignation or excitement reflecting his negative reaction to what was happening.

In order to confirm the presence of signs of affect (strong emotional excitement) as part of an administrative offense, an expert evaluation is usually required. The expert's conclusion can be taken into account in the administrative proceedings. In case of disagreement with the expert evaluation, an official of the jurisdictional body may appoint an additional examination.

It is necessary to take into account the peculiarities that soften the administrative responsibility of an individual when qualifying for difficult personal circumstances, with reference to which is understood the existence of material (property) problems that predetermined an administrative offense. According to Part 1 of Art. 61 of the Criminal Code, the commission of a crime by virtue of a combination of severe life circumstances is qualified as a circumstance mitigating criminal punishment.

Correlation of criminal penalties with circumstances that mitigate punishment is also provided for in Art. 62 of the Criminal Code, according to which, in the presence of extenuating circumstances provided for in the "and", "to" Part 1 of Art. 61 of the Criminal Code, and the absence of aggravating circumstances, the term or amount of punishment may not exceed two thirds of the maximum term or the size of the most severe form of punishment provided for by the relevant article of the Special Part of the Criminal Code.

In the case of tax offenses, a circumstance mitigating the responsibility for their commission, among others, is the commission of an offense under the influence of threat or coercion, or because of material, official or other dependence (paragraph 1 of Article 112 of the Tax Code).

In contrast to the Administrative Code, the qualification of circumstances mitigating the responsibility for the commission of an offense is always taken into account when applying tax sanctions. According to paragraph 3 of Art. 114 of the Tax Code, in the presence of at least one mitigating circumstance, the amount of the fine - the only type of tax sanction - is to be reduced by at least two times as compared to the amount established by the relevant Article of Ch. 16 Tax Code for the commission of a tax offense.

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